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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 6, 2007
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Duke Case: Obtuseness, Real or Feigned?

False accuser Crystal Gail Mangum and former rogue prosecutor Michael B. Nifong are not North Carolina's only liars and Mr. Nifong and Dr. Brian Meehan were not the only persons who knew that the second set of DNA tests uncovered the presence of multiple male DNA not attributable to any of the 46 white players on the 2005-2006 Duke University Men's Lacrosse Team.

When the defense motion for additional DNA discovery was publicized last December, 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."

I had known that since June of 2006, written about it twice that month and forwarded the two articles to my defense contact (among others).

Knowing what the results were was not enough, of course. What was needed was the proof. It was up to the defense to obtain it in the course of discovery and make use of it. It was in a "foreign language"--DNA. But a DNA expert (at least a careful one) would be able to find it and explain it, if given the underlying data. False accuser Crystal Gail Mangum and forner rogue prosecutor Michael B. Nifong are not North Carolina's only liars and Mr. Nifong and Dr. Brian Meehan were not the only persons who knew that the second set of DNA tests uncovered the presence of multiple male DNA not attributable to any of the 46 white players on the 2005-2006 Duke University Men's Lacrosse Team.

I was a mere messenger, an intermediary. Not a North Carolinian at risk. A New Yorker who passed on the message, thought the defense got it and expected the defense to do what it ultimately did (although I expected that, having a particular reason to know the evidence was there, the defense would have given the underlying data to a reputable DNA evidence to interpret it and then prepare the defense to explode the case by exposing both Dr. Meehan and Mr. Nifong). Brad Bannon decided to learn DNA, found the proof himself and THEN consult with a reputable DNA expert. That made him the finder instead of the retained reputable DNA expert. So be it. My interest was that the proof be found as soon as possible, not in who found it.

Mr. Bannon not only said that he had not been pointed in the right direction, but testified that he did not think he would find what he found.

Mr. Bannon: "I am not sure what Don Yeager and Mike Pressler meant when they wrote that I had a 'hunch' about the DNA. To a person, anyone who has ever asked me about the DNA process has received the same explanation as I have posted here & explained during my State Bar testimony. That is because it's the truth."

I don't know whether Mr. Bannon learned of any of my repeated reports before he studied the underlying documentation or had a hunch, but I thought that everyone on the joint defense team would have gotten the word and if he had that hunch, it would not have surprised me.

As for not suspecting it might be there to find, given what the defense had learned about both false accuser Mangum and former rogue prosecutor Nifong, I did not think that any lawyer on the defense side was so trusting, or gullible, or naive (pick any of those words).

LieStoppers' poster skeptical: "If you read Gaynor's recent posts on this issue, he lists 3 paragraphs in 3 articles starting in June, 2006 out of the dozens he has written about the Duke case where he talked about DNA from unidentified males. This observation was buried in the articles and not highlighted in any way. Gaynor just assumed that the defense knew about this information from Gaynor's confidential source. However, according to Bannon, they did not have this information, and it irks me that Gaynor is blaming Bannon and the defense for not reading every paragraph Gaynor has written about the case."

Wrong, skeptical. I do not blame the defense for not reading all my writing about the Duke case and I did not "just assume" that the defense or Mr. Bannon read every paragraph I wrote. Rather, I had reason to believe that the first two articles reporting the fact were promptly forwarded to a meticulous defense lawyer and the word would spread to those who should know.

Some people blame a messenger for news they do not want. That's part of the human condition.

If you look where a skilled magician wants you to look, you will be fooled.

Jim Cooney is adroit. There's no dispute about that. He's part Wizard of Oz and he doesn't want people looking behind the curtain. Not only does he want people to focus on "what the forest looked like in December" of 2006 instead of "a single [inconvenient] tree," to use his words, he assured readers that "there is no such thing as a pretrial motion to dismiss under NC criminal law."

