Topic category:  Other/General

I think so.

Cash Michael, in the August 14, 2006 issue of The Wilmington Journal (Part of the Black Press USA Network), reported that Durham Police Chief Steve Chalmers "is standing strong by his investigators and their work" in "the Duke lacrosse alleged rape case" and referred (without any specification) to "what solid evidence authorities have in" that case," but Mr. Michael seems to be preparing his readers for the collapse of the prosecution.

Mr. Michael wrote that "defense motions, probing questions and published reports...cast some doubt" on the prosecution's case.  That's putting it mildly.

Mr. Michael apparently agreed and added: "[The defendants']  alibis, along with heretofore weak evidence on the part of the state, has challenged the credibility of the Duke case, and all involved. If a crime indeed happened, observers note, the prosecution and Durham law enforcement, so far, seem ill-prepared to prove it."

To buttress that point, Mr. Michael quoted a statement made last month by Professor. Irving Joyner of North Carolina Central University’s School of Law (NCCU being the accuser's school): "I think the prosecution has been wounded by what the defense has done up to this point.”

It's a fatal wound, Professor.

Mr. Michael noted that Durham County District Attorney Michael D. Nifong himself had conceded that "some of what he publicly promised the investigation would produce, hasn’t occurred."

To be sure, as Mr. Michael reported, Mr. Nifong is not about to drop the case: “I have not backed off from my initial assessment of the case,” Nifong declared to the news media at a press conference on July 28. “Obviously, there were some things we hoped we would have as evidence that we ended up not having.”

Obviously Mr. Nifong was hoping that there was a gang rape instead of a false accusation, and the evidence he was hoping for had not materialized.

Mr. Michael was not being a Nifong apologist:

"That striking admission was the result of weeks, if not months, of highly critical scrutiny not only of two DNA tests that failed, despite Nifong’s promises, to show any known connection between the accuser and her three alleged assailants, but of hundreds of pages of discovery evidence turned over from Nifong to the defense, as required by state law, that documented a completely different picture of the case that the Durham D.A. initially painted.

"That discovery also called into question exactly how Durham police detectives conducted the investigation, whether their actions were legal, and if they were always being truthful with the public." If Mr. Michael was not deliberately preparing his readers for the news that the Duke Three were falsely accused and wrongly and wrongfully investigated, indicted and prosecuted, then he did a fantastic job of it accidentally!

Either way, hurray for Mr. Michael.

Mr. Michael did not say the prosecution was a persecution, but he demonstrated that it was:

"While the overt 1800 pages of discovery evidence released to the defense chronicles police actions internally through notes, memos and reports, press reports from when the case first hit the media on March 24 track what the public was being told.

"An analysis by The Carolinian and Wilmington Journal newspapers show that what the police were telling the public, either through direct statements or public documents, at times did not match what they actually knew, or didn’t know, behind the scenes."

Translation:  The prosecution was lying!

Examples:

"On March 24, the Durham Herald-Sun reported Durham Police spokesman Cpl. David Addison as saying investigators had '"really, really strong physical evidence" from the crime scene (610 N. Buchanan Blvd where the party was held and the bathroom the alleged victim said the rape and beaten took place in) that police will be able to compare with DNA results.'

"Forty-six of the 47-member lacrosse team had, under legal counsel and court order, had submitted to taking photographs and supplying DNA swabbings to authorities.

"But weeks later, those DNA test results from the state crime lab and a private lab in Burlington failed to yield the 'strong evidence' connection to the alleged victim both the police, and D.A. Nifong had promised the public they would.

"Cpl. Addison also told The Herald-Sun on March 24 that '…police approached the lacrosse team with the five-page search warrant on March 16 (two days after the alleged rape), but that all of the members refused to cooperate with the investigation.'

"In fact, three lacrosse players – the three team captains who lived at the address where the party was held, did speak with police when they came armed with a search warrant, and let them in.

"It was the rest of the team that, under attorneys’ advice, remained silent.

"It wouldn’t be until March 28, the day that the Duke lacrosse teams season was suspended, that the Durham Police Dept. would reverse itself…sort of.

"'According to [Durham PD spokesperson Kammie] Michael, police interviewed three men the same day authorities obtained a search warrant for 610 N. Buchanan Blvd,' the Durham Herald-sun reported on March 29.

