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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 3, 2007
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Duke Case: It Starts with Respecting Sources

Sources establish the parameters; when their need for confidentiality is clear, it's useless to expect them to do more and it is dishonorable to violate their parameters; and if their parameters and confidentiality are not respected and it becomes known, others do not risk becoming sources.

My pointing out that Brad Bannon "discovered" in November of 2006 what I fortuitously had learned and reported thrice, starting with a June 20, 2006 article, suggests that communication between the blogosphere and the defense was far from perfect. It came as news to many that I had reported the presence of multiple male DNA much earlier and reaction has ranged from surprise that it apparently was not appreciated and suspicion that the defense had not been flawless to distress and even denial that I had written what I had written. At least one poster doubted that my report really was in the articles: denial. Another poster complained that I was too vague: willful blindness. Others blamed me for not being in direct contact with defense lawyers: I was communicating with a relative of an indicted player who had contacted me who was communicating with the parents and one defense lawyer and when one defense lawyer indirectly asked me to speak with his investigator about another aspect of the case, I immediately complied with his request. One tortured soul even hypothesized that I wrote it three times, expecting and hoping it would be ignored instead of appreciated, so I could bring it up later, as though I wanted to prolong the Duke case and enable Mr. Nifong: delusion. And then there are those who blame me for not violating a confidence by identifying a source who preferred not to be identified or violating a source's parameters yet would rightly condemn me if I violated their confidence: hypocrisy.

In "Duke case: Why I focused, now need not, but still will, focus on it," posted on December 19, 2006, I explained:

"I plan to still focus on the case. NOT because the Duke Three still need help. Because there are important lessons to be learned if their suffering is to have meaning.

"We need to fix the criminal justice system, institutions of higher education like Duke University and the biased mainstream media, so that there are no more cases in which innocent persons are deliberately prosecuted anyway, abandoned by their universities in the name of liberal mythology and pilloried by the media because their being guilty would make a great story."

Jim Cooney: "Lord knows in 25 years I have made a lot of mistakes, many of them in the courtroom. This case, however, was one of the few cases in which I have participated that everyone of our strategic decisions was proven to be correct. Many of you will remember how we were accused of coddling the prosecutors and being part of a corrupt system when we agreed to postpone the suppression hearing and give the AG a lengthy extension. We were pummeled worse than Nifong by many. However, we decided to go for a home run - - a declaration of innocence - - because the case had now changed. We thought it was a very long shot, but it was worth the chance for our kids. During the 3 month delay, many people lost faith with us, and our clients got desperate. Some of that desperation was fueled by comments on the blogs ridiculing the delay and accusing us of incompetence (or worse) for agreeing to it."

First, I appreciated the defense strategy and wrote that the defense should NOT be blamed for the delay:

"Ardent supporters of the Duke Three (Reade Seligmann, Collin Finnerty and David Evans) are distressed, yet at least one member of the defense team professed to be 'excited' instead of dismayed.

"Distress and dismay, even disgust, are natural reactions by good people to the prolongation of an utterly undeserved ordeal. {Message to Brad Bannon: Yes, I applied that to David Evans too.)

"Fortunately, justice eventually will be obeyed in the Duke case, if not based on principle, then out of interest.

"That said, let's not blame the defense attorneys for the delay until Monday, May 7, 2007."

Second, I do not agree with Mr. Cooney that ALL of the defense's strategic decisions were "proven to be correct." One of those strategic decisions was to have the late Kirk Osborn replaced as lead Reade Seligmann attorney and have the replacement lead counsel (Mr. Cooney) withdraw Mr. Osborn's May 1, 2006 motion to remove Mr. Nifong from the case, as if the withdrawal would induce Mr. Nifong to do the right thing instead of plumb the depths of depravity. Mr. Nifong had made those outrageous and highly prejudicial pre-trial statements and raged to Kerry Sutton that he would castrate Joseph Cheshire, David Evans' lead attorney, for embarrassing him, and I understood that the defense (rightly) feared the possibility that evidence would be planted, so any defense expression of faith in Mr. Nifong's integrity strikes me as odd. To his eternal credit, Mr. Osborn realized that for complete exoneration to come, the war had to be won in the courtroom of public opinion first and Mr. Nifong had to go and he boldly tried to make it so (at a cost that I'd be pleased to write about, but won't, because I respect the parameters set by sources).

