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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:  November 2, 2007
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Topic category:  Other/General

Duke Case: Federal Investigation, Finally?

According to Concerned Citizen, AAG Coman told her that the accuser needed to be locked up so she could never harm anyone else ever again.

John Fitzpatrick, president of the Durham Criminal Defense Lawyers Association: "If a federal investigation [of the Duke case] is what they want, let them proceed. But let their motives be pure. Let's hope it isn't fueled by vindictiveness."

Durham County, North Carolina's criminal justice system desperately needs purifying, obviously.

NOT the Seligmann family.

The notion that former rogue prosecutor Michael B. Nifong was the only one who went over the line in the Duke case is absurd.

A prominent Durham defense attorney demanding purity of those seeking justice and declaiming against "vindictiveness" when the prosecutors and the police may be the ones investigated tells us how bad it is there.

On October 9, 2007, Jim Cooney, a North Carolina attorney representing Reade Seligmann, wrote to Acting Deputy Attorney General Craig S. Morford, U.S. Attorney Anna M. Waggoner (Middle District of North Carolina), and U.S Attorney Christopher Christie (District of New Jersey), and sent a copy to Jim Coman of the Special Prosecutions Division of the Office of the Attorney General of North Carolina.

Mr. Cooney's letter revealed that the North Carolina Attorney General had asked for federal help in investigating possible crimes by governmental officials in connection with the Duke case, questioned (in general terms) the impartiality of the United States Attorney for the Middle District of North Carolina and expressed faith in a joint federal-state investigation.

Mr. Cooney:

"I represented Reade Seligmann and his family in connection with the false criminal charges filed against him in Durham, North Carolina. I continue to represent both him and his family in connection with issues that arose during this false prosecution, and specifically whether crimes were committed by various government officials during the conduct of that prosecution.

"As Mr. Christie is aware, in early January 2007, I directed Reade and his father to make a report concerning the circumstances of this false prosecution to the U.S. Attorney for New Jersey. At that time in the case, the central police report was found to have been prepared months after the events it purported to detail, was based on no contemporaneous notes of significance, and contained information that was flatly contradicted by other contemporaneous documents leading to a potential conclusion that parts of this report had been fabricated. The Director of the private DNA Laboratory had admitted in open court that he had not reported on the results of all DNA testing based on an agreement with representatives of the State of North Carolina, and specifically the then-District Attorney of Durham County. The results that had not been reported contained plainly exculpatory information. Information that had effectively been concealed from the defense. The Lab Director further admitted that the failure to report these results was a violation of his own laboratory's protocols and testified that the then-District Attorney was well aware both of these results and of the fact that they were not reported. Further, and within a week of these admissions, an investigator for the then-District Attorney 're-interviewed' the false accuser. The story told by her at that time appeared to be nothing more than a complete fabrication designed to blunt Reade Seligmann's known alibi; yet, the then-District Attorney made it clear that he would continue to prosecute Reade based upon this new version, seeking to have him convicted of felonies that carried prison terms of decades.

"Based on these developments, it was my opinion that the continuing prosecution against Reade Seligmann was not only false, but was being manipulated by officials under the color of North Carolina law for the purpose of obtaining a conviction regardless of the truth in the case. These acts, in my judgment, were potentially criminal. However, since the District Attorney is the chief law enforcement officer for Durham County. it was plain that the then-District Attorney would not investigate himself. It was also clear at that time that there was little that the Attorney General of North Carolina could do. Since his jurisdiction is extremely limited and since he has no power to convene an investigative grand jury under North Carolina law, I was concerned, further, that the United States Attorney in the Middle District of North-Carolina might face a potential ethical issue in any investigation into the events unfolding in Durham. That is, it appeared to me that the United States Attorney for the Middle District could have a conflict in conducting an investigation into law enforcement authorities and prosecuting authorities with whom she is required to work and conduct investigations on a regular basis. Because Reade and his family lived in New Jersey, and because many of these acts involved the use of interstate communications which had a direct effect in New Jersey, Reade and his father met with the United States Attorney for New Jersey about these concerns. To put it simply, the victims of these potential criminal acts were in New Jersey and it appeared that the federal authorities in New Jersey would be capable of conducting the full, fair and open investigation necessary without any concern of addressing potential conflict of interest issues.

"In January, and for several weeks and months thereafter, Reade and his father met with Assistant United States Attorneys and provided the Motions, transcripts and other pleadings that were part of the public record. It is my clients' understanding that a meeting was scheduled between these assistants, representatives of the United States Attorney's Office in the Middle District of North Carolina, and members of the Attorney General's Office of North Carolina in early September. Apparently, after the federal prosecutors arrived in Raleigh, they were directed not to meet with members of the Attorney General's Office. Despite repeated inquiries by my clients, they are still unclear as to why these prosecutors after having traveled to Raleigh were denied permission to even meet with representatives of the Attorney General of North Carolina.

