WEBCommentary Contributor

Author: Michael J. Gaynor
Date:  September 23, 2006

Topic category:  Other/General

Mr. Nifong's "Last Throws"

Judge Smith had raised concern by stopping the televising of pre-trial proceedings when he took over the Duke case, but his pre-"60 Minutes," pre-election ungagging is precisely what Mr. Nifong needed to avoid and why Mr. Nifong yearned for "a Durham solution" to the case. 

JUDGE OSMOND SMITH MODIFIED  JUDGE KENNETH TITUS'S GAG ORDER,  UNGAGGING POTENTIAL WITNESSES (INCLUDING THE DUKE THREE) TO SPEAK TO THE MEDIA ABOUT THE DUKE CASE.  Cause for celebration for the Duke case defense, "60 Minutes," the people of Durham County, North Carolina and free speech supporters.  Calamity for Mr. Nifong and his dwindling supporters:

Judge Smith had raised concern by stopping the televising of pre-trial proceedings when he took over the Duke case, but his pre-"60 Minutes," pre-election ungagging is precisely what Mr. Nifong needed to avoid and why Mr. Nifong yearned for "a Durham solution" to the case.  (Judge Smith's predecessors, especially the gagger, Judge Titus, running for re-election in November, were much more helpful to Mr. Nifong, a problem for the people of Durham to resolve on Election Day.)

Mr. Nifong opportunistically abandoned the high ground and egregiously abused his prosecutorial position even before he sought indictments in the Duke case.  His abominable behavior to date in connection with the Duke case has been addressed articulated, expertly and enthusiastically by many.  BUT, Mr. Nifong is still district attorney and still prosecuting the Duke case and determined to proceed with his persecution.

Ideally, (1) the people of Durham County will retire Mr. Nifong by voting for the Anybody But Nifong candidate (fellow Democrat Lewis Cheek) this November, (2) the North Carolina State Bar and the North Carolina courts that will hold him accountable in due course and (3) the Durham Court, with or without prosecution approval,  will dismiss the indictments of the Duke Three as improvidently granted and in the interests of justice.

Yet, this dramatic development notwithstanding, there is a new nuisance: the prosecution is accusing the defense of misconduct in conducting a jury pool survey and the defense is concealing the script used, as though it has something, instead of nothing, to hide.  If the accusation was obviously as well as actually absurd, it would be comical.  But the absurdity is not obvious to all and the decision of the defense not to disclose the questions included in the survey leaves Mr. Nifong's wife as the source of information on the subject and suggests to some that the defense has something to hide.

Mr. Nifong's wife said these were among the questions:

"Are you familiar with the case in Durham about the rape of a stripper and members of a sports team?

"Do you think a woman's sexual history should be part of a criminal trial?

"If a woman is hired as a stripper and she said she was raped, how likely are you to believe her?

"If you heard that there was semen on the towel, on the floor and fingernails located at the scene, yet there was not any DNA evidence on the victim, would you think a rape occurred?

"If you heard that one player had an alibi that included an ATM card listing the date and time of a withdrawal and digital camera photographs with the date/time on them indicating that he was not present at the time of the alleged rape, would you believe that he was not present during the rape?

"Do you think the lineup was improper?"

The only problem I see with any of these questions is that the first one claims that there WAS a rape instead of referring to an alleged or a claimed rape.  (I know we all have Mr. Nifong's assurance, but there is no credible evidence that there was a rape!)

Mr. Nifong's priority is to get elected in November.  Accordingly, he poses as champion of the people of Durham.  In the absence of actual credible evidence of guilt, he has relied in the courtroom of public opinion upon (1) his personal assurance that there was a rape (which may have even affected the phrasing of a defense survey question), (2) the usually reasonable public expectation that a prosecutor would not seek an indictment without solid evidence of guilt, (3) the understandable (but utterly unwarranted) suspicion that there must be some really bad stuff in all those pages Mr. Nifong produced or else the defense would have made it public instead of focusing on selected parts, (4) the general silence of the Duke Three (with the one splendid exception of David Evans' public statement after he was indicted), and (5) the suspicion of some that the survey is improper (it's not) and would not have been undertaken if the Duke Three really were innocent (it would have been; they are).

I am (1) pleased that the defense not only decided to survey the jury pool, but told Mr. Nifong in advance, and (2) disappointed that the defense has not released the survey script in response to Mr. Nifong's belated motion to stop the survey.  

Fortunately, there is a check on an out-of-control district attorney: the people of Durham, who can refuse to elect Mr. Nifong this November.  When the powers-that-be in a small county do not do what is right, the trick is to help the people whom they serve see what is going on in a clear light. 

Let the people of Durham see exactly what the script says! 

DON'T let Mr. Nifong pretend there is something wrong when there is nothing wrong or credible evidence of guilt when there is none.

Letting Mr. Nifong's wife be the source of the questions included in the survey is not a brilliant strategy (nor was letting Mrs. Nifong be one of the small group to be surveyed).