Disgruntled poster:

"If Gaynor was in daily contact with the relative of an indicted player why didn't he just tell this person flat out about this information instead of putting in it in an article that they may not read right away? And it wasn't even the main point of the article.

"The fact that there was unidentified male DNA on the rape kit items is a pretty big deal, to put it mildly. It was hugely exculpatory and Nifong failed to turn it over. Why not explain that to this person so they can get in contact with someone on their legal team and check out Gaynor's source?

"Basically why put the burden on relatives and lawyers, who had a lot on their minds, to read through this article and discover a couple of sentences on their own?"

Sources establish the parameters; when their need for confidentiality is clear, it's useless to expect them to do more and it is dishonorable to violate their parameters; and if their parameters and confidentiality are not respected and it becomes known, others do not risk becoming sources.

Stated otherwise, blame North Carolina, not me, for what you perceive as a source's timidity.

There are many confidences with respect to the Duke that I have respected, and will continue to respect, tempting though it may be not to do.

If Mr. Bannon didn't expect to find what he found, then (1) he's naive, in my view, because there was plenty of evidence that Mr. Nifong was willing to do just about anything to win that Democrat district attorney primary, Dr. Brian Meehan cut his fee to get in on the Duke case and law students are taught from day 1, "Don't assume" AND (2) my articles reporting the presence of multiple male DNA were not read, or not read carefully, or not believed, or not passed on as I understood they were being passed on, or kept from Mr. Bannon for a reason of which i am unaware.

More than one source set parameters that I reluctantly respected.

In "Duke case: Prolonged prosecutorial disgrace finally stopped," posted on April 11, 2007 and is available at http://www.renewamerica.us/columns/gaynor/070411, I wrote about an affidavit provided to the defense by a person whom I described in the article as "Concerned Citizen" instead of by name, in accordance with parameters.

I would have preferred to write about that affidavit sooner, but I respected my source's parameters and had cleared the part of the article related to "Concerned Citizen" in advance, so that I could post it as soon as the North Carolina Attorney General made his announcement.

"Concerned Citizen" provided valuable insight as to how the North Carolina Attorney General's office responded to the Duke case, but by the time it was out the defense lawyers were in praise-the-North-Carolina-Attorney-General's-office mode, and the facts "Concerned Citizen" memorialized and I posted did not fit.

During the ordeal I wrote articles based on inside information, and went as far as I was permitted:

Example 1: "D.A. Nifong: My political need trumps wise police strategy, posted on October 31, 2006 (yes, Halloween) and available at http://www.renewamerica.us/columns/gaynor/061031, stating in part: "Mr. Nifong claimed he did not watch the '60 Minutes' expose (if he didn't, his wife Cy did and taped it too), but I am told by a well-placed source that Mr. Nifong was so concerned about it even before it was broadcast that he demanded from the Police Detectives that someone be arrested for the killings on Monday, October 16."

Example 2: "Duke case: Ashley Cannon, please speak up," posted on January 1, 2007 (yes, New Year's Day) and available at http://www.renewamerica.us/columns/gaynor/070101, beginning "Ms. Cannon, instead of a Happy New Year, I wish you an earnest examination of conscience and pray that you do what is right," and concluding:

"Mr. Cannon, I have a few questions for you.

"Yes, Ms. Cannon, I really do.

"First, about his interest in prosecuting Elmostafa, cab driver and alibi witness, did Mr. Nifong tell you to lie?

"Second, if so, how can you live with yourself, how can you sleep at night, if I may pry?

"Third, did you tell your colleague and friend A.D.A. Phyliis Trachese that Mr. Nifong told you to lie?

"Fourth, if so, as to your hospitalization after the cabbie's acquittal, will you tell the world the real reason why?

