Topic category:  Other/General

Durham County, North Carolina District Attorney Michael B. Nifong crossed a Rubicon when he chose to behave like a petty tyrant in the Duke case instead of to function as a fair and objective "minister of justice," which he was appointed to be by the Governor of North Carolina (can't blame the voters for Mr. Nifong).  Mr. Nifong (1) recklessly treated as true an utterly improbable and totally unconfirmed claim by an unreliable person that dovetailed nicely with his immediate personal and political needs, (2) reprehensibly refused to consider exonerating evidence or to conduct polygraph tests (even of volunteers) and (3) instead publicly proclaimed that there had been a rape when the evidence did not substantiate the claim and proceeded to obtain unwarranted indictments against, and to persecute, the Duke Three on heinous criminal charges.  It was a shameless, selfish, but successful, short-term strategy to snatch victory from the jaws of the defeat in the then soon upcoming Democrat district attorney primary.

Durham County's problem: Mr. Nifong.

Mr. Nifong's problem: The Ides of October (and the "60 Minutes" expose precede Election Day 2006 and, as Abraham Lincoln explained: "If you once forfeit the confidence of your fellow citizens, you can never regain their respect and esteem.   It is true that you may fool all the people some of the time; you can even fool some of the people all of the time; but you can't fool all of the people all the time." 

There still will be some who will support Mr. Nifong regardless of what the facts are (some still deny Alger Hiss was a Communist), but the vast majority of the people (including the people of Durham County) care about the truth and resent being deceived.  That general election on November 7 will afford Durhamites the opportunity to tell the rest of America what kind of people they are: NOT the kind for a political hack to deceive.

On October 1, The News & Observer published a lengthy article by Ben Niolet titled “At Center of Duke lacrosse case, a stormy DA who likes to fight.” 

Liestoppers immediately focused on what IS telling in the article:

"Most notably, Mr. Niolet confirms that [Mr. Nifong] has never spoken directly to the accuser about what she alleges transpired that evening.

“'He was so confident in the accuser's story and his case that he refused to meet with lawyers who said they could prove players' innocence....Although Nifong has never heard the woman tell her story, he believes her.'

"As incredible as this may seem, we now have confirmation the Mr. Nifong’s theories, which have ranged from long sleeves to condoms to date rape drugs to a five minute attack, have not come from the words or statements of the accuser but rather from the menace himself."

Is THAT the kind of person whom a thinking person wants as a district attorney?

For Julius Caesar, the tyrant who made "crossing the Rubicon" a memorable phrase), an Ides of March proved fatal.  For Mr. Nifong, the Ides of this October (October 15) should be politically fatal (thanks to "60 Minutes" and CBS News, of which Duke graduate Sean McManus is president). 

Wikipedia: "The phrase 'crossing the Rubicon'... refer[s] to any people committing themselves irrevocably to a risky and revolutionary course of action – similar to the current phrase 'passing the point of no return.' It also refers, in limited usage, to its plainer meaning of using military power in a non-receptive homeland."

The Rubicon is a small river in northern Italy.  It marked the boundary between the Roman province of Cisalphine (to the north) and Italy proper (to the south). Roman law prohibited any general from crossing it with a standing army, in order to protect the Roman republic from internal military threat.

On January 10, 49 BC, Julius Caesar crossed the Rubicon with his army, breaking the law and rendering armed conflict inevitable.  According to Suetonius, Caesar declared (in Latin, of course), "the die is cast."  A bit more than five years later, on March 15, 44 BC (the Ides of March), Caesar was assassinated on the floor of the Roman Senate.

Mr. Nifong embarked upon a risky and contemptible course of action.  He cast the die, going with a lie.  The three chosen to be framed refused to be wrongly blamed.  They happened to be supported by people with the ways and means to uncover the truth and to expose the lie.  Inevitably, the truth would become known.  When, was a matter of time.  What needed to be done was done before general election time.  Great!  For Mr. Nifong to win the general election would be a crime.