“'Although Michael said she didn’t know the identity of the men, the application for the order to obtain DNA samples makes reference to the three residents of 610 N. Buchanan Blvd. The residents told police that every person who attended the party was a Duke lacrosse player. According to the three residents, all but five of the players tested for DNA were at the party,' the Herald-Sun reported then.

"Ms. Michael may not have known who the 'three men' were, but clearly investigators knew when they served the warrants at the address that they were talking with three Duke lacrosse team captains.

"Why police allowed the public perception to persist that none of the lacrosse players were cooperating, when in fact, three already had, is a question that has remained unanswered, and just one of the investigative conflicts that have called the state’s case into question."

Further, Mr. Michael called his readers' attention to what Mr. Nifong had done personally (and Mr. Nifong won't be thanking him for it!):

"On March 28, D.A. Nifong was in full swing in his public campaign to assure the Durham community not only that the case is open and shut, but in good hands. "His.

“'The thing that most of us found so abhorrent, and the reason I decided to take it over myself, was the combination gang-like rape activity accompanied by the racial slurs and general racial hostility,' Nifong told the NY Times in a telephone interview.

“'There are three people who went into the bathroom with the young lady, and whether the other people there knew what was going on at the time, they do now and have not come forward. I’m disappointed that no one has been enough of a man to come forward. And if they would have spoken up at the time, this may never have happened.'

"Nifong saved some of his fire for the local media too.

“'In this case, where you have the act of rape - - essentially a gang rape - - is bad enough in and of itself, but when it’s made with racial with racial epithets against the victim, I mean, it’s just absolutely unconscionable.'

"Nifong told WTVD-11 News on March 27. 'The contempt that was shown for the victim, based on her race was totally abhorrent. It adds another layer of reprehensibleness, to a crime that already reprehensible.'

"Nifong even promised to file hate crime charges against those involved, in addition to charging players for stonewalling.

“'My guess is that some of this stonewall of silence that we have seen may tend to crumble once charges start to come out,' Nifong said.

"Problem was, according to discovery evidence, the alleged victim had already given police several versions of what she says happened to her at that party, not only at the hands of some of the players, but even the second dancer, Kim Roberts Pittman."

Of course, there are those who try to explain that multiple contradictory statements should be expected of rape victims--"several rape trauma experts say multiple versions of the alleged crime is quite common because of either the brutality of the assault, or how the alleged victim is questioned." by Mr. Michael was not buying that as an excuse for Mr. Nifong's deceptiveness and patent racial pandering:

"Still, the certainty Nifong and the police were speaking with was not being undergirded by the 'strong evidence' they had hoped for. And Nifong’s racial pronouncements, based, in part, by what the accuser, Kim Roberts, and a next door neighbor alleged was said by some of the lacrosse players, seemed more like pandering to the passions of potential Black voters for a tight three-way May primary race, critics charge, than a sincere view of the case.

“'This is not a case of people drinking and it getting out of hand from that,' Nifong told a local television station on March 28. 'This is something much, much beyond that.'"

It was something alright: a chance for Mr. Nifong to win the Democrat primary by posing as the white knight of the black community.

Mr. Michael elaborated:

"Even an African-American jurist, Wake Superior Court Judge Abraham Penn Jones, who sometimes presides in Durham, recently told a local radio program that the length and breath of the Nifong’s initial statements, in addition to the 50-70 press interviews about the case he submitted to before the primary, was not, in Judge Jones’ proper."

Exactly!

Mr. Michael's excellent article further reviewed the history of the case, including the lacrosse team captains' statement expressing “sincere regret over the lapse in judgment in having the party on March 13, which has caused so much anguish for the Duke community and shame to our families and ourselves"; asserting "unequivocally that any allegation that a sexual assault or rape occurred is totally and transparently false "; and predicting that the DNA results would exonerate them.

Organizations like Friends of Duke University emphasize the great crime--the false accusation and politically-motivated persecution--instead of the great shame and stupidity--the "entertainment" choice for the party and the behavior by some that went way beyond rude.  Mr. Michael rightly reminded his readers that the team captains had much to apologize for and the party was shameful.

Mr. Michael:

"It is also on March 28 that Durham police released the now infamous tape of Kim Roberts, the second dancer at the party who as of this date, still had not been publicly identified, calling 911, telling the dispatcher that '…right outside of 610 Buchanan [Blvd]…I saw them all come out of, like, a big frat house, and me and my black girlfriend are walking by, and they called us 'niggers.'"

Despicable, if true.  (But Ms. Roberts does not appear to be an unimpeachable witness.)