"My clients and I are aware that, on the eve of the long-scheduled visit by these federal prosecutors to North Carolina, the interim District Attorney of Durham County made a referral request to the Attorney General. It is my clients' understanding that since the time of that referral and cancellation of the meeting between federal investigators and the Attorney General, the Attorney General's Office has transmitted a written request for federal involvement in a joint investigation into the events of this case. As you should be aware, there is a significant and recent history of State and Federal authorities joining- together to investigate allegations of official corruption in North Carolina. These include the investigation and eventual prosecution of former Speaker of the House Jim Black, the investigation and eventual prosecution of former Secretary of Agriculture Meg Scott Phipps, and a number of other investigations involving state legislators. The Attorney General of North Carolina simply does not have the investigative tools that are at the command of the federal government, including the ability to convene an investigating grand jury. Moreover, Congress has made actions such as those which appear to have taken place in this case a crime when committed by government officials under color of State law with the intent of depriving United States citizens of their liberty. In short, both from a substantive law standpoint, and based on the investigative tools at its disposal, participation by the Government of the United States in an investigation with North Carolina authorities is critical to any full, fair and open evaluation of the facts of this case.

"On behalf of Reade Seligmann and his family, I respectfully request that the Government of the United States grant the request of the North Carolina Attorney General and participate in a joint investigation into the events of this prosecution. It may very well be that, at the end of such an investigation, both the Government of the United States and the Attorney General conclude that no crimes (other than those for which punishment has already occurred) have been committed. If so. then my clients will know that this determination was the result of a process that was full, fair and complete, that the investigators had the tools that they needed to search for the truth in these cases, and that the final decision was the result of objective prosecutorial analysis unencumbered by any ethical constraints.

"I look forward to receiving your reply on this very important matter to my clients."

As Mr. Spock would say, "Fascinating."

The defense has sung the praises of the North Carolina Attorney General's Office since Attorney General Roy Cooper applied the word "innocent" to their falsely accused and maliciously prosecuted clients, but, as I reported in "Duke case: Prolonged prosecutorial disgrace finally stopped," posted on April 11, 2007: "The Duke case is still a Democrat scandal, Durham County, North Carolina District Attorney Michael B. Nifong is still in office, false accuser Crystal Gail Mangum still has not been charged with filing a false report and the problems with North Carolina's criminal justice system that permitted, facilitated and prolonged the case still have not been remedied...."

Now Mr. Nifong is out of office and ineligible to practice law, but the rest of what I wrote is still so.

In the same article, I also reported:

"Last year a very concerned citizen (Concerned Citizen) unconnected to Duke University or to any of the Duke Three (Reade Seligmann, Collin Finnerty and David Evans 06) filed a complaint with the North Carolina Attorney General's Office about then interim District Attorney Michael B. Nifong's conduct with respect to the Duke case.

"The next day (September 22, 2006), that concerned citizen was contacted by a person at the North Carolina Attorney General who identified himself as Assistant Attorney General James Coman (AAG Coman).

"AAG Coman stated that the Attorney General's office was getting hundreds of letters about the Duke Lacrosse Case and also Mr. Nifong.

"He then said that there was just something about Concerned Citizen's letter that needed some personal attention. He didn't want that particular concerned citizen (not a North Carolinian) to receive the standard form letter (and he apparently wanted to discuss the Duke case with a real rape victim).

"AAG Coman asked Concerned Citizen about her background as a rape survivor and whether she had done anything about her attacker.

"She replied yes, she had pursued him in court.

"AAG Coman then asked her if she believed the 'accuser' in the Duke lacrosse case.

"She told him NO, because real victims don't change there stories that many times.

"She explained that a rape is a snap shot in time, something that is embedded in the mind of the person raped for the rest of that person's life, something the details of which are not forgotten.

"She further explained that when an accuser is lying, it is easy to tell: the accuser will start backing away from the main parts of her story and normally the case then is over.

"Concerned Citizen then told AAG Coman that Mr. Nifong was doing background check on people that sent him e-mails just saying they weren't going to vote for him. She had copies of one such e-mail and Mr. Nifong's reply and she reported this to the United States Department of Justice too.

"AAG Coman then advised Concerned Citizen not to believe anything that the defense lawyers in the Duke lacrosse case say!

"AAG Coman also asked Concerned Citizen to forward the e-mail from Mr. Nifong to him so he could confirm that she actually had a copy.

"AAG Coman made it harder, by refusing to give Concerned Citizen his e-mail address, so she had to print out and fax to AAG Coman via a land line fax machine.

"The telephone conversation was briefly interrupted by faxing (the concerned citizen's fax machine and home phone shared the same line).

"AAG Coman called back and inquired whether the correct e-mail had been sent.

