WEBCommentary Contributor

Author: Michael J. Gaynor
Date:  November 11, 2006

Topic category:  Other/General

Duke Case: Beware Kerry Sutton

Willie Sutton was a notorious bank robber who explained that he robbed banks because "that's where the money is." At least he told the truth about that.

Kerry Sutton is a lawyer. She works in Durham, North Carolina. Shehas represented one of the un-indicted co-captains (Matt Zash) and did legal work for one of the Duke Three (fellow co-captain David Evans).

Ms. Sutton recently brokethe heart of Liestoppers poetess Joan Foster, who let Ms. Sutton know it in a memorable poem titled "Kerry Sutton's Eyes":

"The day Dave Evans met the Press,
Yes, his courage did impress.
His words were moving, but to my surprise
All I saw was one woman's eyes.

"I watched her, and I thought I saw
Her pain in every breath he'd draw.
Her empathy, her abundant faith
Spoke to me on that Spring day.

"Her eyes told me she knew the truth.
Her eyes told me she'd seen the proof.
Her eyes told me, 'Believe this young man.'
Her eyes told me, 'Please understand.'

"Her eyes told me she felt the pain
Of all involved in this cruel game,
Where politics trumped procedural law.
Yes, this is what I thought I saw.

"But just the other day she spoke,
She crowed her approval, her Nifong vote.
'The right man!' And she decried
Opinions coming from outside.

"And every single word she spoke
Made her colleagues work just a local joke.
Integrity is when you say
You just can't have it BE BOTH ways.

"Yet that Spring day, it was her eyes
That said these charges all were lies.
That brought this 'Outsider' to pen this page.
But now those eyes... have turned away..."
Perhaps Ms. Sutton was suffering from indigestion, Joan.
There WAS reason to suspect her then.

Ms. Sutton on Durham County District Attorney Michael B. Nifong and the Duke case to The New York Times on April 11, 2006:

"He's an excellent trial attorney.He's truthful. I don't get the impression he's ever taken advantage of a situation. I think he's very fair. He always gives cases thoughtful consideration, and I expect him to do the same with this."

If you want someone to pander to Mr. Nifong, you need not look further than Ms. Sutton.

Ms. Sutton on the 2006 Durham County, North Carolina District Attorney election: "I believe the right person won. While I disagree with Mike's handling of the lacrosse case, he had a right to take the stance he did, and he is doing his job. If I ever mess up a case myself, I hope people won't judge my entire career based on that case alone."

Ms. Sutton may as well say that she agrees with Mr. Nifong's handling of the Duke case. Why offend him?

Mr. Nifong did NOT "have a right to take the stance he did."

Mr. Nifong is NOT "doing his job."

The Durham County District Attorney's job is to be a fair and impartial minister of justice.

The Durham County District Attorney does not have a dispensation to engage in prosecutorial misconduct when a complainant is a Durhamite and the accused are white members of Duke University's men's lacrosse team from wealthy Yankee families, even in an election year.

It became obvious that Mr. Nifong was not truthful about the Duke case.

It became obvious that Mr. Nifong is not "an excellent trial lawyer."

It became obvious that Mr. Nifong "took advantage of a situation."

It became obvious that Mr. Nifong is grosslyUNfair, NOT "very fair."

It became obvious that Mr. Nifong gave the Duke case "thoughtful consideration" as a political opportunity and thoughtfully decided to be morally blind to evidence of innocence.

If it did not become painfully obvious to Ms. Sutton that her "expectation" that Mr. Nifong would give to the Duke case the kind of "thoughtful consideration" that a fair and impartial minister of justice would have given to it, then Ms. Sutton is as hopeless as that monkey who sees no evil, hears no evil and speaks no evil.

More Ms. Sutton: "The fact that people from around the nation put their noses and money into the politics of Durham kind of skewed people's perspectives on what goes on here and what should go on here. I don't think that's appropriate."

Ms. Sutton is too young to have represented Sheriff Bull Connor, but when it comes to disparaging well-meaning people standing up for justice where the realproblem is denial of justice, she's a natural.

