Topic category:  Other/General

As the December 15 court conference in the Duke case approaches and the realization that a fair trial in Durham, North Carolina is too much to expect grows, pro-Duke Three attention is focusing on changing the venue of a trial or, better, avoiding a trial by suppressing so much evidence that not even Durham County District Attorney Michael B. Nifong would proceed or winning dismissal.

I vote for winning dismissal. 

Since the North Carolina NAACP appointed North Carolina Central University Professor Irving Joyner to monitor the case and he declared that Mr. Nifong might win a conviction in Durham, I have believed that trials of the Duke case would be ugly and result in hung juries, even though the pertinent facts, figuratively speaking, would scream for acquittal.  The local Black community's emotional investment in the case is enormous (check the Black vote in the district attorney election last month and compare to the Black vote in the Democrat primary last month and factor in Freda Black's endorsement of Lewis Cheek).  A prospective juror with a bias determined to be on the jury may feign fairness, and if the defense challenges a prospective Black juror, the suspicion of racism will contaminate, unless that juror is so unqualified that Professor Joyner publicly says so.

Believing that trial would end with a hung jury, I urged the Duke Three to take polygraph tests, even though Mr. Nifong did not want them to do so, and to demonstrate to America that they are the innocent victims (innocent on the felony charges pending against them, at least), not rapist/kidnapper/sexual assaulter villains, in the case. 

I was disgusted when Judge Kenneth Titus issued an unconstitutional gag order to silence the Duke Three and delighted when Judge Osmond Smith vacated it and facilitated the "60 Minutes" expose that convinced so many (but not enough in Durham County, North Carolina to keep Mr. Nifong from winning a plurality of the votes in the general election last month). 

Initially, the mainstream media vilified the Duke Three.  I wanted the mainstream media to be proved wrong and the Duke Three making it easier for the court to dismiss the case against them by appearing and winning in the courtroom of public opinion instead of waiting in silence for trial.

I favored a highly unusual strategy for a highly unusual case.  But the defense had what it needed to pull it off: innocent, intelligent defendants; able, experienced lawyers; ample means; and supporters determined that the defendants not be railroaded.

"ralph," a new poster at the Liestoppers message board, recently posted a message simultaneously criticizing Kirk Osborn, a Reade Seligmann attorney, for doing too little, and me, an independent commentator who had realized early that the Duke case was Tawana Brawley II and Mr. Nifong should not be practicing law,  for criticizing some aspects of Duke case defense strategy.

"ralph": "[T]the defense hasn't really filed a serious motion to suppress yet. The Osborn motion cited in this thread doesn't cite any case remotely on point and simple lays out a rudimentary argument. Remember, it was filed before the defense had any discovery. All they had was the transcript. The motion doesn't consider the impact of the AV's statements or the two prior lineups on the 16th and 21st. It doesn't cite any relevant North Carolina cases. We are still waiting for the defense to put this issue in play. Before the Gaynors of the world suggest they would be better defense counsel and would move to suppress (Gaynor doesn't even think that's necessary, he's just goes right to dismissal), its important to remember the standard that going to be used.

The truth is that I have lauded Duke case defense counsel for what I believe they did well and criticized them for what I believe were mistakes. 

There was no danger that I would suggest that I would be better defense counsel (and not only because I am a lifelong New Yorker not authorized to practice law in North Carolina).  Replacing defense counsel was not a goal; seeing the Duke Three exonerated was.

I read the North Carolina statutes and cases and determined that the defense was entitled to move to dismiss before trial.  Why so-called experts said, it was not possible, or smart, to do so, I don't know.

There IS a North Carolina statute that explicitly provides for pre-trial motions to dismiss indictments:

"§ 15A 954. Motion to dismiss — Grounds applicable to all criminal pleadings; dismissal of proceedings upon death of defendant.

(a) The court on motion of the defendant must dismiss the charges stated in a criminal pleading if it determines that:

(1) The statute alleged to have been violated is unconstitutional on its face or as applied to the defendant.

(2) The statute of limitations has run.

(3) The defendant has been denied a speedy trial as required by the Constitution of the United States and the Constitution of North Carolina.

(4) The defendant's constitutional rights have been flagrantly violated and there is such irreparable prejudice to the defendant's preparation of his case that there is no remedy but to dismiss the prosecution.

(5) The defendant has previously been placed in jeopardy of the same offense.