As an independent commentator who immediately suspected that Crystal Gail Mangum's gang rape claim was false (how often does lightning strike multiple times in the same place in thirty minutes, much less five to ten?), I initially wrote in April to dispute the labeling of Ms. Mangum as a victim instead of an accuser and a dancer instead of a stripper and in May to celebrate Stuart Taylor, Jr., America's top legal commentator, covering the case and concluding (yes, tentatively) that "the available evidence le[ft] [him] about 85 percent confident that the three members who have been indicted on rape charges are innocent and that the accusation is a lie." That sentence led me to believe that it was only a matter of time before what was first called the Duke rape case was generally recognized as the Duke rape hoax.  If I had needed confirmation that I was on the right side, that would have been it.

Thereafter, I was pleased to opine about what was reported about Ms. Mangum, Mr. Nifong and the members of the Duke lacrosse team (especially the Duke Three). 

Ms. Mangum turned out to be an ex-convict with credibility problems that would be insurmountable in the absence of DNA evidence and a credible confirming witness. 

Mr. Nifong turned out to be a pathetic out-of-control prosecutor meriting removal from office instead of protection from the other powers that be in North Carolina (particularly Durham County, North Carolina). 

Kim Roberts, the second stripper, who might have been a credible confirming witness, initially pronounced the rape claim "a crock" (and thereby made herself a useless prosecution witness) and turned out to be an ex-convict parole violator who looked on the Duke case as an opportunity for personal financial gain and seemingly got some unseemly favorable treatment from Mr. Nifong in her own criminal proceeding after she made some comments that would be of some help to the prosecution if made by a credible person.

The 2006 Duke Men's Lacrosse Team did show poor judgment in suitable "entertainment" (if the women's team hired a male stripper, it did not excuse the men's team, or some team members,  hiring Ms. Mangum and Ms. Roberts to strip for the team); some members of the team might have been guilty of underage drinking and/or excess noise; and the team's coach (Mike Presser) deserved much better from his team, even off-campus.

BUT, the kidnapping, rape and sexual offense felony charges against the Duke Three are utter travesties of justice and the Duke Three and their teammates are to be commended for not succumbing to prosecutorial pressure and pretending that those charges are NOT utter travesties of justice.

Unfortunately, (1) the mainstream media generally got it wrong from the start and owning up to their mistakes is not the mainstream media's strong suit; (2)Mr. Nifong wanted to pose as the champion of a black woman claiming to have been raped by young white men (it averted her own incarceration) and to exploit both racial tensions and the town-gown friction between Duke and Durham) for political purposes; (3) Durham is not very competitively politically; and (4) the defense, planning for the worst (a trial instead of dismissal of the indictments as improvidently granted by the court), shunned virtually all of the media, sharing Mr. Nifong's discovery with a very select few, instead of making it generally available and putting an end to the suspicion that Mr. Nifong read how solid evidence or guilt and the defense was cherry picking.

Now MSNBC General Manager Dan Abrams publicly acknowledged that he had seen Mr. Nifong's discovery and there was no "there" there. There are people (including me) who are confident that Mr. Abrams would not have said so if he was not sure it was true, but there are also many people who are inclined to believe that (1)  prosecutors are honorable, if imperfect, and (2) indictments are not issued without solid evidence of guilt and they understandably want more Mr. Abrams' assurance.

Fortunately, Jeff Neff of The News & Observer (a North Carolina newspaper) eventually got access to Mr. Nifong's discovery and did a lengthy expose (marred by a misread date) that shook blind faith in Mr. Nifong in Durham County, North Carolina, where (1) the Duke case is pending and will be tried, IF it is tried instead of dismissed and there is no change of venue in the interest of a fair trial, and (2) Mr. Nifong is running for election against fellow Democrat Lewis Cheek (who got on the ballot via petition and then opted not to campaign or to serve if elected, but is the viable Anybody But Nifong candidate) and Steve Monk, a Republican who failed to collect enough signatures to have his name on the ballot but is a wrong-headed write-in candidate whose antics will split the anti-Nifong vote to some degree, stupidly.

