Topic category:  Other/General

Brad Bannon and I view the significance of the Duke case differently. I see it as symptomatic of significant problems in North Carolina's criminal justice system, while Mr. Bannon wants to shout from the mountain tops, "I am not going to let the view of North Carolina's criminal justice system to America be [the Duke] case."

Mr. Bannon: "This case is an anomaly, and North Carolina is not a backwoods, regressive society. We are progressive, particularly in the area of recognizing flaws in our criminal justice system and constantly working to improve it. The train has long been on that track of progression, and it was only derailed in people's minds as a result of this case."

My position: "North Carolina's criminal justice system needs major reform, not fine tuning," and the Duke case should spur that reform.

As a New Yorker, it behooves me to cite North Carolina authority to support my position, so I shall do.

Allan Shackelford is both an attorney and consultant for higher education institutions. With nearly 30 years experience, he has counseled institutions of higher education on issues including student affairs, policy development, internal investigations, and risk management. He has also presented at a number of national higher education conferences such as ACE, NASPA and the National University Security Workshop. He received his B.A. in History from Emory University and J.D. from the University of Georgia School of Law and practiced law for more than a quarter of a century in North Carolina, mostly as a partner with the prestigious with Smith Moore firm, with offices in Atlanta, Georgia, and in Charlotte, Greensboro, Raleigh, and Wilmington, North Carolina.

Mr. Shackelford and Anne Lundquist (Dean of Students at Wells College in Aurora, NY) co-authored The Student Affairs Handbook: Translating Legal Principles into Effective Policies and presented When Risk Management and Crisis Management Intersect: Lessons Learned From the Virginia Tech Tragedy and Duke Lacrosse Scandal, a 90-minute audio conference focusing on the lessons learned from the Duke rape case, the Virginia Tech shootings, and other high-profile campus crises.

With permission, I am pleased to share Mr. Shackelford's expert appraisal of North Carolina's criminal justice system (he is not as sanguine about it as Mr. Bannon), for the sake of completeness (and at the risk of being charged with burying the lead again) I set forth his letter to me in full, and for the sake of those who think my articles are too long I put Mr. Shackelford's resume at the end as optional reading:

"Dear Mike -- I have read with considerable interest your statements, revelations and opinions about the Duke lacrosse case and the misconduct of those who created this reprehensible situation.

"However, what most observers and the media generally have failed to grasp and understand is that the prosecutorial misconduct evidenced in the Duke lacrosse case is only the tip of the iceberg regarding the history of judicial and prosecutorial misconduct in North Carolina.

"While there may still be a tendency on the part of some to reject the notion that judges, prosecutors and others in the North Carolina judicial system would violate the public trust and/or ignore an individual plaintiff's or defendant's civil rights in a particular case, the truth is that Mr. Nifong's prosecutorial and ethical misconduct in the Duke lacrosse case is not even the most egregious recent incident of prosecutorial misconduct in North Carolina.

"Furthermore, the perception that judges, prosecutors and lawyers generally in North Carolina regulate themselves effectively also fails to reflect accurately the historic, tepid responses by The North Carolina State Bar to enforce the Rules of Professional Conduct and hold accountable those lawyers who violate them. The truth is that the aggressive and proactive series of actions taken by The North Carolina State Bar involving Mike Nifong were an aberration. The sort of misconduct engaged in by Mr. Nifong has been repeatedly tolerated, condoned and/or excused by many of those in North Carolina charged with oversight of the State's court system. And, the problem in North Carolina is not confined just to those attorneys within the court system.

"I now live in New York, but practiced law in North Carolina for more than 25 years, most of that time as a partner in one of the largest law firms in the State. In the last two or three years that I was in North Carolina, I was involved in handling matters that provided me with great insights into the questionable character and professional ethics of certain of the more prominent lawyers and law firms in North Carolina.

"In one such instance, the then Immediate Past President of the North Carolina Bar Association engaged in conduct in a litigation matter that was tantamount to 'extortion' or 'black mail.' This was the stated opinion of two representatives of The North Carolina State Bar, the then incoming Chair of the Grievance Committee (the committee that handles complaints of ethical and professional misconduct) and a State Bar Counselor. It was also the opinion of the former Chair of one of the three largest law firms in North Carolina, who was considered one of the preeminent litigators in the State.

"However, one of these three lawyers, the in-house counsel for my client and the incoming Chair of the Grievance Committee of the NC Bar, engaged in all sorts of machinations to keep from reporting the alleged misconduct of the former President of the NC Bar Association because to do so would have disclosed his own actions in apparently condoning a pattern of 'unfair and deceptive trade practices' involving contracts of sale with a South Korean company, a situation that may have also resulted in securities fraud.

