WEBCommentary(tm) - Duke Case: No "Team Crime," Cash

The seventh edition of A Treatise on the Law of Crimes (Clark and Marshall), published in 1967 and one of my law school books, states: "Property Unlawfully Acquired or Possessed.--The fact that property has been acquired or is possessed unlawfully, or even criminally, does not deprive it of its character as property, or outlaw it, so as to withdraw it from the protection of the criminal law, and prevent it from being larceny to feloniously take and carry it away. It has been held from a very early day that property may be stolen from one who has himself stolen it, and that the indictment may lay the ownership in him."

On July 30, 2007, Cash Michaels posted my article titled "Duke case: Nifong 'apology" and other nonsense, dated July 28, 2007, on a website called Talkstoppers (definitely not to be confused with LieStoppers) with this comment: "From conservative Michael Gaynor's column today regarding the money stolen from the dancers. If I'm reading him accurately, he's suggesting Nifong went after the team for the wrong crime."

No, Cash. Mr. Nifong was wrong to "go after" "the team" instead of the facts. "[T]he team" didn't commit any crime; the rogue prosecutor went after the team for the sake of winning a Democrat primary by manipulating the black vote; and assuming that all team members are equally innocent or equally culpable is simplistic.

I actually wrote in that article: "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 possibilities that the strippers had taken money under false pretenses and someone had taken some of it back without consent."

That's an acknowledgement of the possibility that there was larceny by "someone," NOT by "the team."

I'm a lawyer and an independent commentator, not a lawyer for a particular player or an apologist for anyone.

LieStoppers posted David Evans' written statement reported that money had been taken, without identifying a taker.

Mr. Evans' lawyer, Brad Bannon, had assured me that Mr. Evans is "one of the most honorable and stand-up people [Mr. Bannon] ha[d] ever met or known in my life."

If Mr. Bannon was right about that, I needed to take Mr. Evans' statements about himself and his teammates seriously.

(1)"Ryan McFady[e]n said that he wanted to take money from the black girl's purse"; (2) "Peter Lamade said he had their money"; (3) "I don't know if Ryan or him took the money"; (4) "I took the money to Dan and told him to give it back and get them out"; (5) "Dan said he gave $100 for them to open the door"; (6) "when we got back Danny gave me $260 that he still had from what was taken"; (7) "I gave him a $100 bill because he had paid extra. He won a $100 of beer pong. I put the $160 in my desk, and the next day put it on our living room table."

If someone intentionally took money from a stripper's purse and brought it to Mr. Evans without the stripper's consent, that taking might be determined to be larcenous even if the taker (1) thought it was reasonable to take the money because the money had been obtained under false pretenses and (2) wanted to spare the court system the trouble of ruling on whether the money had been taken under false pretenses and should be returned.

Mr. Evans did not identify a taker, however. Yes, he gave the Durham police the names of two possible takers, but he did not accuse either of them.

Mr. Evans did state that HE took possession of the money, however, and then gave it to another co-captain with an instruction to return it. (Mr. Bannon found it "precious that [I] put so much credence in Newsweek’s characterization of Dave as MC"; I didn't, but Mr. Evans referred to the stripper party as "my party" in the list of attendees he provided to the Durham police and his statement does indicate that he took charge of the taken money.)

Mr. Bannon's statement further indicated that $260 was not returned, so he gave $100 of it to a co-captain to keep and put the rest in his desk and then "on our living room table."

Mr. Evans' statement reflects his believe that the money had been "taken" and his instruction to return it was correct. When part of the money was taken back to him, his decision to secure $160 for a brief time makes sense, but his other decision to give $100 to another co-captain does not make sense to me, unless he believed (for a reason not explained or immediately apparent) that the initial taken had been consensual or had been subsequently ratified by the person from whom it was taken.

LieStoppers posters have noted that I made a distinction between Mr. Evans, then a senior co-captain, and Reade Seligmann and Collin Finnerty, then sophomores.

In "Duke case: Treat Duke Three as Individuals and Give Due Credit," posted on April 18, 2007, I wrote:

"Each of the Three deserves great credit for dealing with his persecution with great dignity and each deserves to be treated as the individual he is instead of a caricature created to promote an agenda."

"It was a stripper party, for which the co-captain hosts bear much more responsibility than simple attendees, but the politically correct zealots are not castigating everyone who ever watched a stripper and stripping, hiring strippers and watching strippers are all legal in North Carolina and the party was off-campus.

"It appears that Messrs. Seligmann and Finnerty learned from their experience of attending that party and then being subjected to what Professor Johnson called 'the highest-profile case of prosecutorial misconduct in modern American history' and 'months of public assaults on their character from journalists or professors for whom their case provided an opportunity too tempting not to exploit.'

