Topic category:  Other/General

On August 16, in "The '60 Minutes' season opener should close the Duke case," I announced that CBS's "60 Minutes" tentatively planned to open its thirty-ninth season on September 24 with "a blockbuster expose on the Duke case" reported by Ed Bradley and concluded: "It finally will be obvious to all but the oblivious that there was no kidnapping, or rape, or sexual offense, but there was a false accusation and an opportunistic prosecutor fighting for his job."

The expose was delayed and divided into two parts.  Part 1 was broadcast on October 15.  What I predicted would be obvious already is obvious, even without Part II. 

Back on April 20, in "Duke rape accuser: victim or victimizer?," I asked that question, a question that Durham County, North Carolina District Attorney Michael B. Nifong dared not ask himself and try to answer honestly.

My position:

"To date, DNA testing has not tied any of the black player's white teammates to the alleged rape.

"Unfortunately, the mainstream media has been treating the dancer as a victim.

"But, it is far from clear that she IS a victim.

"She IS an accuser.

"She MAY be a victimizer. And the players whom she has accused may be victims. Victims of a false accusation AND their own foolishness in attending a party at which such a dancer provides 'entertainment.'

"BUT, just as being an exotic dancer is not a waiver of the dancer's right not to be raped, a player does not waive his right not to be falsely accused by indulging in such 'entertainment.'

"Regardless of the sad state of town-gown relations between Durham, North Carolina and Duke University, both the dancer and the lacrosse players are entitled to be treated fairly."

The lacrosse players were not treated fairly.  The Duke Three (Collin Finnerty, Reade Seligmann and David Evans) were wrongly and wrongfully indicted on heinous charges on which conviction could bring thirty years in prison.  Fortunately, their families were in a position to make sure they would not be falsely convicted.

In Part I, "60 Minutes" exposed the accuser, Crystal Gail Mangum, as a false accuser and Mr. Nifong as a shameless political opportunist who caused the Duke Three to be indicted even after DNA evidence failed to implicate them, because he had decided to pander to Durham County's black Democrat voters in order to win an upcoming primary that otherwise he would have lost.

Last May, Stuart Taylor Jr., America's top legal commentator, wrote that "the available evidence le[ft] [him] about 85 percent confident that the three members [of the 2006 Duke Men's Lacrosse Team] who have been indicted on rape charges are innocent and that the accusation is a lie."

Today, Mr. Taylor's belief approaches metaphysical certitude, if it does not reach it.

Mr. Taylor perceived that Mr. Nifong should be prosecuted:

"Then there is Mike Nifong, the Durham, N.C., district attorney who is prosecuting the case. In addition to the misconduct detailed in my April 29 column, he has shielded his evidence (if any) from public scrutiny while seeking to keep the rape charges hanging over the defendants by delaying any trial until next spring.

"Nifong and a certain Durham police officer should themselves be under criminal investigation, in my view, for what looks like possible intimidation of a disinterested defense witness, a cabbie who had been transporting one defendant at the time of the alleged rape."

The harassed cabbie subsequently was acquitted by a Durham jury.

Mr. Taylor was right about Mr. Nifong.

Mr. Taylor is white and his readership is a small fraction of the viewership of "60 Minutes," however. 

It's better for an erudite black man like Mr. Bradley to report to the world (three weeks and two days before Election Day 2006) that (1) it appeared that "standard police procedures were violated" and (2) Mr. Nifong had "played up racial aspects" of the Duke case.

It's delightful that "60 Minutes" has (1) been on the case for six months and  (2) examined nearly everything the prosecution has produced in discovery.

It is devastating for Mr. Nifong that the "60 Minutes" investigation showed that the Duke Three were the innocent victims and Mr. Nifong is an out-of-control scoundrel.

Mr. Bradley doing the reporting is very likely to have the very desirable effect of assuring the voters of Durham County, North Carolina that they should mitigate the horrendous damage done by Mr. Nifong by refusing to elect Mr. Nifong, even though Mr. Bradley's home base is not Durham.

Fortunately (for those who trust fellow locals), Duke Law Professor James Coleman (who also is black) was interviewed by Mr. Bradley and he did not flinch from criticizing Mr. Nifong.  Professor Coleman said, among other things, that the Duke Three did not have a history of violent or racist behavior (which probably came as news to many), (2) Mr. Nifong pandered to Durham County blacks (he should know) and (3) Mr. Nifong committed prosecutorial misconduct so serious as to permit a conviction to be vacated, including violating local, state and federal guidlines (he's right about that too).