"I was also involved in a situation in which members of a large law firm’s Management Committee refused to report allegations of misconduct by the closeted, homosexual president of a college in North Carolina involving certain male students to the college’s Board of Trustees. One of the members of that law firm’s Management Committee was and is the Chairman of the local school board and there is a high school program located on the college’s campus that is attended by over 100 students between the ages of 15 and 18.

"In my opinion, the choice these attorneys made to cover-up this situation was analogous to the widely-publicized 'political scandal' last year in which there were loud complaints that the leadership of the U.S. House of Representatives had not responded properly to allegations of sexual harassment involving an underage male page by Representative Mark Foley who was forced to resign his seat in Congress. And, the rationale given to me by one of the members of the law firm’s Management Committee for not reporting this situation to the college’s Board of Trustees was that she was afraid the firm would lose the client if these allegations were to be reported. In summary, the members of this law firm’s Management Committee were more concerned about protecting a revenue stream than in protecting the well-being of the client’s students.

"THE NORTH CAROLINA STATE BAR SHOULD NOT BE PERMITTED TO CONTINUE TO REGULATE ITSELF

"In the Fall 2005 issue of The North Carolina State Bar Journal, there is an article by James Dorsett, a North Carolina attorney, in which he asserts that self-regulation of the legal profession is in the best interests of both the legal profession and the citizens of North Carolina. I found his premise, based largely on his merely listing The State Bar’s various boards, committees and programs, not only wholly unpersuasive, but also condescendingly arrogant -- especially in view of his use of the Alan Gell fiasco, that is discussed below, as the genesis of his opinions.

"From my perspective, what these situations have demonstrated is that the legal profession in North Carolina cannot and should not be permitted to regulate itself. These situations have called into question the processes that have been established to enforce the North Carolina Rules of Professional Conduct and the functioning and credibility of The North Carolina State Bar itself.

"It has been my growing perception that certain attorneys in larger law firms in North Carolina and/or certain more prominent attorneys are choosing with impunity to push or break the envelope of the North Carolina Ethics Rules in a manner that attorneys who may not have such advantages would be held accountable by The North Carolina State Bar. Furthermore, as discussed below, this same attitude has also been prevalent among a number of key members of the judiciary at various levels within the court system, as well as among prosecutors. In North Carolina, the existence and practice of situational ethics has been taken to the extreme.

"The North Carolina State Bar is clearly not the best judge of what is right and/or what is wrong with the legal profession in North Carolina. As outlined below, the North Carolina Bar’s handling of the Alan Gell related matters and the self-interested excuses that were offered to defend The Bar’s reaction to that situation were deplorable. In contrast, The North Carolina State Bar had no choice but to do 'the right thing' in the recent case of prosecutorial misconduct involving Mike Nifong. The substantial publicity surrounding that situation gave the State Bar no choice but to sacrifice one of its own, even though other prosecutors who previously engaged in even more egregious prosecutorial and ethical misconduct were 'let off the hook.'

"However, it is telling that even in this most recent instance of prosecutorial and ethical misconduct involving Mike Nifong, when even he agreed that he should be disbarred, 8 of the 16 members of the North Carolina Bar's Grievance Committee voted not to issue a complaint of ethical misconduct against Mr. Nifong. It was only because the Chair of that Committee broke the tie vote that the case against the three former Duke lacrosse players came to an end when it did.

"PROSECUTORIAL MISCONDUCT HAS BEEN TOLERATED AND EXCUSED BY THE NORTH CAROLINA STATE BAR AND THE NORTH CAROLINA SUPREME COURT

"For more than twenty years, going back at least to the daycare related prosecutions in Edenton, North Carolina, judicial and/or prosecutorial misconduct has not been an anomaly in North Carolina. The fact that this sort of misconduct has been repeatedly tolerated, condoned and/or excused by those charged with overseeing the system may explain why Mike Nifong apparently believed he could withhold evidence in the Duke lacrosse case with impunity.

"The North Carolina court system has a history of prosecutorial and judicial misconduct that has been tolerated and excused by The North Carolina State Bar and the North Carolina Supreme Court. In 1998, two prosecutors from the Special Prosecution Unit of the North Carolina Attorney General’s Office, David Hoke and Debra Graves, withheld exculpatory evidence from the defense in the murder trial of Alan Gell in Bertie County, North Carolina. As a result of his unjust conviction, Mr. Gell spent nine years behind bars, half on death row. In 2002, a new trial was ordered because the prosecutorial misconduct had come to light. Mr. Gell was then acquitted in February 2004. This serious misconduct involved prosecutors who worked in the same section of the Attorney General’s Office as those who recently reviewed the felony cases involving the three former Duke Lacrosse Team members.

