Topic category:  Other/General

Cash Michaels' latest article--"Duke Case: Is Change of Venue Possible?"--asked an important strategic question: " Will the defense in the Duke lacrosse alleged rape case ask for a change in trial venue, citing that a good portion of the prospective jury pool in Durham County has been 'poisoned'  against their clients?"

The answer SHOULD be:  the defense will not need to move for a change of venue, if the evidence of "poisoning" indicates such a motion is appropriate, because there is not enough evidence of guilt of any of the Duke Three  to warrant a jury trial anywhere.

Mr. Michaels let his readers know that Professor Robert K.C. Johnson and I had lauded the defense for conducting a random survey of a small number of potential jurors in order to ascertain whether or not to request a change of venue (a request not to made lightly, because it may offend some of the people in the place where it is claimed that a fair trial is not available):

"'The defense in the Duke case is checking the attitudes of potential jurors,' New York attorney and online columnist Michael Gaynor writes. 'This is a GOOD thing, especially given all that Mr. Nifong did to poison the jury pool against the whole 2006 Duke Men's Lacrosse Team when he was simultaneously serving as prosecutor and running in the Democrat primary to keep his job last spring.'

"Gaynor and other Nifong critics alleged that the D.A. exploited the Duke alleged rape case, with little or no evidence, to gain favor with Black voters to win that primary.

"Another noted Duke case pundit, Brooklyn College History Professor Robert "KC" Johnson of the blogsite, "Durham-in-Wonderland," wrote, '¦this effort had particular justification, as defense attorneys noted in a response motion, due to the danger that an impartial jury could have been substantially threatened by extensive prejudicial public comments made by the Durham County District Attorney."

A defense lawyer is obligated to do anything reasonably possible to ensure that his or her client(s) receive(s) a fair trial.  Since Mr. Nifong in widely publicized statements purported to confirm the predicate for a rape trial--the occurrence of a rape--and he was not a witness to either the alleged rape or any admission by any of the Duke Three, the defense lawyers would be derelict in their duty to their clients if they did not investigate whether the people of Durham County give any credence to what Mr. Nifong says.

Ordinarily, there is not a great deal of difficulty in finding jurors who are ready, willing and able to listen to the evidence and to decide the case based on the evidence and the court's instructions.

The Duke case is hardly an ordinary case, however.  It involves sex, race, class and some bad blood between Duke University and Durham, North Carolina.

Complainant Crystal Gail Mangum's gang rape charge is so sensational that it captured and kept America's attention. Ms. Mangum is a young Durham woman who is black, a single mother of two, a student at North Carolina Central University, an ex-convict and a stripper now claiming that she was raped by three members (down from twenty and five) of the 2006 Duke Men's Lacrosse Team in a bathroom (the prosecution won't say which one) at a house at which a lacrosse team party was held last March over thirty minutes (although Mr. Nifong says not more than ten minutes).  She previously claimed that she was raped by three young black males, but nothing came of that claim, and charged her ex-husband (not the father of her children) with trying to kill her, but then she did not appear to testify and so that charge was dismissed.

The defendants (the Duke Three) are young, white Duke lacrosse players from wealthy Northern families.  None of them has a history of sexual misconduct, each of them has passed a polygraph test with respect to the charges against him and there is no DNA evidence to substantiate the rape claim. 

A reader might wonder why there is a case.

Ms. Mangum cried rape when she was about to be incarcerated for her own protection.  One would expect that the Durham police would have investigated both her claim and her and determined that there was not sufficient evidence to proceed against anyone, except her, for making a false report.

But, that cry of gang rape was made by a black against white Duke lacrosse players less than two months before the Democrat primary for Durham County District Attorney and the white man (Michael B. Nifong) who had been appointed to that position by North Carolina Governor Michael Easley a few months earlier was running behind a white woman (Freda Black) who he had fired when he took office in a three-way race with a black man as the third candidate and unless he somehow transformed himself into a hero to a substantial segment of Durham County's black votes, he soon would no longer be employed by the Durham County District Attorney's office and people looking for a criminal lawyer on good terms with the District Attorney would not be looking to hire him. 