In the course of the case, to the consternation of some, in addition to commentating, I have posted three news items with respect to the Duke:

(1) On August 3, I posted "There IS a gag order in the Duke case!." Because the mainstream media had NOT announced that Judge Kenneth Titus had gagged potential witnesses (including the Duke Three) on July 17,  the defense had moved to modify four days later, but the mainstream media still did not report that an outrageous, unconstitutional gag order had been put in place and the defense was not publicizing it either.

(2) On August 16, I posted "The '60 Minutes" season opener should close the Duke case, announcing that "[t]he current plan is for ["60 Minutes"'s] thirty-ninth season to begin with a blockbuster expose on the Duke case" and including this message to Mr. Nifong: "Mr. Bradley, '60 Minutes''s Ed, will leave you politically dead. You'll wish you had refused to play the race card and acted professionally instead of politically and objectively instead of objectionably." Because that gag order was still in place, its issuance necessarily impacted what "60 Minutes" could do and I wanted concerned citizens to contact "60 Minutes," encourage it to go ahead with the planned Duke case story and explain why they had concluded that the Duke case was a deplorable political persecution and the chief persecutor had to be exposed.

(3) On September 22, I posted this: "JUDGE OSMOND SMITH MODIFIED JUDGE KENNETH TITUS'S GAG ORDER, UNGAGGING POTENTIAL WITNESSES (INCLUDING THE DUKE THREE) TO SPEAK TO THE MEDIA ABOUT THE DUKE CASE. Cause for celebration for the Duke case defense, '60 Minutes,' the people of Durham County, North Carolina and free speech supporters. Calamity for Mr. Nifong and his dwindling supporters."

Naturally, "60 Minutes" postponed its Duke story, causing concern among doubters.

But Michael McCusker (www.crystalmess.com), in "Ed Bradley's Cue Card's (Redux"), posted on September 30, provided reassurance as well as explanation of what is in process and why:

"1) On Friday, September, 22d, Judge Smith did one thing right: he lifted former presiding 'Justice' Titus' unconstitutional gag order from the necks of potential witnesses, including the defendants;

"2) 60 Minutes wisely elected not to air its highly-anticipated Durham Prosecutorial, Police, Politics & Media Scandal segment on Sunday, the 24th, as originally planned. Upon Smith's fiat, they might now actually interview (Crystal? The Duke Three? Levicy? Jarriel Johnson? Brian Taylor? Tammy Rose? Kimmy? Himan? Wilson? Party attendees?), or try to interview ('Sergeant Gottlieb? Sergeant GOTT-lieb?' Vrooooooom!), people that they'd been judicially yoked from speaking to previously. They're doing so, now, and the meaner, harder hammer is tentatively scheduled to air on October 15th.

Message to Ms. Mangum:

For your sake and the sakes of your children, tell the truth NOW.  Don't expect Mr. Nifong to be able to keep the charade going into 2007.  Don't expect to be able to put an end to it all just by deciding not to testify.  Americans can be very forgiving, but most Americans think repentance is supposed to precede forgiveness.  Yes, it's hard to turn state's evidence when the prosecutor is the bad guy, but if you are ready to tell the whole truth in the courtroom of public opinion, Ed Bradley will listen. It sure beats being cross-examined at trial by a lawyer for each of the Duke Three 

In lifting the gag order, Judge Smith signaled that he intends to be fair to BOTH sides.  That's fine for the defense, but catastrophic for you and Mr. Nifong.

Please take the lifting of the gag order as an invitation to speak the truth, the whole truth and nothing but the truth.

That gag order was one more impediment to you straightening things out.

Going to down with Mr. Nifong is NOT necessary or desirable.

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.