"In response to complaints being brought to the attention of The North Carolina State Bar regarding Mr. Hoke’s and Ms. Graves’ misconduct, the State Bar conducted a disciplinary hearing and merely reprimanded them, in effect, giving them a 'slap on the wrist,' the most lenient discipline available for prosecutorial misconduct that had resulted in Mr. Gell’s wrongful incarceration for nine years. Furthermore, in violation of the North Carolina Code of Judicial Conduct, Justice Bob Orr of the NC Supreme Court wrote a letter to the Raleigh News & Observer defending Hoke’s and Grave’s misconduct. He did this with total disregard for the North Carolina Judicial Standards Commission which had rebuked him for other improper remarks just several months previously.

"The North Carolina State Bar was criticized in many quarters for its failure to have taken more appropriate, more decisive and more severe actions to discipline Mr. Hoke and Ms. Graves, as their outrageous conduct clearly warranted. In response to this criticism, the Bar, in the opinion of many persons, went to great lengths to whitewash what had happened by the appointment of an 'investigatory' Disciplinary Review Committee that concluded, as the leaders of the State Bar likely wished, that the Bar and its staff had done nothing wrong in their handling of the disciplinary case against Hoke and Graves. The Committee’s findings resulted in additional criticism of the State Bar for its failure to have enforced Bar ethics rules in a meaningful way.

"The North Carolina Bar is a very incestuous and self-serving organization. Moreover, contrary to Disciplinary Review Subcommittee Chair Wade Smith’s denials on behalf of the Bar’s investigatory processes related to the Hoke and Graves matter, in my opinion, the State Bar’s mishandling of this situation raised inferences of a certain level of corruption touching upon a number of prominent and visible members of the Bar, those charged with enforcing the ethics rules that are supposed to guide the conduct of Bar members and the processes that have been established to enforce those rules. Moreover, in my opinion, this entire process demonstrated clearly that the North Carolina Bar is an organization that is corrupt and riddled with the influences of personal agendas, connections and favoritism.

"Wade Smith is, of course, one of the attorneys who represented Collin Finnerty in the Duke lacrosse case and recently served as the spokesperson of the parents and other family members of the Virginia Tech shooter. I found it disturbing that he went from being the 'chief apologist' for The North Carolina State Bar in the Alan Gell related matter to representing Collin Finnerty. I wonder if anyone ever considered whether his involvement in this earlier matter might have created a possible 'issues conflict' regarding his representation of Collin Finnerty in the recent criminal case.

"In my opinion, if Wade Smith and the North Carolina Bar would have taken the 'right' ethical and moral stance in the Alan Gell matter, Mike Nifong might not have been so willing to hide exculpatory evidence in the Duke lacrosse case. Instead the message that Mike Nifong and other officials within the North Carolina judicial system received is that they could use and abuse their powers without regard to the civil rights of those whom they are obligated to serve."

"Last year, it was discovered that two former Union County, North Carolina prosecutors, Kenneth Honeycutt and Scott Brewer, withheld evidence from the defense and lied to the trial judge regarding related issues in a 1996 death penalty case that resulted in the conviction of Jonathan Hoffman. Even though they engaged in misconduct that sent a defendant to death row, it now appears that Honeycutt and Brewer have escaped any discipline by The North Carolina State Bar because of, in part, a purported 'clerical oversight' at the N.C. Supreme Court and other 'technicalities.'

"Carolin Bakewell, the former Counsel of The North Carolina State Bar, was severely criticized for her and her staff’s handling of the ethics complaints against David Hoke and Debra Graves in the Gell matter. She was also personally criticized by some for what they viewed as her failure to pursue ethics complaints aggressively and without partiality against Honneycutt and Brewer in this latter matter. She recently left the employment of The North Carolina State Bar, and is now counsel for the North Carolina State Board of Dental Examiners, presumably a position that better fits her skill-set.

"JUDICIAL MISCONDUCT HAS BEEN ENCOURAGED, TOLERATED AND CONDONED BY JUDGES AND OTHER PERSONS RESPONSIBLE FOR SUPERVISING THE COURTS -- A RECENT EXAMPLE

"The District Court Division of the Guilford County Courts in Greensboro and High Point, North Carolina has a recent, well-documented history of racial prejudice, ethnic and religious bias and judicial misconduct and corruption. Furthermore, certain Judges who currently sit on the bench of this Court reportedly encouraged, tolerated and condoned this misconduct.