"Fifth, would you rather take a polygraph test or, Fifth Amendment rights, assert?

"Sixth, do you think career advancement worthwhile when innocent people get hurt?

"For your answers, Ms. Cannon, my breath, I won't be holding,

"As, the Duke case denouement, I continue to watch unfolding."

I was contacted by persons who shared what they were willing to share. I made evaluations of credibility and proceeded to do what I believed (and still believe) was right.

I always encouraged sources to contact defense lawyers. Really.

When a source chose not to do, I did what I believed I properly could, no less and no more.

In a message dated 8/1/2007 5:40:17 P.M. Eastern Daylight Time, Mr. Bannon wrote: "Mike, since you have chosen to post your response to this e-mail, I would appreciate it if you could post it in its entirety on your website. I withdraw my implied request for the e-mail not to be published."

I replied:

"Unlike, for example, KC, I do not have my own website, as your request assumes. I am a contributor to several websites, which usually, but not always, publish my articles.

"You don't need my permission to post it yourself, but if you want it anyway, it's yours.

"I respected your expectation, or implied request, just as I respect a source's concern for confidentiality.

"What I forwarded for posting is posted. Other than to correct occasional garbles or typos, my posts are not revised (and then not always, despite my requests)."

Still, I do want to accommodate Mr. Bannon so the text of his two May 8, 2007 emails to me are set forth below.

Mr. Gaynor,

I just read your recent post about some of my comments that I made to Dave Dixon when he interviewed me for KC Johnson’s blog. I am writing for clarification, not for publication.

First, you really need to distinguish between progress and perfection. My comments clearly did not paint a perfect picture of the criminal justice system in North Carolina. (After all, we’re not New York.) What they painted was a pattern of clear progression in this state over the last several years toward recognizing flaws in the system and working toward fixing them. The examples I gave demonstrate that progression and cannot seriously be viewed as “spin” by anyone who has seriously analyzed reforms in the criminal justice system in our state over the last decade. The establishment of IDS has dramatically increased the quality of indigent representation in this state. The Chief Justice’s Innocence Commission established guidelines that are moving across this state regarding eyewitness identification (ignored though they were in the Duke case). Open file discovery dramatically expanded defendants’ statutory rights to pre-trial discovery, far beyond that required by the United States Constitution as interpreted by the United States Supreme Court (that expansive language allowed us to get a lot of the information we used to destroy Nifong’s wrongful prosecution). The Commission on Actual Innocence is the first of its kind in the United States and adds yet another layer of postconviction relief to convicted prisoners with claims of actual innocence. Recent reforms in our ethics laws allowed us in the Duke case to publicly (and ethically) fight back against Mike Nifong’s public relations blitz that so poisoned Dave, Collin, and Reade. Do all of those reforms make North Carolina’s criminal justice system perfect? Have we made all necessary reforms? Is the Duke case the only seriously flawed prosecution to occur in North Carolina, even as we speak? Certainly not. But the reforms of the last decade unquestionably show a clear pattern of progression--a train on the right track, if you will--toward a fairer system. It is not “spin” to report that fact, anymore than our fight to clear the names of these young men involved “defense lawyer spin.” Rather, those reforms show the work of a state that is willing to recognize flaws in its system at every level--pre-trial, trial, and post-conviction--and change them for the better. They show the work of many people dedicated to true criminal justice in this state, including several members of the Duke lacrosse defense team who have worked countless & tireless hours outside of compensated courtroom roles to see that progress is made. Some of us have also done that at great risk to our careers.

Second, you are seriously mistaken about your characterization of the approach of Joe Cheshire and me to Mike Nifong. On March 30, after Nifong refused to meet with us, we sent him a letter warning him to cease his public comments, citing the ethical rules he was violating, and telling him that he had already threatened the rights of anyone to a fair trial in Durham. That same day, under the protection of recently enacted ethics rules, we called the first press conference in this matter challenging Nifong’s public comments and admonishing the media (and the public) from falling in line behind him. Every time there was a new revelation about how badly he was pursuing this case, we made that revelation known. If you bothered to obtain all the pleadings we filed in the case (individually on behalf of Dave and then collectively as primary drafter on behalf of the entire defense team regarding discovery issues and the gag order issue), as well as the transcripts of the hearings, you will see all you need to know about how we challenged the improper handling of this case at every step, as we should have. Kirk Osborn, my friend and fellow warrior, deserves every bit of praise you give him for his characteristic display of courage in this case. But he was not the only person--or even the first person--to challenge Mike Nifong inside and outside the courthouse in ways that risked a lot and, ultimately, served truth & justice in this case.