Mr. Nifong treated the unconfirmed and highly suspicious claim as valid, publicly stating that he believed there had been a rape (hoping, vainly, that DNA tests actually would validate his personal validation) and pressuring the lacrosse players to come forward to make his case for him (something they could not do in good conscience).

Mr. Nifong refused to consider evidence of innocence and proceeding to obtain indictments, first of two sophomores (Reade Seligmann and Collin Finnerty) and then of David Evans, who was fortunate enough to graduate before being indicted.

Under North Carolina law, the prosecution is required to turn over evidence to the defense.

Some in the media have acquired access to the material produced by the prosecution during the discovery process in the Duke case, including Jeff Neff of The News & Observer, a North Carolina newspaper.

Bottom line: The Duke Three never should have been indicted and their indictments should be dismissed as improvidently granted.

Of course, Mr. Nifong wants to proceed to trial, but next year, long after Election Day 2006.

The defense has proceeded expeditiously and the prosecution has delayed.

"60 Minutes" took a special interest in the case and Judge Kenneth Titus then did Mr. Nifong the great favor of issuing a gag order to inhibit potential witnesses (including even the Duke Three) from communicating with the media about the case.

That gag order was an abomination.  It also was constitutionally overbroad.  The defense moved for modification four days later, but the motion remained pending until September 22, when Judge Osmond Smith (to whom the case had been assigned for all purposes) held his first conference in the case and freed potential witnesses to speak to the media.  Great news for "60 Minutes" and constitutionalists, among others.  Bad news for Mr. Nifong and his allies.

"60 Minutes" had tentatively planned to include the Duke case in its season opener on September 24, but has tentatively rescheduled for October 15.

WORSE news for Mr. Nifong and his allies.

Mr. Nifong's "us against them" strategy will not survive a strong dose of the truth, but it is all Mr. Nifong has and so he is complaining about a random telephone survey of potential jurors by a New York company that somehow included his wife.

Of course, if the jury pool has been poisoned, it behooves the defense to move for a change of venue and Judge Smith will so order it.

But, as Mr. Michaels noted, if the Duke case is tried outside Durham, "most legal observers say the number of prospective African-American jurors could be negatively impacted."

Unfortunately, Mr. Nifong can misuse that for his own political purposes: manipulating Durham County's black voters susceptible to his manipulation.

Mr. Michaels reported that defense lawyer Brad Bannon confirmed that "the survey results could help determine whether there is a good faith basis to believe the [Durham County] jury pool is tainted... based on the numerous media interviews Durham District Attorney Mike Nifong reportedly granted shortly after the case grabbed national and international headlines last spring."

So Mr. Nifong created the problem, and now wants to use it to pose as the champion of Durham County insisting on "a Durham solution" in the Duke case.

Mr. Michaels: "[C]ritics of the defense maintain that the people of Durham, not folks in one of North Carolina's 99 other counties, have the right to determine the guilt or innocence of the three defendants, and that they can get a fair trial there."

There is a fundamental problem with that position: THE DUKE CASE IS NOT FIT FOR A JURY ANYWHERE!  It is a case that should be dismissed by the court instead of submitted to a jury.

Mr. Michaels: "Nifong told the court that he believes he can prove his theory to a jury at trial, and that the accuser will be testifying.

"The question is will he have any solid, unimpeachable evidence beyond her testimony, to back her up with; or will D.A. Nifong call her to the stand, only to have her torn apart on cross-examination by a trio of very aggressive defense attorneys?"

In view of her monumental credibility problems (her credibility is abysmal both on the facts of the night in question and on the arc of her life's history), Ms. Mangum's "naked" claim, without physical evidence or a credible supporting witness to back it up (not even a successful polygraph test), simply is not trial-worthy.

Case dismissed (the sooner, the better)!

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.