"In 2003, Chief District Court Judge William Daisy was forced to resign as Chief Judge after it was discovered that he had e-mailed offensive racial, ethnic and virulent anti-Semitic jokes and sexually explicit cartoons to other judges and lawyers. This misconduct had be allowed to go on for some period of time, and it was only after certain of the e-mails were 'leaked' to the press that any action was taken against then Judge Daisy.

"In accepting Judge Daisy’s resignation as Chief Judge, Supreme Court Chief Justice Beverly Lake attempted to excuse Judge Daisy’s misconduct stating, 'I am convinced he did not mean any offense, even though it was certainly offensive to many people.' The outrageous, condescending and pandering nature of Justice Lake’s comment was clearly demonstrated when it subsequently come to light that Judge Daisy had 'hugged, touched and engaged in physical contact' with two women who worked for the Court while he was serving on the Guilford County bench.

"Certain aspects of Judge Daisy’s inappropriate conduct was reportedly common knowledge among his colleagues on the Guilford County bench, other court employees and certain attorneys who regularly practice before this Court, all of whom failed to report his misconduct to the Judicial Standards Commission, the North Carolina Supreme Court or The North Carolina State Bar. Furthermore, many of those who are themselves guilty of encouraging, tolerating and condoning racism and anti-Semitic misconduct by not reporting Judge Daisy’s actions remain within the Guilford County court system and on the bench of the Court.

"This 'slap in the face' to the public’s confidence in the judicial system concerned the outrageous misconduct of the Guilford County Judge whom the Greensboro News & Record, the primary newspaper in Greensboro, North Carolina, identified as 'arguably the smartest judge in Guilford County' in a pre-election editorial dated October 27, 2000.

"CONCLUSION

"The above, in part, are among the more recently publicized examples of the misconduct and abuses that have occurred inside the State of North Carolina’s judicial system. Again, they suggest a rationale for why judges, prosecutors and others within the State’s judicial system, including Mike Nifong, may have come to believe that they could engage in misconduct and abuses of power with impunity. Historically, such misconduct has simply been excused and/or covered-up. The significant hypocrisy these examples demonstrate have caused certain academics studying the North Carolina court system to suggest that North Carolina is a state where 'justice' is characterized by judicial and prosecutorial abuse and misconduct.

"I hope the information in this e-mail will be helpful to you in thinking further about how the misconduct of those charged with oversight of the legal profession in North Carolina has undermined the credibility of that profession and contributed to the atmosphere that allowed Mike Nifong to believe that he would not be held accountable for his misconduct.

"Also, please feel free to pass along this information to those with whom you have been communicating about the Duke lacrosse case.

"Sincerely yours,

"Allan L. Shackelford'

Mr. Shackelford's resume:

Allan L. Shackelford, Post Office Box 92, Aurora, New York 13026

As an attorney, counselor and/or consultant, Allan Shackelford has advised institutions of higher education and employers in a variety of businesses and industries for almost thirty years. Allan is not admitted to practice in New York.

Higher Education

Allan has counseled and advised institutions of higher education on various issues, including employee relations, diversity and multiculturalism, student affairs, academic freedom, tenure disputes, policy development, internal investigations, athletics, studies abroad, risk management, governance, accreditation, institutional development and the implementation and marketing of graduate degree programs.

He is the co-author of The Student Affairs Handbook: Translating Legal Principles into Effective Policies (with Anne Lundquist, Dean of Students, Wells College), March 2007, LRP Publications. In this book, the authors advocate a deliberative, strategic, integrated, collaborative and proactive organizational management approach for institutions of higher education.

Allan has presented at a number of national higher education conferences, including the annual meetings of the American Council on Education (“ACE”), NASPA: Student Affairs Administrators in Higher Education, and the National University Security Workshop. At various education conferences and training programs, Allan has spoken on numerous topics, among which are Anticipating and Managing Emerging Legal Issues, Limiting Liability on Campus, Managing Media Spotlight, Student Admission Criteria, Academic Freedom, Diversity and Multiculturalism in the Classroom, Maximizing Learning Opportunities of Women and Minority Students, Hate Crime Hoaxes, Communicating With the Angry Parent, Legal Issues Affecting Study Abroad Programs, Dealing Effectively With Students Who Have Psychiatric Disabilities, and Avoiding Discrimination in the Academic Workplace.

Business and Industry

As a management labor and employment attorney, Allan represented employers regionally and nationally in a wide variety of matters. Much of his practice involved counseling clients on solving business disputes and labor and employment problems to avoid litigation. In his counseling role, Allan has advised business owners and CEOs on strategic planning initiatives, investigations of alleged executive malfeasance, workers’ compensation cost containment, and internal and external crisis communications.