Mr. Cooney: "While many now say that they knew this all along (and some of them might be telling the truth), the fact is that the DNA was all exculpatory from the beginning and we had no reason to think that there was even more that we were not being told. As to those attorneys who may now be claiming that they were advising anyone on the defense team that there was more to the DNA than we were seeing, that is just simply not true - - and appears to be part of an orchestrated campaign on behalf of at least one person to try to claim credit for this result and discovery when he is entitled to none."

That's the Mr. Cooney who (1) replaced the late Kirk Osborn as Reade Seligmann's lead attorney and promptly withdrew Mr. Osborn's bold motion to have Mr. Nifong removed as prosecutor in the Duke case (thereby sending the erroneous message that Mr. Osborn was wrong to have made the motion and Mr. Nifong really was a fit prosecutor, notwithstanding his outrageous and highly prejudicial pretrial statements and rant about castigating Joseph Cheshire, among other things) and (2) finished the examination of Dr. Brian Meehan at the December 15, 2006 hearing (after Brad Bannon, who found it amusing that some did not know that he was not a novice when it came to sex cases but for whatever reason decided to learn to speak fluent DNA just in time to appreciate that he had been mistaken to take Mr. Nifong at his word, even though Mr. Nifong then was a member of the North Carolina bar in good standing, and find evidence of multiple male DNA that had, gasp, not been reported).

First, I write myself what I believe should be written, don't have an orchestra or an amen chorus, have consistently campaigned by myself for the whole truth to be known about the Duke case and against confidential settlements that conceal important parts of the truth, state what is a simple fact--that I repeatedly reported the presence of multiple male DNA not as result of dogged investigative reporting but solely as a result of being put in a position to do so--and don't claim or accept credit for "the result" or "the discovery."

Second, my connection to the defense was through Eileen Cornacchia, Collin Finnerty's aunt, who confirmed that "(1) my practice was to deal with the defense through [her]..., (2) I expressed my surprise about the defense’s apparent ignorance of what to expect BEFORE Brad testified that he did think as of September 22, 2006 that he would not find evidence of multiple male DNA ...and (3) my email did not surprise [her] (after all, I had forwarded my June 20 and June 30 articles directly to [her]." With the benefit of hindsight, I wish I had called up Mr. Osborn and asked him if he knew, but the facts are that I did not even think of doing it, I dealt solely with members of Collin Finnerty'sfamily and I believed that the joint defense was very well coordinated.

Third, I am not interested in taking credit for what Mr. Bannon and Mr. Cooney did and give them full credit for it (just as I gave full credit to Senator Barack Obama for supporting a federal investigation into the Duke case, my fundamental disagreements with him notwithstanding). Actually doing what they did is a big deal, undiminishable by knowing for what to look. (Ironically, NOT knowing for what to look under the circumstances does not...look good for them.) I thought they knew for what to look. If the coordinated and efficient joint defense was not as coordinated and/or efficient as I (and others) thought it was, then that's part of the whole truth.

Mr. Cooney's insinuation notwithstanding, I seek not credit for "the result," but to point out that a number of people besides Mr. Nifong and Dr. Meehan knew, no one was willing to publicly state it, but one (at least) used a blogger safely outside North Carolina to report it, without attribution. The fact is that plenty of supporters of the players have maintained anonymity (examples: John in Carolina, Johnsvile News, nearly all the LieStoppers and, for a time, the irrepressible Crystal Mess, Mike McCusker). Things obviously are not good down there, as reflected by the whole truth about Mr. Nifong's subpoena for private records: Duke secretly produced them and then pretended that it had not, both in letters to players and by remaining mute during Mr. Nifong's motion to enforce the subpoena. A number of people knew that the material had been produced, of course, but NOT ONE said so when the court was asked to determine whether or not the material should be produced! That court proceeding was theatre, farce, played out for effect. But NO ONE in the Durham County's District Attorney's office or at Duke dared to say so at the time.

As to the subject of credit:

Instead of SEEKING credit, I have GIVEN it, unstintingly and sincerely, to whom deserved and when deserved, in my view.