Mr. Michael:

“'Police spokeswoman Kammie Michael did not answer questions about the time between the woman’s call and the call reporting the alleged rape, which came from a security guard at the Kroger on Hillsborough Road,' the Durham Herald-Sun reported on March 29.

“'Michael said the alleged rape victim was not the same woman who called about the racial slur. But Michael did not respond to a question asking whether the woman who called about the racial slur was the woman who accompanied the alleged rape victim to the party,' the paper reported.

"In fact, Durham police knew who the woman, Kim Roberts, was then because they had already interviewed her on March 20. That’s when Roberts not only denied any knowledge of a rape while she was at the party, but also called the alleged victim’s claim 'a crock.'"

The Durham police department appears in need of being policed.

Mr. Michael on the identification charade:

"Tough questions have been raised about the police photo ID lineup sessions from where the alleged victim reportedly picked the three suspects she says assaulted her. Only the pictures of lacrosse players were used, and a case investigator, not an impartial moderator as Durham police procedure mandates, was in charge."

Mr. Michael on whether there was a rape and the veracity of Detective Himan:

"As reported last week, in a probable cause affidavit dated March 27 from Det. Himan, he writes that the alleged victim, after being examined at the Duke Medical Center Emergency Room on the morning of March 14, exhibited clear evidence of being sexually assaulted.

“'Medical records and interviews that were obtained by a subpoena revealed the victim had signs, symptoms and injuries consistent with being raped and sexually assaulted vaginally and anally,' Himan wrote.

"According to the Durham Herald-Sun report on March 29, '…the Police Department’s application for the [search warrant], medical records gave credence to the victim’s allegations.'

"But after D.A. Mike Nifong turned over several hundred pages of discovery evidence to defense attorneys on May 18 as required by law, they immediately determined in a June 15 motion that Himan did not obtain 'medical records and interviews' until April 5, and no medical personnel were legally allowed to release details to him prior because of the federal Heath Insurance Portability and Accountability Act.

"Defense attorneys say the discovery documents show Nifong didn’t issue a subpoena for the material records until March 20; it wasn’t served until March 21; they weren’t printed, dated and stamped for compliance until March 30; and Det. Himan didn’t pick them up from the hospital until April 5.

"Defense attorneys add that contrary to Himan’s March 27 affidavit, none of the medical records obtained confirm the alleged victim’s condition as the investigator described.

"Neither the Durham Police Dept. nor D.A. Nifong has explained the defense’s allegation against Det. Himan, who, after four years on the force, became an investigator last January."

Mr. Michael may still hope it isn't as bad as the defense realizes it is:

"Critics have made it clear that D.A. Nifong was only posturing for the Black vote he needed desperately to win the May Democratic primary, which he did. But if Nifong was exploiting the Duke alleged rape case for solely political means, then why would the Durham PD, with the apparent blessing of City Manager Patrick Baker and Mayor Bill Bell, help him, knowing that ultimately, it would catch up to them?

"The improbability of that question is what those who still believe that a crime was committed, and that there’s more evidence than has been revealed, hold on to. But incredulous actions by the prosecutor have shaken confidence.

"The day after the first set of DNA test results failed to back him up, D.A. Nifong made a special trip to North Carolina Central University, the alleged victim’s school, to assure the African-American community that 'this case is not over.'

"Students afterward told The Wilmington Journal that they felt he wasn’t taking the case seriously, and didn’t trust the district attorney.

"The three indictments he secured shortly after, allayed some of that anxiety, but new questions and doubts about the case, the evidence, and even the alleged victim herself in the minds of some, have many wondering if what Police Chief Chalmers and D.A. Nifong have assured really is true.

"That they can prove a rape occurred, and that the three indicted suspects are responsible.

"The last of three case management administrative hearings is scheduled for the week of August 21. After that, defense motions are expected to come flying high and heavy to challenge Nifong’s evidence, have a speedy trial, or maybe even dismiss the charges all together." It will be a September to remember for Mr. Nifong, but you probably know more about that than your writing, Mr. Michael.

And, Mr. Michael, you've done a fabulous job of softening the blow when the case collapses: "Indeed, if the district attorney has no better than what has been so far shown, a trial in this case may never be, and the African-American community will want to know why."

The answer: there was no kidnapping, or rape, or sexual offense, but there was a false accusation and an opportunistic prosecutor fighting for his job.

Michael J. Gaynor

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.