(6) The defendant has previously been charged with the same offense in another North Carolina court of competent jurisdiction, and the criminal pleading charging the offense is still pending and valid.

(7) An issue of fact or law essential to a successful prosecution has been previously adjudicated in favor of the defendant in a prior action between the parties.

(8) The court has no jurisdiction of the offense charged.

(9) The defendant has been granted immunity by law from prosecution.

(10) The pleading fails to charge an offense as provided in G.S. 15A 924(e).

(b) Upon suggestion to the court that the defendant has died, the court upon determining that the defendant is dead must dismiss the charges.

(c) A motion to dismiss for the reasons set out in subsection (a) may be made at any time. (1973, c. 1286, s. 1.)"

North Carolina General Statutes 15A-954(a)(4) mandates that, on motion, the court "must dismiss the charges stated in a criminal pleading if it determines that...[t]he defendant's constitutional rights have been flagrantly violated and there is such irreparable prejudice to the defendant's preparation of his case that there is no remedy but to dismiss the prosecution,." and North Carolina General Statutes 15A-954(c) permits such a motion "at any time."

Who doubts that the Duke case defense team can show that the Duke Three's constitutional rights to due process and equal protection have been flagrantly violated, to their irreparable prejudice?

NOT I!

'"ralph" should read North Carolina v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971), a noteworthy opinion in which North Carolina's highest court dismissed a DUI charge because "the constable blundered."

The opinions in the case make it quite clear that the defendant actually was intoxicated. As a dissenting judge put it: "Upon the facts in this record his guilt is so obvious that reasonable men, women or children could not arrive at a different conclusion."

BUT, as that same dissenting judge declared, "defendant's constitutional right to counsel was violated by an arrogant, overbearing jailer whose discharge might well serve the orderly administration of justice."

SO, the majority ruled that the defendant's prosecution had to be dismissed, because the majority (unlike the two dissenting judges) could not say that there was not "irreparable prejudice": "Before we could say that defendant was not prejudiced by the refusal of the jailer to permit his attorney to see him we would have to assume both the infallibility and credibility of the State's witnesses as well as the certitude of their tests. Even if the assumption be true in this case, it will not always be so. However, the rule we now formulate will be uniformly applicable hereafter. It may well be that here 'the criminal is to go free because the constable blundered'....Notwithstanding, when an officer's blunder deprives a defendant of his only opportunity to obtain evidence which might prove his innocence, the State will not be heard to say that such evidence does not exist....Defendant has been deprived of a fundamental right which the constitution guarantees to every person charged with crime. For that reason the prosecution against him must be dismissed."

North Carolina's highest court declared that "the rule we now formulate will be uniformly applicable hereafter."

That means Judge Smith (and every other North Carolina trial judge) is obligated to follow the rule in the Duke case (and any other case before him).

Of course, Judge Smith (and every other North Carolina trial judge) is obligated to follow the Fourteenth Amendment, which guarantees due process and equal protection.

I believe that the Duke case defense attorneys are capable of convincing the court to dismiss under North Carolina General Statutes 15A-954(a)(4).

Neil v. Biggers, 409 U.S. 1888, a rape case decided by the United States Supreme Court in 1972 (the year I graduated from law school), supports dismissal in the Duke case, even though dismissal was not ordered in that case.  (Powell, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Rehnquist, JJ., joined.  Brennan, J., filed an opinion concurring in part and dissenting in part, in which Douglas and Stewart, JJ., joined, post, p. 201.  Marshall, J., took no part in the consideration or decision of the case.)

The majority opinion stated in pertinent part:

"We proceed...to consider respondent's due process claim. As the claim turns upon the facts, we must first review the relevant testimony at the jury trial and at the habeas corpus hearing regarding the rape and the identification. The victim testified at trial that on the evening of January 22, 1965, a youth with a butcher knife grabbed her in the doorway to her kitchen:

'A.  He grabbed me from behind, and grappled -- twisted me on the floor.  Threw me down on the floor.

'Q.  And there was no light in that kitchen?

'A.  Not in the kitchen.

'Q.  So you couldn't have seen him then?

'A.  Yes, I could see him, when I looked up in his face.

'Q.  In the dark?

'A.  He was right in the doorway -- it was enough light from the bedroom shining through.  Yes, I could see who he was.

'Q.  You could see?  No light?  And you could see him and know him then?

