Topic category:  Other/General

In the Duke case, the prosecution initially defied justice by seeking unwarranted indictments and then denied justice by dismissing only the rape charges.  Now justice is being delayed, as replacement prosecutors review what was done and not done by and under their infamous predecessor and investigate anew.

Ardent supporters of the Duke Three (Reade Seligmann, Collin Finnerty and David Evans) are distressed, yet at least one member of the defense team professed to be "excited" instead of dismayed.

Distress and dismay, even disgust, are natural reactions by good people to the prolongation of an utterly undeserved ordeal..

Fortunately, justice eventually will be obeyed in the Duke case, if not based on principle, then out of interest.

That said, let's not blame the defense attorneys for the delay until Monday, May 7, 2007.

After all, they are not responsible for the sad state of affairs that is North Carolina politics and race relations and they did not encourage any prosecutorial misconduct.

Friday, May 4, 2007 is the commencement date at North Carolina Central University and May 7, 2007 is the final day of the examination period at Duke for its spring semester.

The spring term already is ruined for Reade Seligmann and Collin Finnerty, and David Evans was lucky enough to graduate before being indicted, so putting an end to the Duke case at the end of the current school year is a tolerable way to end what has been intolerable: egregious abuse of prosecutorial power for personal advancement and attempted framing in the first degree as reparation for the sins of white racism.

If the remaining charges are not dismissed voluntarily by then (and, of course, they should be), then the motion to suppress will be heard.   Will Crystal Gail Mangum appear to testify under oath after seeing what happened to Mr. Nifong?  If not, case dismissed.  If so, after the cross-examination, Judge Smith will see fit to grant the motion to suppress and the case will end. [Note: Tawana Brawley avoided testifying under oath.]

Tony Soprano is among many who are disappointed, distressed, dismayed and/or disgusted that the replacement prosecutors have not dismissed the remaining charges yet, but he is not blaming the defense team.

Tony Soprano:

"We don't know. What if the SP [Special Prosecutor] indicated to the Defense attorneys they are leaning towards defending those motions in court and taking this to trial, but I haven't made my final decision?

"Cheshire could be thinking that he wants to give maximum time for the SP to drop the case - and doesn't want the SP to put his energy into preparing to defend motions in court in Late Feb.

"It's possible Cheshire was presented with Multiple options - and they were all poor.

"I could see the Defense team being shocked at that revelation - it's shocking to us!

"That post from DIW doesn't negate the fact that a delay like this cannot be seen as a good development.

"It's hard... in almost 3 weeks the SP hasn't concluded that this case is too riddled with holes and exculpatory evidence. They have ample resources, believe me.

"ONE CONCLUSION we can make, IMO: In almost 3 weeks, the SP's have decided the case, as they see it, warrants more investigation and they may seek to proceed to have a jury in a trial decide the case."

Tony, take it from a lawyer who clapped loudest for defense attorney Kirk Osborn's boldness; wanted Reade Seligmann and Collin Finnerty to demonstrate their innocence in the courtroom of public opinion by taking and passing polygraph tests with flying colors and challenging the false accuser to do the same (they did pass with flying colors, following the example of their co-captain, David Evans); believed that the case was a "death match" (figuratively speaking) between Mr. Nifong and the defense that had to be won in the courtroom of public opinion before the North Carolina State Bar would take action against Mr. Nifong; railed against the outrageous, unconstitutional gag order issued by Judge Kenneth Titus on July 17, 2006 (lifted by Judge Osmond Smith on September 22, 2006, upon a compelling defense motion dated July 21, 2006); celebrated "60 Minutes" deciding to expose the Duke case as a hoax before it was official; understood the defense strategy of NOT making a pre-trial motion to dismiss while Judge Ronald Stephens or Judge Titus was presiding; supported all joint defense motions (including the motion to compel the DNA-related discovery that resulted in Mr. Nifong being exposed as a scoundrel and the suppression and change of venue motions) and still supports a pre-trial motion to dismiss (if only as an added inducement to the replacement prosecutors to dismiss): the replacement prosecutors cannot possibly want to go to trial without physical evidence and with Ms. Mangum as their witness.