"It had NOT been (it's the Duke case), but eventually the correct email was faxed in full to AAG Coman.

"AAG Coman then stated that this was indeed Mr. Nifong's e-mail address and that he noticed that the original sender didn't give his name or state of residence. When he looked at Nifong's reply he remarked that Nifong had used a name and the state where the gentleman lives.

"AAG Coman asked Concerned Citizen if she lived in the same state.

"The answer was no.

"AAG Coman not only talked about the Duke lacrosse case with Concerned Citizen, according to Concerned Citizen, but also another case that was either heading for his office or already there, involving a judge accused of taking money from an elderly person and putting it in his own account.

"During the conversation, AAG Coman made several statements about the Duke lacrosse case.

"According to Concerned Citizen, AAG Coman expressed his feeling that the Duke Three are innocent as well as shared his opinions about Duke students, the Duke Three and their lawyers.

"Opinions expressed included:

(1) Ever since Richard Brodhead became the president of Duke University, the university seemed to have gone out of control and 'Brodhead would rather throw his students off campus to live rather than keep an eye on the partying that students do.'

(2) The students of Duke University are nothing but a bunch of little rich kids that come down here and make trouble and have their parents get them out of trouble.

(3) Several of the defense attorneys are only doing this case for the money and don't care about there clients.

(4) He had known most of the defense lawyers for more that twenty years and he knows how they operate.

(5) He stated that two of the three main lawyers are media hungry and one of them was not Wade Smith.

(6) He said he would not name names but you seem like a very smart young woman and I think you know whom I am speaking about.

"Concerned Citizen replied that she thought he was talking about Kirk Osborn and Joe Cheshire.

"AAG Coman did not respond to that, but did say that he is afraid to say anything about Attorney Smith because he would be eaten alive in court if he did.

"Note: Wade Smith is John Edwards' former law partner.

"According to Concerned Citizen, AAG Coman told her that the accuser needed to be locked up so she could never harm anyone else ever again.

"At the end of the call, according to Concerned Citizen, AAG Coman told her that there was nothing that the North Carolina Attorney General could do about Mr. Nifong and that if he had just met Concerned Citizen on the streets of Raleigh and they had just had this same conversation, he would not have believed a word if it, but because Concerned Citizen had the e-mail from Mr. Nifong to another person, he said, 'I have to take everything we have talked about for the past hour and twenty minutes as the truth because you are sitting on the evidence.'

"The gentleman who provided 'the evidence' to Concerned Citizens emailed me about it on September 25, 2006, as follows:

'I sent this complaint into the NC AG office today, don't know how many mistakes are in it, but thought I would forward it to you, you can do what you want with this.

'I am writing to complain about DA Michael Nifong, Durham County District Attorney. I sent him an e-mail I asked in the mail why he was withholding discovery from defense lawyers in the Duke Lacrosse Rape Case. I further stated I would vote "anybody but Nifong vote Cheek." I never mentioned my Name or the State where I lived, but somehow in his response he used my name and state of residence. Here was his response: "Gee, Bill. Does this mean you are moving down here from NJ just to vote against me? I am flattered. Bad news, though. You'll be stuck with me at least until the end of December." I know that I listed both on my profile page on America on Line, but how does Mr. Nifong get away with looking me up, on company time and how far did that lookup go. I am sure being a quasi law enforcement agency, he has the county resources to look up e-mail addresses or he could simply be a member of AOL. Since his e-mail was time stamped 12:52PM 9-19-2006, then he was probably at work using county equipment on county time. Add to that the fact that his answer was sarcastic and arrogant. I really never expected to get an answer from Mr. Nifong and I was quite surprised and flattered that he did answer me. I know that in his last court appearance and in previous ones, that he has told the court that his office had more cases then the Duke case, as a retired P/O, with 25 years of service, I am certainly aware of that, but he seems to have time to answer e-mails from out of state e-mailers and do research on the e-mail addresses. I have been told you cannot do anything unless Mr. Nifong has done something illegal, how about abuse of government computers, resources, time and taxpayer money, in the use of those resources. I want to thank you in advance for listening.'

"The North Carolina Attorney General's office was on notice that Mr. Nifong was out-of-control, but waited instead of acted.

"Finally, evidence of deliberate concealment of exculpatory evidence exploded in a court hearing in December and the North Carolina State Bar and North Carolina's 99 other district attorneys put enough pressure on Mr. Nifong that Mr. Nifong asked the North Carolina Attorney General to replace him on the Duke case.

"About North Carolina Attorney General Roy Cooper and his Senior Deputy Attorney General (Mr. Coman), do not be deceived.

"They just watched as the prosecution that was a persecution continued and then dawdled after Mr. Nifong decided he had to be relieved."

There's plenty for the United States Justice Department to investigate.

The sooner, the better.

The more thoroughly, the better.

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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Copyright 2007 by Michael J. Gaynor
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