The Duke Three will not be convicted, because a jury will not consist of people who share the view of North Carolina Central State student Colin Hall, as reported in Newsweek, that Duke students should be prosecuted "whether it happened or not," as "justice for things that happened in the past."  Perhaps a person who thinks that way will slip onto the jury (if the Duke case is tried), but the entire jury will not be contaminated and there just is not credible evidence of guilt, much less proof of guilt beyond a reasonable doubt.

The defense's "silence" or "secrecy" strategy is designed to achieve tactical trial advantage, but it carries a high cost in the courtroom of public opinion.

The scoundrel Nifong is a laughingstock around America, but he still has some support in Durham County, North Carolina and some enthusiastic supporters of the Duke Three still foolishly excoriate Durham instead of only the despicable people perverting Durham's criminal justice system.

Example:  At the Friends of Duke University website, one poster commented: ""Cy Nifong certainly fits in the freak show that is Durham, NC." 

A Durhamite wisely responded: 

"I know it's hard under the circumstances, but can we take a break from comments such as 'Cy Nifong certainly fits in the freak show that is Durham, NC.'

"I live in Durham and I believe the following: the LAX guys are innocent, Nifong is paranoid, unethical and incompetent, Durham cops are corrupt or at the very least inept, and Duke/Durham relations are a mess (thanks to presumptions, miscommunication and missteps on both sides).

"Do I fit into the 'freak show' too? Please don't paint such a broad stroke on an entire community."

The moderator removed the "offending comment" and admonished posters:

"The offending comment was removed. Let us try not to make blanket statements about people or towns. That is what got us here in the first place.

"Pointing out the shortcomings of Durham is okay and we have all been doing it. But calling it a 'freak show' is going a little too far. Let us use better language. I know we can do better than this. Thanks."

Better still,  treat the good people of Durham as the victims they are and encourage them to act to rectify Durham problem's, especially Mr. Nifong's status as district attorney, by giving them facts as well as advice.

It was said by a former chief judge of New York State's highest court (later sent to prison) that a prosecutor could indict a ham sandwich. 

But, telling the people of Durham that the grand jurors who indicted the Duke Three are mindless pawns of Mr. Nifong is NOT fair or helpful (and it plays into the us-against-them strategy that Mr. Nifong has been pursuing in prosecuting three white Duke lacrosse players from wealthy families for alleging kidnapping, raping and sexually offending a young black Durham woman. Blame Mr. Nifong for the indictments, not the  the grand jurors (or the defense atrtorneys).  Neither the defendants nor the defense attorneys were permitted to address the grand jurors.  The grand jurors considered the evidence presented to them with knowledge that it was flawed or that there was credible conflicting evidence.  Mr. Nifong decided what evidence he would present and what evidence he refused to even consider. He was shamelessly selective, and the grand jurors were supposed to indict if the evidence presented to them met a probable cause standard.   

Concealing the survey script is unhelpful in the circumstances, especially since the defense had a duty as well as a right to gauge whether the Duke Three could get an impartial jury in Durham (due to Mr. Nifong).

Plainly, Mr. Nifong and his allies are sending out the malevolent message that the defense is trying to taint the jury pool when what the defense really was doing was trying to ascertain how badly Mr. Nifong's public statements had tainted it.

John in Carolina compared the coverage of two Durham newspapers of the defense survey story and showed how easily a false impression can be (deliberately) created by Nifongistas:

"Today both the Raleigh News & Observer and the Durham Herald Sun report concerning a phone survey of 300 Durhamites commissioned by attorneys for the three indicted Duke lacrosse players. Durham DA Mike Nifong is upset about the poll which he learned about from his wife, Cy Gurney. She was one of those polled.

"There are major differences in the two papers’ reporting. Let's look at a few of them.

"The H-S’s headlines :

Lacrosse defense survey questioned

Nifong says polling might taint jury pool

"Now the N&O’s headlines :

Nifong assails phone survey

Duke lacrosse players’ lawyers say poll was to gauge prosecutor’s early public comments.

"Right in the headlines the N&O tells readers defense attorneys say they polled to gauge the effects of Nifong’s early public comments. But the H-S says nothing about that and instead gives readers Nifong's spin that polling might taint the jury pool.

"The N&O story reports on the attorneys' concern beginning in its second paragraph:

The defense lawyers said they were only trying to assess how Nifong himself might have influenced a potential jury with his early public comments on the case …

"So when does the H-S mention the defense attorneys’ concern?

"The H-S waits until its tenth paragraph before it reports:

[The] defense says it gave its approval for the survey, 'as is their legal right and duty to protect the defendants' right to a fair trial before an impartial jury' as specified by the U.S. Constitution and North Carolina law.

'That impartiality could have been substantially threatened by extensive prejudicial comments' made by Nifong, the defense argues."

Nifong spin is to expected of The Herald-Sun, but the defense can and should diminish the effect by being open and showing respect for the people of Durham by disclosing the script.  Surveying is appropriate; so is a frank and full explanation.

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.

Copyright © 2006 by Michael J. Gaynor
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