Examples of those I credited with respect to the Duke case: the late Kirk Osborn ("Duke case: You won. Kirk Osborn,' posted on March 25, 2007); the late Ed Bradley ("Duke case: RIP, Ed Bradley--we'll do the rest," posted on November 10, 2006);Stuart Taylor ("Duke case: Stuart Taylor led the way," posted on May 24, 2007); K.C. Johnson ("Duke case: KC Johnson deserves a Pulitizer Prize, not NYT," posted on September 14, 2007); Joseph Cheshire and Brad Bannon ("Judging Duke case defense strategy," posted on August 5, 2006); Reade Seligmann and Collin Finnerty (Duke case: Treat Duke Three as individuals and give due credit," posted on April 17, 2007); Rob Wellington ("Duke case heroes and villains," posted on August 21, 2006); Devon Sherwood ("Judging Duke case defense strategy," posted on August 5, 2006); Senator Barack Obama ("Duke case: Congratulations, Senator Obama," posted on March 27, 2007); The Independent Women's Forum ("Duke case: "Fair, smart and right from the start independent women," posted on March 16, 2007); Tricia Dowd ("Duke case: Truth and Tricia Dowd, yes; Hoax and 88ers, no," posted on March 12, 2007); Stefanie Williams ("Duke case: Stefanie Williams says it all," posted on July 11, 2007); Eileen Cornacchia ("Duke case: Aunt rebuts character assassin," posted on July 10, 2007; Ann Coulter ("To the Duke lacrosse players, Ann Coulter apologized," posted on March 10, 2007); Thomas Sowell ("Duke case: Sowell, yes; NC NAACP, no," posted on November 22, 2007).

Of course, my position on the Duke case was, is and will continue to be consistent with the title of my September 12, 2006 post: "The Duke Three should prevail with the truth, not silence." Those who have a problem with some of the truth being told have a problem with me. But, as I wrote in "The search for a Duke case hero," posted on August 30, 2006: "we should not let tunnel vision blind us to the whole reality." Even if it means the joint defense team does not look quite perfect, Mr. Cooney. That at least ONE source anonymously undermined (or tried to undermine) the cover up is something that should not be...covered up!

Liestoppers poster Newport, who has issues with me but (like me) is an independent thinker instead of an apologist or a sycophant, commented: "I have had my issues with Gaynor including not suscribing to his puritanical views insofar as they inform his conservatism [Note to Newport: I'm an orthodox Catholic, not a Puritan]....BUT I do believe he has done a great deal of good in this case and I don't think all the attacks on him of late have been fair. I don't even know the guy, have never communicated with him, but from his writing he strikes me as a decent man and he spent a lot of time and energy with NO COMPENSATION trying to spread the word about this travesty to help three kids he didn't even know. Kind of like many of us here."

Note to Newport: People can be on the same side and have different opinions, especially on strategy, but facts are facts and what brought people of widely disparate views together in support of the players were the actual facts. The facts are that I fortuitously came to be in a position to report what I reported without attribution; I not only reported it without attribution, three times, but also put the articles in the pipeline to the defense, and expected the defense already knew and surely suspected. What was critical was not knowing for what to look (though it sure helps to know for what to look), but securing the proof, untainted, which the defense did, over the objections of Mr. Nifong and Dr. Meehan, thanks to Judge Osmond Smith. But I was shocked when Mr. Bannon testified that he did not think he would find it: even if no one specifically brought it to his attention (and I expected it had been), I think he should have expected the DNA tests to show what it showed if the tests were done properly and the underlying documentation was not falsified, for reasons I have stated and some I learned off the record and therefore cannot publicly state.

LieStoppers poster Mark Rougemont:

"To be fair to Mr. Gaynor, I don't see this as a 'I told you so' but more of a defense of his opinion on what the defense knew and when they knew it. Most of his articles are not 'too-long' either, most are short and concise like this one from June 30, 2006 in which he mentions the DNA:

'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.'