'A.  Yes." Tr. of Rec. in No. 237, O. T. 1967, pp. 33-34.

"When the victim screamed, her 12-year-old daughter came out of her bedroom and also began to scream.  The assailant directed the victim to 'tell her [the daughter] to shut up, or I'll kill you both.' She did so, and was then walked at knifepoint about two blocks along a railroad track, taken into a woods, and raped there.  She testified that 'the moon was shining brightly, full moon.' After the rape, the assailant ran off, and she returned home, the whole incident having taken between 15 minutes and half an hour.  She then gave the police what the Federal District Court characterized as 'only a very general description,' describing him as 'being fat and flabby with smooth skin, bushy hair and a youthful voice.' Additionally, though not mentioned by the District Court, she testified at the habeas corpus hearing that she had described her assailant as being between 16 and 18 years old and between five feet ten inches and six feet tall, as weighing between 180 and 200 pounds, and as having a dark brown complexion.  This testimony was substantially corroborated by that of a police officer who was testifying from his notes.

On several occasions over the course of the next seven months, she viewed suspects in her home or at the police station, some in lineups and others in showups, and was shown between 30 and 40 photographs. She told the police that a man pictured in one of the photographs had features similar to those of her assailant, but identified none of the suspects.  On August 17, the police called her to the station to view respondent, who was being detained on another charge.  In an effort to construct a suitable lineup, the police checked the city jail and the city juvenile home.  Finding no one at either place fitting respondent's unusual physical description, they conducted a showup instead.

"The showup itself consisted of two detectives walking respondent past the victim.  At the victim's request, the police directed respondent to say 'shut up or I'll kill you.' The testimony at trial was not altogether clear as to whether the victim first identified him and then asked that he repeat the words or made her identification after he had spoken. n4 In any event, the victim testified that she had 'no doubt' about her identification. At the habeas corpus hearing, she elaborated in response to questioning.

'A. That I have no doubt, I mean that I am sure that when I -- see, when I first laid eyes on him, I knew that it was the individual, because his face -- well, there was just something that I don't think I could ever forget.  I believe -- --

'Q.  You say when you first laid eyes on him, which time are you referring to?

'A.  When I identified him -- when I seen him in the courthouse when I was took up to view the suspect." App. 127.

"We must decide whether, as the courts below held, this identification and the circumstances surrounding it failed to comport with due process requirements."

Judge Smith should be asked  to decide whether the identification of the Duke Three and the circumstances surrounding it failed to comport with due process!

The majority reviewed prior relevant cases:

"We have considered on four occasions the scope of due process protection against the admission of evidence deriving from suggestive identification procedures.  In Stovall v. Denno, 388 U.S. 293 (1967), the Court held that the defendant could claim that 'the confrontation conducted . . . was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.' Id., at 301-302. This, we held, must be determined 'on the totality of the circumstances.' We went on to find that on the facts of the case then before us, due process was not violated, emphasizing that the critical condition of the injured witness justified a showup in her hospital room.  At trial, the witness, whose view of the suspect at the time of the crime was brief, testified to the out-of-court identification, as did several police officers present in her hospital room, and also made an in-court identification.

"Subsequently, in a case where the witnesses made in-court identifications arguably stemming from previous exposure to a suggestive photographic array, the Court restated the governing test: 'We hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S. 377, 384 (1968).

Again we found the identification procedure to be supportable, relying both on the need for prompt utilization of other investigative leads and on the likelihood that the photographic identifications were reliable, the witnesses having viewed the bank robbers for periods of up to five minutes under good lighting conditions at the time of the robbery.

"The only case to date in which this Court has found identification procedures to be violative of due process is Foster v. California, 394 U.S. 440, 442 (1969). There, the witness failed to identify Foster the first time he confronted him, despite a suggestive lineup. The police then arranged a showup, at which the witness could make only a tentative identification. Ultimately, at yet another confrontation, this time a lineup, the witness was able to muster a definite identification. We held all of the identifications inadmissible, observing that the identifications were 'all but inevitable' under the circumstances.  Id., at 443. In the most recent case of Coleman v. Alabama, 399 U.S. 1 (1970), we held admissible an in-court identification by a witness who had a fleeting but 'real good look' at his assailant in the headlights of a passing car.  The witness testified at a pretrial suppression hearing that he identified one of the petitioners among the participants in the lineup before the police placed the participants in a formal line.  MR. JUSTICE BRENNAN for four members of the Court stated that this evidence could support a finding that the in-court identification was 'entirely based upon observations at the time of the assault and not at all induced by the conduct of the lineup.'  Id., at 5-6." From these prior cases, the majority derived guidelines and applied them to the facts on the case it was deciding:

"Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidentification. It is, first of all, apparent that the primary evil to be avoided is 'a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S., at 384. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of 'irreparable' it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant's right to due process, and it is this which was the basis of the exclusion of evidence in Foster.  Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous.  But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process.