Mr. Bradley also interviewed Kim Roberts, whom he graciously referred to as an "exotic dancer."  Ms. Roberts, who is black, not only convincingly disputed critical parts of the false accuser's gang rape story, but appropriately acknowledged that none of the Duke Three had used racial epithets.  (Ms. Roberts had told one of the lacrosse players, in short, that he was a white guy who had to pay for sex and his retort had included the use of the N word to describe her, instead of "black woman.")

During a news conference last summer, Mr. Nifong (1)conceded that his "handling of the media coverage of [the Duke] case has occasioned substantial criticism, some of which is undoubtedly justified"; (2) claimed that he "both underestimated the level of media attention this case would draw and misjudged the effect that my words would have"; and (3) declared, "That having been said, this case remains a Durham problem and it demands a Durham solution."

The case still remains a Durham problem, unfortunately.  But, Mr. Nifong is right that the case demands "a Durham solution." 

The appropriate solution is for the Duke Three to be exonerated and their persecutors (Mr. Nifong and Ms. Mangum) prosecuted.  The indictments of the Duke Three should be dismissed, upon the motion of the person who replaces Mr. Nifong. Continuation of the case would be continued prosecutorial abuse.  Under the circumstances, a trial would be cruel and unusual punishment instead of the right mechanism for determining guilt or innocence.

"60 Minutes" made the appropriateness of replacing Mr. Nifong very clear to everyone, especially the people responsible for electing Durham County's district attorney on November 7.

Bravo!

The best solution would be for (1) Judge Smith (who properly lifted an outrageous gag order on potential witnesses, including the Duke Three, on September 22 and thereby made it much easier for "60 Minutes" to show that the Duke case is bogus and Mr. Nifong is a bad man and a bully), to grant the motion made long ago by Reade Seligmann's attorney (Kirk Osborn) to remove Mr. Nifong from the case and (2) the Durham County voters to elect the viable Anybody But Nifong candidate, Lewis Cheek, a Democrat and a Durham County Commissioner, and thereby give North Carolina Governor Michael Easley a second chance to appoint a decent district attorney.

Facts now known establish that the indictments were improperly sought and improvidently issued and should be dismissed as quickly as possible.

The interim "Durham solution" of "60 Minutes"--having Mr. Bradley interview Durham's Professor Coleman and Ms. Roberts and showing video of the false accuser doing exotic dancing two weeks after claiming rape--makes it much easier for (1) Judge Smith to dismiss the indictments without offending Durhamites  and (2) Durham voters to appreciate that none of the Duke Three is a monster, each of them is a victim and Mr. Nifong is a menace.

Each of the Duke Three was interviewed by Mr. Bradley.  Happily, the fear that only David Evans could speak effectively in their defense was shown to be baseless.

As expected. Mr. Evans impressed.  He explained how he had cooperated with the police investigation, offered to be polygraphed, and put his faith in the legal system. 

But Reade Seligmann and Collin Finnerty were equally impressive.

Mr. Seligmann, a sophomore at the time of the infamous party, calmly explained that he had never been interviewed by either the police or the prosecution.  His detailed alibi was explored.  It  was apparent that he had been persecuted, not prosecuted, by a prosecutor who did not want to know pertinent facts that disproved the false accuser's claim.

Likewise, Mr. Finnerty, also a sophomore at the time, dispelled suspicion that he is a racist or a rapist.  He calmly explained that he had not been nervous to give a DNA sample, but that his indictment had been devastating.

The Duke Three have coped with outrageous prosecutorial abuse and responded superbly.  Instead of playing into Mr Nifong's hands by refusing to speak on advice of counsel, they submitted themselves to their fellow Americans generally and the Durham County voters particularly and showed that they are not the kind of persons the false accuser, Mr. Nifong and their dwindling band of supporters have claimed that they are.  

Just what Mr. Nifong did not want them to do, especially before Election Day!

It's almost time for the voters of Durham County, North Carolina to act (and it's past time for Duke University to admit it made huge mistakes in suspending Messrs. Seligmann and Finnerty and to reinstate them).

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.