"Link here: http://www.renewamerica.us/columns/gaynor/060630

"Maybe it can be said that he didn't shout out this information as something extraordinary, or some surprising revelation that only he had knowledge of, or hold up a sign saying 'Pay attention defense team-Read this. My personal opinion is that most who would have read that at the time were not surprised about it, most already suspected that to be the case, perhaps the source of his information may have aroused some curiosity at the time. Based on his ardent support of the accused Duke players, I would have to say that he was not trying to hide or bury anything other than not revealing his source, and I find his responses now to show a complete and utter shock that the defense team did not have advance knowledge of this information.

"A lot of you know that I had tried to maintain a neutral stance on this case and that I was not a huge fan of Mr. Gaynor. I recall stating at one time that he was howling at the moon. I was called an enabler on many occasions and some of that I could understand even if I didn't see it as being 'fair'. Putting that label on Mr. Gaynor is in my opinion, not a fair assesment of him or his contributions on the behalf of the falsely accused."

Thank you, Mr. Rougemont. There are two separate, but related, points: (1) I reasonably believed that the two June 2006 articles in which I reported the presence of multiple male DNA were forwarded to a defense attorney by my contact on the defense side and (2) I also believed that the defense also knew it before I fortuitously found out.

As for the possibility of a motion to dismiss:

As I pointed out last November, North Carolina General Statutes Section 15A-954(a)(4), states: "The court on motion of the defendant must dismiss the charges stated in a criminal proceeding if it determines that...[t]he defendant's constitutional rights have been flagrantly violated and there is such irreparable prejudice to the defendant's preparation of his case that there is no remedy but to dismiss the prosecution."

Well-intentioned people may disagree as to whether the motion should have been made.

I am pleased to note that the November 15, 2006 post of Michael McCusker (Crystal Mess), another attorney who supported the players pro bono, set forth the same statute and then stated:

"As correctly noted by Mike Gaynor, in the best article yet published setting forth the absurdity of the claim that a trial must be had to fully adjudicate the Hoax, just such flagrant violation and irreparable prejudice has been perpetrated upon the defendants. Judge Stephens' ridiculous Order compelling a particular class of individuals, i.e., all white members of the 2006 Duke Lacrosse team, to submit to photographic and DNA identification processing was unconstitutional. White, male, non-team individuals attended the subject party. No investigation was undertaken to determine whether Mangum's alleged attackers were of one or the other group. Stephens' Order was made despite the utter absence of probable cause to believe that any particular individual member of the team 'class' had committed any felonious offense.

"Further, the affidavits of Assistant District Attorney David Saacks and Investigatior Benjamin Himan, offered in support of the application for the identification procedures sought, were perjurious. Their sworn representations alerted Stephens to 'medical records that were obtained by subpoena' indicative of Mangum having 'signs, symptoms and injuries consistent with being raped and sexually assaulted vaginally and anally.' As you, of course, now know, medical records had not yet even been printed, let alone obtained by law enforcement authority, at the time Saacks and Himan swore to the lies quoted, and said records, once obtained, contained no memorializations remotely tending to substantiate Saacks' and Himan's contemptible perjury. Accordingly, the photographs Mangum viewed when making her sham 'identifications' of April 4th should never have been ordered to have been taken in the first place.

"The unconstitutionally ordered photographs were then 'used' by Nifong and Mangum and Gottlieb in what is quite probably the most procedurally tainted and flagrantly unconstitutional 'lineup' ever. When you consider both the constitutionally impermissible 'lineup' of April 4th, and the glaring inconsistencies in Crystal's prior 'identifications' of March 16 and 23, but one conclusion obtains: The photographic 'identification' of the Duke Three, and any hypothetically proffered in-court identification at trial must both be suppressed. The identifications are little more than nothing. Without them, of course, the corrupt prosecutor has less than nothing.