"The truth is that Messrs. Seligmann and Finnerty (as well as co-captain and co-host David Evans) became human sacrifices on the altar of political correctness."

"Having illegally obtained the McFadyen email, Nifong and the police had him come downtown for a 'visit' on April 5 and presented the following choice: either be willing to testify that he saw the 'attackers' in the bathroom with Mangum and turn state’s evidence on the rape charges, or the authorities would release the email. One has to understand what was happening. Nifong and the police were giving him the choice either of committing perjury or being humiliated publicly.

"By giving him this choice, of course, those involved were committing a felony. First, they had broken the law in obtaining the email and, second, they actively and knowingly were suborning perjury. People who commit such crimes can spend many years in prison, but in this situation, those who allegedly enforce the law in Durham were the ones who shamelessly were breaking that law.

"McFadyen, to his everlasting credit, told police and the prosecutor he would not lie for them. After all, there had been no rape, no kidnapping, no sexual assault, no 'brutal' beating, nothing. He had seen nothing and would not testify to having seen that which did not happen. Unfortunately, because of the state of law in North Carolina, Ryan McFadyen paid a horrific price for showing integrity, something that anyone in authority in Durham or Duke University has yet to show, even more than a year after this affair began.

"After McFadyen’s refusal to commit perjury, Judge Ronald Stephens, the former Durham County prosecutor who covered for his one-time employee, Nifong, then released the email, which was given to journalists all over the country. Stephens, a judge who has sworn to uphold the law, ordered that an illegally-obtained email that had nothing to do with the case be released and publicized because the young man who wrote it was refusing to break the law (which Stephens had sworn to uphold) by lying under oath.

"The aftermath of the release was predictable. Duke University suspended McFadyen, and he is roundly attacked even now. (The university lifted the suspension in late June, 2006.) Writers from publication like Sports Illustrated and Newsweek have claimed that he had done everything but commit Crimes Against Humanity. A Google search turns up more than 80,000 hits, and he has had his life threatened on more than one occasion.

"In writing this defense of McFadyen, a young man with whom I have had the opportunity to speak at length about the lacrosse affair in general, I realize that I am almost certain to receive hateful emails myself, as I usually receive when writing on this subject. Yet, those who attack McFadyen forget (or perhaps simply refuse to recognize) that this is a young man who has integrity and demonstrated integrity when the authorities demanded he lie under oath in a court of law.

"Ryan McFadyen is someone who paid a very heavy price for being honest. Duke University has an honor code, but when one of the university’s students demonstrated honor under real pressure, the university suspended him. Perhaps President Richard Brodhead would have preferred that McFadyen lie under oath and save the university the embarrassment of one of its students having written a sophomoric email (for which McFadyen has apologized repeatedly)."

Mr. McFayden also is NOT "broomstick boy," the team member who made a very crude suggestion to the second stripper after she had insulted him (and neither is any of the three wrongly and wrongfully indicted players).

Finally, in "Duke Case: From Phony First-Degree Felonies to Phony Petty Theft?," posted on February 6, 2007, I stated my view: the prosecution "would have to be insane to pursue another bogus (and petty) charge!"

Mr. Michaels apparently forgot or missed it (I get that occasionally), but I did write in the article:

"Mr. Michaels: 'But beyond the alleged felonies, prosecutors could also probe who went into the accuser’s bag while she was away from it at the party, and allegedly took at least $240.00 from it before she left.' That would be larceny, petty larceny, not robbery!

"From persecuting people based on bogus sex charges to pursuing a hope that something might be prosecutable: petty larceny!

"Mr. Michaels: 'The Carolinian/ Wilmington Journal newspapers have been quietly following up on tips about the alleged robbery since last fall. It’s a question no one in the media has ever really focused on, Duke Three support bloggers have challenged, and apparently even the Duke Three defense team wants to stay away from.'

"Right! With bogus first-degree felony charges pending, Duke Three supporters should have been thinking petty theft!

"When this nonsense collapses of its own weight, how about prosecuting the entire team but one for partying while white and the black team member for partying with whites?

"Mr. Michaels: 'On the March 16, 2006 search warrant listing of evidence recovered from 610 N. Buchanan Blvd – the alleged crime scene where the LAX party occurred – police note that beyond the accuser’s "make up bag, cell phone, and identification…a pile of twenty dollar bills were recovered inside the residence totaling $160.00 consistent with the victim claiming $400.00 cash in all twenty dollar bills was taken from her purse immediately after" the alleged sexual assault.'

'On a March 27 search warrant application for the Duke dormitory room of unindicted LAX player Ryan McFadyen, Investigator Benjamin Himan listed among the items to be seized “United States Currency totaling $340.00 or portions of said currency (all twenty dollar bills)."