Excerpt from Jolanta Juszkiewicz's review of BULL CONNOR by William A. Nunnelly:

"'The [civil rights] movement was really about getting publicity for injustice' (p.164) noted Andrew Young, a lieutenant of King's. The Albany campaign was uneventful. In its wake, King directed the energies of the civil rights movement to Project C, for 'confrontation.' In Bull Connor, the civil rights movement found 'the perfect adversary,' to coin the author's term. There was no more vivid a picture of the injustice of segregation as 'the confrontation between grim-faced, helmeted policemen and their dogs, and black children chanting freedom songs and hymns.' (p.163) For a seven-day period in May 1963, the nation was exposed to these and similar pictures.... Reports of the incidents in Birmingham moved President John F. Kennedy to remark that 'the civil rights movement should thank God for Bull Connor. He's helped it as much as Abraham Lincoln.' (p. 164)

"A biography of a man and the times in which he lived....presents a closer and in-depth look at a subject, who for better or worse on a large or small scale, influenced the course of history. Pritchett, for the sake of expedience, temporarily acquiesced allowing the demonstrators to protest without incident. Connor's stubborn refusal to give way to the civil rights movement actually thrust the movement much needed revitalization. And the rest, as the saying goes, is a matter of history. Thus, Bull Connor, a man of humble roots and limited ambitions, determined to perpetuate the status quo even if that meant resorting to strong-arm tactics, became the subject of a biography. Connor and Birmingham played Goliath -- representing the last bastion of entrenched segregationist feeling -- to the civil rights movement's David."

Dr. King should have stayed in Georgia instead of going to Alabama?

Mr. Nifong has not used dogs and hoses to perpetuate the status quo in Durham. He has pervertedthe criminal justice system for the purpose. Durham needs all the helpit can get to cleanse its criminal justice system.

Like Bull Connor, Mr. Nifong is a Democrat.

Like the Democrat Governor of Alabama in 1963 (George Wallace, then, but not forever,resolved never to be "outniggered" again), the Democrat Governor of North Carolina (Michael Easley, for whom the black vote is critical) has acquiesced in unlawful abuse masquerading as law enforcement.

The difference is that this time the victims are white.

Under the law, that's not supposed to be legally significant.

The support of Ms. Sutton (and attorney Butch Williams)for Mr. Nifong has distressed many.

"It remains hard for me to believe that Matt Z. or Dan F. would perjure himself to support a false charge against a teammate, yet clearly their lawyers, Kerry Sutton and Butch Williams, both big Nifong boosters who put their ability to cut deals with the DA in the future ahead the interests of justice, can't be assumed to be above urging their clients to enter into a conspiracy with their good buddy, and neither player has as yet publicly fired his morally bankrupt lawyer. What are we to make of this situation?"

So posted "Photios" at the Talk Left discussion board.

To attempted reassurance--"There's a big difference between publicly praising a dirtbag for purposes of self-interest and fraudulently selling a teammate up the river."--"Photios" was dismissive: "Of course there is. But I see very little difference between publicly praising a dirtbag for purposes of self-interest and urging a client to fraudulently sell a teammate up the river, and am puzzled why MZ and DF still retain Sutton and Williams."

"Elizabeth" speculated: "They might retain Sutton and Williams because Sutton and Williams are buddy buddy with Nifong. I do not think that means the player "'turned.' Sutton and Williams have always supported Nifong,and that might have prevented the indictments of MZ and DF, but that does not mean MZ and DF have 'turned.'"

Photios was not fooled: "Well, I think anyone who had Sutton or Williams for a legal advisor would need another legal advisor to advise them whether their first advisor's advice was really in their interest or in Nifong's."

"OM" took offense on behalf of Sutton and Williams: "I'm sorry Photios, but I'm flabbergasted that someone would suggest that either attorney would suborn perjury by their clients in support of this prosecution. On what basis do you suggest that they would do so other than that these lawyers may be supportive of Nifong as DA and may have the need to deal with him in the future?"

"Photios" patiently explained what should have been obvious:"Lawyers as close to the case as Sutton and Williams are know that Nifong is deliberately trying to convict three innocent defendants to advance his political career. And they are cooperating with him in certain ways to advance his political career. It seems to me a very small step from that to cooperating with him in other ways to advance his political career. Iskinner thinks it is a bigger step than I do, and I can't claim that I know I am right and he is wrong, and in fact I hope he is right and I am wrong, but I don't see how anyone acquainted with the case could be flabbergasted at the suggestion."