Allan has successfully defended employers against employment litigation claims in state or federal court in North Carolina, South Carolina, Georgia, Virginia, New York, Michigan, Maryland and Kentucky. He has represented employers throughout the United States in more than fifty union counter-campaigns. He has also represented employers in defending numerous unfair labor practice charges, trials before the National Labor Relations Board, EEOC and OFCCP compliance, and the establishment and maintenance of positive union-free employee relations programs. Allan has negotiated many collective bargaining agreements, including multi-location contracts, and has represented employers in a number of significant arbitrations, including work preservation grievances under a National Master CBA.

Allan has been a presenter at more than 250 labor and employment conferences, seminars or workshops on a wide range of subjects, including Positive Management Leadership.

Education

Allan received his B.A. in History from Emory University in 1970 and his J.D. from the University of Georgia School of Law in 1973.

Sample of Recent Presentations

“When Risk Management and Crisis Management Intersect: Lessons Learned from the Virginia Tech Tragedy and Duke Lacrosse Scandal,” LRP Publications Audio Conference, August 1, 2007.

“Effective Crisis Management for Students With and Without Disabilities,” LRP Publications Audio Conference, April 25, 2007.

“Student Conduct Review” (facilitated roundtable discussion), NASPA Student Affairs Law & Policy Conference, December 4, 2006.

“Fahrenheit 2015: Managing Tomorrow’s Burning Legal Issues So They Do Not Manage You” (with Anne Lundquist, Dean for Campus Life, Guilford College, and Aaron Fetrow, Associate Dean for Campus Life, Guilford College), 2005 NASPA Annual Conference, March 20, 2005.

“Limiting Liability on Campus: Who’s Going to Sue You Next?” (with Janice Abraham, President and CEO, United Educators, and Kathryn Bender, Associate General Counsel, Catholic University of America), American Counsel on Education 87th Annual Meeting, February 14, 2005. “Selected Legal Issues Affecting Student Affairs Officers in 2004-05,” North Carolina Independent Colleges & Universities, Annual Administrative Group Meeting, Meredith College, October 12, 2004. “Campus Action Team Manages Media Spotlight,” National University Security Workshop II, Clemson University, August 30, 2004.

Sample of Publications

“Conduct a Risk-Management Assessment Before Tragedy Strikes Your Campus -- 11 Issues to Consider in Light of the VA Tech Tragedy,” Dean & Provost, Vol. 8, Issue 9, May 2007.

“Follow the Rules of Fundraising,” Leadership Exchange, Summer 2006.

“Practical Solutions to Legal Issues, The Key Role of the SSAO” (with Anne Lundquist, Dean of Student Life and Associate Professor of English, Green Mountain College), Leadership Exchange, Summer 2005.

“Risk-Management Experts Advise Colleges on How to Avoid Lawsuits” (with Janice Abraham, President and CEO of United Educators, and Kathryn Bender, Associate General Counsel, The Catholic University of America), The Chronicle of Higher Education, February 15, 2005.

“Exercise Care in Completing Equal Opportunity Survey,” Triad Business News, February 16, 2001.

“Don’t Be Misled by the Lure of ‘Administrative Exemption,’” Triad Business News, November 19, 1999.

“Closing the Open Door,” Education Law, Vol. 4, No. 3, August 1992. “Comparable Worth - An Illusory Concept,” North Carolina Insight, Vol. 7, No. 2, October 1984.

Employment History

January 1, 2005 to present -- Higher Education and Human Resources consultant.

September 1, 1983 to December 31, 2004 -- Smith Moore Smith Schell & Hunter; Smith Helms Mulliss & Moore, L.L.P.; Smith Moore, LLP, Greensboro, NC. Partner (1986 to 2004). For six years, in a law firm of approximately 225 attorneys, Allan served as Practice Area Leader of the 15 attorneys in the firm’s Labor and Employment Law Practice Group. He was also a founding member of the firm’s Higher Education Practice Group.

June 14, 1977 to August 31, 1983 -- Thompson Mann & Hutson, Greenville, SC and Greensboro, NC. Partner (1979 to 1983). Boutique management labor and employment law firm.

August 1, 1973 to July 31, 1977 -- United States Air Force, Air Force Eastern Test Range (“AFETR”), Patrick Air Force Base, FL. Captain, Assistant Staff Judge Advocate. Procurement and Labor Law attorney.

Contact Information

Allan Shackelford can be contacted at the above address, by e-mail at allanshackelford@yahoo.com or by phone at (802) 671-2028.

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.