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"And ye shall know the truth, and the truth shall make you free." - John 8:32
WEBCommentary Contributor
Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  September 1, 2007
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Topic category:  Other/General

Duke Case: North Carolina Nonsense

Mr. Nifong's one-day sentence confirms that the Duke case is symptomatic of general problems, not utterly aberrational.

Defense lawyer Jim Cooney on Judge Osmond Smith's decision in the Nifong criminal contempt case: "Today felt like the end of a Greek tragedy. It was a tragedy for the boys and their families, but it was also a tragedy for Mike Nifong who at one point seemed to be a decent, honest prosecutor and lost his way."

"[L]ost his way? As in deliberately chose the Dark Side for the sake of money, power, fame and electoral success, his duty to be a fair and objective minister of justice be damned?

That tops defense attorney Joe Cheshire equating North Carolina journalist and television commentator Cash Michaels and me: "Michael Gaynor has no more to do with the defense of these innocent young men than you have to do with the prosecution of them. You are both commentators."

We bloggers had more to do with the defense than Mr. Michaels did with the prosecution and, among others things, I repeatedly reported the existence of the exculpatory evidence Mr. Bannon "discovered" months later, while Mr. Michaels refused to tell his readers that he had examined the documents that Mr. Nifong had produced in discovery and realized that Mr. Nifong had no evidence.

With Mr. Nifong's contempt of court conviction, Mr. Cooney struggled to make the case that one day in jail was suitable punishment and to show respect for Judge Ronald Stephens, Mr. Nifong's former boss and character witness, who notoriously allowed the Ryan McFadyen email to be made public after Ryan refused to lie for the prosecution and had to be punished and then sat on the late Kirk Osborn's meritorious motion to remove Mr. Nifong from the case for his outrageous actions.

Jim Cooney: "While many of you may have hoped for more time, the simple truth is that the sight of a former elected DA reporting to jail for lying during a prosecution that has cost him everything has enormous consequences for this State and across the country. While many may cynically say this is not much punishment, attorneys will, for the most part, respectfully disagree."

The simple truth is thay one day is 24 hours and an observer need not be cynical. that is, have a sneering disbelief in sincerity or integrity, to believe that one day in jail is token punishment for Mr. Nifong's criminal contempt.

Mr. Cooney's words put him squarely in the one-day-in-jail-is-much-punishment camp.

"MUCH PUNISHMENT"?

For lying to the court about a matter as important as those exculpatory DNA results? (Mr. Bannon said at the contempt hearing not only that they were important, but that Mr. Nifong's lawyer knew it and he was right on both counts.)

No wonder so many decent folks lack confidence in North Carolina's criminal justice system and the criminal justice systems elsewhere.

Mr. Cooney is the one who pandered to Mr. Nifong by withdrawing the late Kirk Osborn's meritorious motion to have Mr. Nifong removed from the case.

He called those "many" "who disagreed with him "cynical" and then did "respectfully disagree."

But Paris Hilton wouldn't consider it "much punishment," it seems to me.

She was a bit late to court, but she didn't try to sent three young persons to prison for up to thirty years on bogus charges.

Michael Vick is looking at up to five years and his victims were animals, not human beings.

Attorneys who may practice before Judge Smith may all "respectfully disagree," but the simple truth is that of just punishment, the sentence made a mockery.

LieStoppers poster Carolyn did not forget that Mr. Cooney had done some things right in the Duke case, but she too would not be gulled.

Carolyn:

"Mr. Cooney, first let me tell you of the profound respect I hold for both yourself and Mr. Bannon. That being said, however, the one day sentence is a mockery.

"Law exists only insofar as the citizens fear it - by which I mean the Biblical definition of fear - i.e., 'reverential awe and respect'. Mockery destroys that and that is what we saw today. A District Attorney was found guilty in court today of lying about evidence he'd concealed in order to frame 3 innocent men for a rape that never happened. Michael Nifong did not 'fear' the law - instead, he held it in such mockery that not only did he try to jail innocent men, he even laughed out loud in a court of law when one of them was forced to listen to death threats. Nifong mocked the law again and again and finally today he was held accountable for that mockery. Except - the sentence for his mockery was a mockery itself.

"Mr. Cooney, the law cannot exist unless it is feared - if the people do not fear the law, they will not obey it. But there is no fear of 24 hours. It is a mockery. You cannot avoid that fact by pointing to something else - i.e., Mr. Nifong's disbarment, his legal expenses, his public shame, etc. - and say they will instill fear. The problem is that 'they' were never at issue in Judge Smith's court. What was at issue was something different - i.e., did Nifong mock the law by lying in court about concealed lab evidence? The answer was 'yes', he refused to obey that law and thus mocked it. Therefore, to restore awe and reverence of the law, you had to restore the 'fear'. But Judge Smith didn't. No matter how anyone puts it, the truth still remains that there is nothing to fear in a single solitary day. One day. 24 hours.

"Mr. Cooney, if any attorney could defend that ridiculous sentence, it would have to be you (or Mr. Bannon). But the very fact that you refuse to defend it (instead bringing up a poignant memory of Reade's father) proves a 24 hour sentence can not BE defended.

"I'm sorry, but IMO what happened today was that a corrupt DA was not made to fear the law. And that is something that will have fearsome consequences."

Fortunately, the defense only had to deal with the likes of Mr. Nifong and Dr. Brian Meehan and they did that effectively.

Mr. Nifong's one-day sentence confirms that the Duke case is symptomatic of general problems, not utterly aberrational. Brad Bannon still may want 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.” But the truth remains that North Carolina's criminal justice system needs major reform, not fine tuning, and the North Carolina Legislature adjourned without even providing for grand jury transcripts.

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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