"macd" was realistic and pragmatic: "It's too bad that in Durham, 'very good lawyer" means making donations to the DA's campaign fund. If I was under investigation in Durham, I would want a 'very good lawyer'."

"weezie" was realistic too: "Sutton and Williams are stuck there in Durham. Maybe they are resigned to Nutfong's existence as being a permanent part of their legal landscape. A guy like Cheshire has a more far-reaching reputation. He can pick and choose his cases."

"Photios" clarified: "I don't think a player has turned. I doubt any would even shade or slant or trim or tailor his testimony to fit Nifong's needs even to the very limited extent that this could be done by mere equivocation or prevarication, as distinct from outright lying. I'm not SURE that any has even been urged by his lawyer to do even that much. I do think that a person who knows as much about the case as Sutton and Williams do, and still supports Nifong, for WHATEVER reason, would be capable of just about anything. Nifong is such a sewer of moral depravity that anyone who shakes his hand stinks. Of course, persons in the category of 'knowing as much about the case as Sutton and Williams do and still supporting Nifong' include not only a number of well-known Durham personalities but also certain posters on this board. I couldn't care less whether I have any 'credibility' with such persons."

"Bob in Pacifica":

"I don't think that these lawyers are going to suborn perjury from their clients. Their clients are apparently no longer in any legal jeopardy, so there doesn't seem to be a reason for any of this. I don't know if they feel that their attorneys are competently representing them.

"However, if my attorney were saying sweet things about Nifong in public I'd fire him/her on principle."

Principled "Marie":

"I agree with Bob. It's expensive to change lawyers but especially in the case of Williams, I think I'd have to do it. Williams went out of his way to express support for Nifong in the general election and the guy has three innocent former teammates under indictment. I think I'd have to fire him on principle.

"I haven't heard much from Sutton but I know she supported Nifong in the primary. If she still supported him in the general election after everything that's come out, I think I'd have to can her too."

The "Sutton problem" highlights what makes the Duke case exceptional.

Defense lawyers are supposed to represent their clients zealously, of course.

BUT, that's NOT not supposed to require reporting the district attorney for professional misconduct, or moving to have the district attorney removed fromthe case, or moving to dismiss a case based on flagrant violations of the constitutional rights of defendants resulting from a decision by the district attorney to regard his duty for personal and political reasons.

In the Duke case, it is the district attorney who should be prosecuted, not prosecuting.

For local lawyers to do their duty to their clients under those circumstances is potentially catastrophic personally (and problematic for all their other clients within the reach of a rogue district attorney).

Still, that's what local defense lawyers have a duty to their clients to do.

Grievances filed against Mr. Nifong will not be acted upon until the lacrosse case is over.

And (fortunately for Mr. Nifong) those grievances are not public.

Kirk Osborn, Reade Seligmann's attorney, boldly moved to remove Mr. Nifong from the case, but discovery proceeded without that motion having been addressed.

The splitting of the anti-Nifong vote (you will go down in history, Steve Monks!) allowed Mr. Nifong to be elected, even though most voters did not vote for him, giving him a four-year term beginning in 2007.

Analysis of the vote shows overwhelming black support for Mr. Nifong, so overwhelming that a black juror may fear voting to acquit, regardless of the lack of evidence. (Remember that "Dead man walking" chant aimed at Reade Seligmann?)

That leaves the defense attorneys to muse about trying to win a change of venueor a pre-trial dismissal.

Changes of venue are not routinely granted, but the Duke case is hardly routine.

Fortunately, pre-trial dismissal is appropriate in the circumstances.

North Carolina General Statutes Section 15A-954(a)(4) states: "The court on motion of the defendant must dismiss the charges stated in a criminal proceeding 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."

The Duke Three's constitutional rights to due process and equal protection rights were flagrantly violated and the Duke Three have been irreparably prejudiced: but for the violations, they would not have been indicted.

The procedure used to pick the Duke Three as defendants (personally ordered by Mr. Nifong) was a travesty. .But for the tainted identification, none of the Duke Three would have been indicted.

Would Ms. Sutton make the motion to dismiss if she represented one of the Duke Three?

What do you think?

Will the Duke Three jointly move to dismiss?

They should.

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
All Rights Reserved.

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