"What is less clear from our cases is whether, as intimated by the District Court, unnecessary suggestiveness alone requires the exclusion of evidence.  While we are inclined to agree with the courts below that the police did not exhaust all possibilities in seeking persons physically comparable to respondent, we do not think that the evidence must therefore be excluded.  The purpose of a strict rule barring evidence of unnecessarily suggestive confrontations would be to deter the police from using a less reliable procedure where a more reliable one may be available, and would not be based on the assumption that in every instance the admission of evidence of such a confrontation offends due process.  Clemons v. United States, 133 U. S. App. D. C. 27, 48, 408 F.2d 1230, 1251 (1968) (Leventhal, J., concurring); cf.  Gilbert v. California, 388 U.S. 263, 273 (1967); Mapp v. Ohio, 367 U.S. 643 (1961). Such a rule would have no place in the present case,  since both the confrontation and the trial preceded Stovall v. Denno, supra, when we first gave notice that the suggestiveness of confrontation procedures was anything other than a matter to be argued to the jury.

"We turn, then, to the central question, whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime,  the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Applying these factors, we disagree with the District Court's conclusion.

"In part, as discussed above, we think the District Court focused unduly on the relative reliability of a lineup as opposed to a showup, the issue on which expert testimony was taken at the evidentiary hearing. It must be kept in mind also that the trial was conducted before Stovall and that therefore the incentive was lacking for the parties to make a record at trial of facts corroborating or undermining the identification. The testimony was addressed to the jury, and the jury apparently found the identification reliable. Some of the State's testimony at the federal evidentiary hearing may well have been self-serving in that it too neatly fit the case law, but it surely does nothing to undermine the state record, which itself fully corroborated the identification.

"We find that the District Court's conclusions on the critical facts are unsupported by the record and clearly erroneous.  The victim spent a considerable period of time with her assailant, up to half an hour.  She was with him under adequate artificial light in her house and under a full moon outdoors, and at least twice, once in the house and later in the woods, faced him directly and intimately.  She was no casual observer, but rather the victim of one of the most personally humiliating of all crimes. Her description to the police, which included the assailant's approximate age, height, weight, complexion, skin texture, build, and voice, might not have satisfied Proust but was more than ordinarily thorough.  She had 'no doubt' that respondent was the person who raped her.  In the nature of the crime, there are rarely witnesses to a rape other than the victim, who often has a limited opportunity of observation. The victim here, a practical nurse by profession, had an unusual opportunity to observe and identify her assailant. She testified at the habeas corpus hearing that there was something about his face 'I don't think I could ever forget.' App. 127.

"There was, to be sure, a lapse of seven months between the rape and the confrontation. This would be a seriously negative factor in most cases.  Here, however, the testimony is undisputed that the victim made no previous identification at any of the showups, lineups, or photographic showings.  Her record for reliability was thus a good one, as she had previously resisted whatever suggestiveness inheres in a showup. Weighing all the factors, we find no substantial likelihood of misidentification. The evidence was properly allowed to go to the jury.

"Affirmed in part, reversed in part, and remanded.

In the Duke case, the totality of the circumstances as now known surely would void the identification of any of the Duke Three, especially given their accuser's history, contradictory accounts, prior descriptions and prior failures to identify.  As in Foster v. California, in which due process was held to have been violated, the accuser failed to identify initially. The identification procedure in the Duke case was much worse.  Further, given the accuser's failure to pick anyone until she finally picked the Duke Three, any in-court identification by her of any of them would be excluded under the judicial doctrine excluding "fruit of the poisoned tree." There was no basis for proceeding against any of the Duke Three before their fatally flawed identification.  The continuation of the case irreparably prejudices them;

Accordingly, the Duke case must be dismissed upon motion and the motion should be made forthwith.

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.