'The reason that figure is $100.00 more, sources say, is because some of the players allegedly pushed an extra hundred dollars under the bathroom door to entice the accuser and the second dancer to come out after they had locked themselves inside out of fear.'

"First there was a gang rape in the bathroom. Now the strippers locked themselves in the bathroom.

"I have castigated young Mr. McFayden for his unfunny email, but 'sources say' he's much too intelligent to steal money and leave it where it could be found nearly two weeks later!

"Mr. Michaels: 'Why police focused in on McFadyen for the missing money is not clear, especially since, according to records, it was not recovered.'

"Mr. Michaels: 'McFadyen is the player who was suspended from school after authoring a controversial e-mail that talked about having more strippers over for a second team party the next night, then "killing the bitches," and cutting their skin off for his sexual gratification.'

"The foolish email was inspired by 'American Psycho' (which is studied at Duke). I have consistently criticized Mr. McFayden for writing it, but be fair, Mr. Michaels: put it in context and criticize the curriculum too instead of insinuating that Mr. McFayden meant his email to be taken seriously. And note that, while the email was disgusting, it was NOT racist.

"Mr. Michaels: 'To date, even though Durham Police searched his dorm room and vehicle, McFadyen has not be[en] charged with, or alleged to have committed any crimes in association with Duke assault case.'

'In a Tuesday, Dec. 19, 2006 written request for comment regarding the Duke Three defense’s change of venue motion, The Carolinian/Wilmington Journal newspapers asked Brad Bannon, one of the defense attorneys representing former LAX team Co-Captain Dave Evans, if, as alleged, "the [team] silence was to protect the player who allegedly took money out of the accuser’s purse, and only put back part of it."

'Atty. Bannon answered the question pertaining to the motion, but never addressed the alleged robbery issue, even to deny it as attorney Thomas did months earlier.'

"Mr. Michaels: 'Mike Nifong did accuse the players of erecting a wall of silence and calling on their daddies and expensive lawyers to shield them, when he knew the captains at 610 N. Buchanan, including Dave Evans, had not called their parents or lawyers when police arrived at their house on March 16,' Bannon wrote. 'They helped [police] execute the search warrant and then volunteered to give statements without lawyers, to give DNA samples, to take polygraph examinations, to sign over the e-mail accounts, and to do anything else the police wanted them to do to assist in the investigation. Nevertheless, after Mike Nifong’s wall of silence comments, hundreds of people protested outside their home, many holding signs or actually placing signs on the home lamenting the wall of silence.'

"Mr. Michaels: 'While he was quick to both admonish and challenge the questioner on every other item of contention, Bannon never even denied in his on-the-record written response the allegation that at least one of the LAX players took money out of her bag at the party.'

"Is a non-denial by an attorney in a written response to the press now evidence of guilt?

"Mr. Michaels: 'It was the only subject in his long list of answers that Bannon ignored.'

"Did the questioner follow up at the time or wait until later to use the non-response to buttress a bogus robbery charge that is a desperate attempt to afford a modicum of credibility to a prosecution that has been a persecution?

"When The Johnsville News made what Mr. Michaels and I both considered an unfair attack upon him, he and I not only agreed that the charges were unfair, but making them anonymously was even worse.

"Mr. Michaels proceeded to offer an account 'from a variety of sources over the past five months' of what 'is alleged to have occurred between 12 midnight and 12:25 a.m. on March 14 at the lacrosse party.'

"I will not review Mr. Michaels' account, lest I omit something, other than to say that a key element of larceny--criminal intent--seems to be missing and that I am perplexed as to how the strippers could have been paid a few minutes into their performance and somehow left the money in 'the bathroom where they made themselves up prior to performing' based on the account.

"Mr. Michaels: 'Sources confirm that a March 22 interview session between the LAX players and Durham police investigators was indeed canceled, in part, because attorneys for the players and their parents did not want questions asked about the missing money, or who brandished the broomstick.'

"Mr. Michaels: 'While LAX players now tell the press that they wished they would have been allowed to speak 10 months ago so it didn’t appear like they were hiding something, they still won’t address specifics about what did, and did not happen at the party, except to insist that no rape or kidnapping occurred.'

"It's not every prosecutor who does what Mr. Nifong seems to have done: create liability to a civil suit to follow a perverse prosecution. Specifics will be addressed at a suitable time.

"Mr. Michaels: 'Whether the special prosecutors will follow up on the missing money is unknown.'

"Having seen the error of Mr. Nifong's ways (and some of the results), they would have to be insane to pursue another bogus (and petty) charge!"

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.