The challenge to the replacement prosecutors is to dismiss in a way and at a time that gives as much assurance as possible to the people that dismissal is appropriate and avoids as much as possible protests (and an affront to the black bloc vote upon which liberal white North Carolina Democrats like North Carolina Attorney General Roy Cooper, North Carolina Governor Michael Easley and Durham Congressman David Price depend).

The criminal justice system should not be influenced by political considerations, but it is.

Yes, the hearing scheduled for February 5, 2007 in the case that is a prosecutorial disgrace has been postponed until May 7, 2007.

But, was the defense responsible for the delay?

Only in the sense that it exposed prosecutorial misconduct that led the North Carolina Attorney General's office to replace Durham County, North Carolina District Attorney Michael B. Nifong for prosecution purposes with James Coman and Mary Winstead.

With North Carolina's black community watching (see that wicked Wilmington Journal editorial), the North Carolina Attorney General's office wanted plenty of time to review the file and reinvestigate.

 A defense objection to the replacement prosecutors' request for time would have been a foolish provocation, especially since Judge Smith would have granted the time anyway and the defense position is (and should be) that full investigation will show that the charges are bogus,

The defense is right to give the new prosecution team ample time to dismiss the remaining charges voluntarily, in the hope that Mr. Nifong's behavior was an aberration and attempting to frame out-of-state white lacrosse players from well-to-do or wealthy families is not appealing to the replacement prosecutors.

After meeting with the replacements, David Evans attorney Joseph Cheshire V appeared  gleeful:  "We are excited to have professional prosecutors who are willing to sit down and engage us in conversation.  We are excited that we are now engaged in a professional process."

Apparently Mr. Nifong lowered expectations so far that prosecutors talking to defense lawyers outside a courtroom is thrilling (a thought that is...chilling).

I doubt that many missed the insinuation that Mr. Nifong had been unprofessional (a great understatement, of course).

After Mr. Nifong, simple prosecutorial civility was cause to celebrate.

But ARE the replacements professional?

I'm keeping an open mind on that one and waiting for the evidence.

At this point, it is obvious that the Duke Three were nearly framed for kidnapping, rape and sexual offense and the ones really on trial in the courtroom of public opinion are the replacement prosecutors.

If they are professional, then the remaining charges will be voluntarily dismissed after a thorough investigation and there will be a report to the North Carolina State Bar on prosecutorial misconduct in connection with the Duke case.

If not, then Judge Osmond Smith will decide the pending motions that should be granted and effectively put an end to the persecution and it will be appropriate to ascertain why they did not dismiss.

I'm tempted to speculate why that might happen, but I will refrain from addressing that hypothetical question and afford the replacement prosecutors the presumption of regularity (which, like the presumption of innocence, is rebuttable).

Ben Niolet of The News & Observer reported:

"The prosecutors inherited a mammoth-sized case. Thousands of pages of evidence have been turned over to defense attorneys. The prosecutors will use the extra time to review the case, Attorney General Roy Cooper said in a prepared statement.

"'We will use this time to continue reviewing the case files, talking to the many people involved in the case and making sure that all discovery requests have been responded to properly,' Cooper said in the statement."

It should NOT take months to realize that the remaining charges should be dismissed, but it may take that long (or longer) for the North Carolina Attorney General's office to figure out how to do it without alienating the black bloc vote critical to Mr. Cooper's political career and prospects.

Mr. Niolet further reported:

"After the two-hour meeting, defense attorneys said they were pleased with the prosecutors. They described the session as a business meeting -- a far cry from the days when Nifong refused to sit with the lawyers. Defense attorneys in the case had criticized Nifong for refusing to meet with them even when they said they had evidence that the accusations were lies and that at least one of the charged players had an alibi."

I will not be pleased with the prosecutors unless and until they dismiss the bogus charges.

Wade Smith, an attorney for Collin Finnerty, explained that the meeting was mostly about scheduling and commented, "It's the kind of thing lawyers and prosecutors should do. They should talk."

Absolutely!

But only in the Duke case (I hope) would a civil scheduling meeting "excite" an experienced defense lawyer.

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.