Third, you’re equally wrong about all defense lawyers approaching all cases the same way. Sure, there are those defense lawyers (mostly on television in “Law & Order” shows based in New York) who approach every case the same way: stridently mocking the prosecutors and saying things like, “You’ll never be able to prove that,” or constantly saying “My client is innocent” with a wry smile. But like so many other macro generalizations, it often falls apart at the micro level. Please do some research and pull up the last time Joe Cheshire and I let our 22-year-old client walk out in front of a county jail and tell the world he and his co-defendants were innocent and to frontally challenge the very man who held the most power over him in this state. Please do some research and pull up the last time we welcomed DNA test results before they came back. Please do some research and pull up the last time we called an alleged victim in a rape case a “false accuser” long before it became fashionable to do so. Or I’ll save you the time: it has never been done. Because we do not treat all of our cases the same way.

I agree that the folks at Liestoppers did a remarkable job pulling together issues related to the Conference of DA’s and open file discovery. If you read far enough into that post, you’d see that one of the articles they quoted was mine from several years ago, when I helped lead the fight to get open-file discovery. I have been working with Joe and others for many years, in sunlight and shadow, to make my state’s criminal justice system better for everyone. It is not perfect, but it is far better than it was just 10 years ago. That is a fact, not spin, and it was the only point I was making when I said that Nifong’s handling of the Duke lacrosse case should not be seen as the quintessential example of North Carolina’s evolving criminal justice system in practice in 2007.

--Brad Bannon

I appreciate you sending this e-mail, because it shows me how little you know about the case.

If you read the Attorney General’s Report with Dave’s handwritten statement, you would see that it essentially adopts his statement (much more so than that of the other captains) as the true narrative of that night’s activities. That is no coincidence. Dan Flannery did make the arrangements and calls, according to him and other witnesses who were around him when he made the calls. Dave did collect money. And Ryan and Peter did approach Dave about taking the money back, at which time he told them not to. Multiple eyewitnesses, including Ryan and Peter themselves, confirmed that. Dave also explained the sequence of events about the strippers going in & out of the house in the exact way the AG’s Final Report memorialized those events based on all of the available evidence.

No, Mike Nifong didn’t 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.

I think it’s precious that you put so much credence in Newsweek’s characterization of Dave as MC and BMOC. I’m sure you felt the same confidence in their April 2006 cover story that put Collin & Reade on the cover under the headline, “Sex, Lies, and Duke,” and then let Nifong spew some of his “hypothetical” speculation about the evidence which we now know was not true.

Anyway, I’m sorry you’ve chosen to dislike Dave Evans and feel less sympathy for him, especially for the reasons you state. It says a lot about you and your “familiarity” with the case, as well as your character. I also wonder if you’re part of the crowd who secretly (or not so secretly) thinks Dave should have suffered more because he & his co-captains arranged a party with alcohol & strippers, a stupid choice for which Dave immediately accepted responsibility. If that’s the case, you should know that Dave Evans is one of the most honorable and stand-up people I have ever met or known in my life. I’d be lucky to have him as a brother, and you’d be lucky to share the same space with him. Even if Newsweek doesn’t see it that way.

Note: When Mr Bannon wrote these emails to me, he and I each had copies of the co-captains' written statements, but they had not been made public to the best of my knowledge. I had the statements off the record and therefore could not post them or write about them. Promptly after I found them posted on LieStoppers, however, I wrote: "Duke case: Follow money, discover all, do justice," posted on July 1, 2007. Mr. Evans' statement speaks for itself.

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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