"Inasmuch as criminal statutes are to be strictly construed, movants must, to be entitled to dismissal under NCGS 15A-954 (a)(4), show both flagrant violation of their constitutional rights [check] and that 'there is such irreparable prejudice to the defendant's preparation of his case that there is no remedy but to dismiss the prosecution.' This second requisite is what will make the Wannabelievers bang their pots and shout, 'But they have the best defense team money can buy! Even if their constitutional rights were flagrantly violated, surely they have not been irreparably prejudiced in the preparation of their case.' Stand up to the Wannabelievers, Oz. Tell them to sit down and shut up.

"Strict construction of criminal statutes does not equate to tortured, absurd construction. Were it not for the corrupt prosecutor's self-interested need to indict so as to cement the Black vote before a primary election he would have lost but for the beneficent materialization of the Hoax, the depth and breadth of reasonable doubt would have become apparent at a probably cause hearing. Mr. Seligmann's alibi, as well as the totality of exculpatory evidence would have been force-fed down Nifong's throat, the matter never would have made it to the grand jury, and the indictments improvidently granted would never have been returned. Owing exclusively to Nifong's political expediency, the defendants were irreparably prejudiced from preparing, and presenting, their cases at the earliest, 'speediest,' appropriate time. Had they been permitted to do so, this railroad would have been stopped in its filthy tracks nearly seven months ago. Federal due process compels that their constitutional rights not be yet further flagrantly violated by being forced to defend, and pay to defend, baseless accusations forward to a dog-and-pony show trial.

"Having never spoken to the accuser, Nifong has no clue as to her credibility (other than what he reads in the papers and blogs) and, thus, cannot claim to slog forward because he 'believes her.' That's a crock. For him, it never was, and is not now, about her. This travesty yet tends only to fuel Nifong's desperate hope of saving his professional skin on securing convictions rooted in jury nullification. While any such convictions would surely be overturned on appeal is of no moment. Justice delayed is justice denied.

"Naturally, defense counsel must move for dismissal. It is disturbing that they have not yet done so. I don't profess to know their motives. I do know, from two decades of civil and criminal litigation practice, that, as surgeons make less money referring their patient candidates to physical therapy than by, um, actually performing surgery, criminal defense attorneys typically make less money forcing disposition by way of motion than they do trying cases."

Then there is the disappointing United States Department of Justice letter:

A LieStoppers poster recently announced receipt of this answer to a letter to the Civil Rights Division of the Department of Justice last December about the Duke case:

"July 30, 2007:

"Dear *********,

"This is in response to your letter dated December 20, 2006 in which you allege that the District Attorney has violated the civil rights of three Duke lacrosse players. We apologize for our delay in responding.

"The Criminal Section of the Civil Division is responsibe for enforcing federal criminal civil rights statutes. Much of our enforcement activity relates to the investigation and prosecution of deprivation of civil rights under color of law. These matters generally involve allegations of excessive physical force or sexual abuse by law enforcement officers.

"We have carefully reviewed the information you furnished. However, we have determined that your complaint does not involve a prosecutable violation of federal criminal rights statutes. Accordingly, we are unable to assist you.

"You may wish to contact the nearest legal aid program or the local bar association to determine whether they may be able to assist you."

The letter was issued in the name of Mark J. Kappelhoff, Section Chief, Criminal Section, Civil Rights Division, but signed by "paralegal specialist" Danielle Garcia.

Former (that's great to type) Durham County, North Carolina District Attorney Michael B. Nifong didn't even try to sexually or otherwise physically assault any of the members of the 2005-2006 Duke University's Men's Lacrosse Team (he's evil, and perhaps self-destructive, but not THAT self-destructive), so the United States Department of Justice did not perceive a prosecutable violation of any federal criminal rights statutes.

If a law enforcement official beats up a person because the person is black (or white), the feds can bring a case, but if he tries to frame on bogus first-degree felony charges and send to prison for decades defendants who are white when he would not have done so if they were black, the feds don't get involved, but refer to "the nearest legal aid program or the local bar association."

That referral would have worked just fine for the Duke Three, right?

I don't know whether Attorney General Alberto Gonzales knew about the letter (or whether he would remember it).

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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