Topic category:  Other/General

The Three are Reade Seligmann, Collin Finnerty and David Evans, the defendants in the prosecutorial disgrace called the Duke case.

Wendy Murphy is a law professor at New England School of Law and a former sex crimes prosecutor who has spoken and written in support of the prosecution that is a persecution..

In the name of balance, USA Today (which apparently learns faster than Ms. Murphy) published as an Opposing View to its editorial an article by Ms. Murphy titled "Job 1: Protect the Victim" and subtitled "It's only reasonable to be skeptical and just to wait for all the facts."

Ms. Murphy: "For nine months, we've hear only from defense lawyers in the Duke case, and they've refused to release certain evidence. The prosecutor cannot reveal evidence without risking sanctions (such as dismissal of charges) for tainting the jury pool. The defense lawyers are not subject to similar punishment, which is why they can speak more freely. But it doesn't mean we shouldn't be skeptical about what they're hiding."

Apparently Ms. Murphy has a problem with counting or simple arithmetic: the Democrat primary for Durham County, North Carolina District Attorney was held last May 2 and until then Michael D. Nifong spoke about the case, outrageously. He played the race card by pandering shamelessly to Durham County's black votes.  He insisted that there had been a rape when there was no rape.  He found it wise to stop talking about the case as the ugly truth about his star witness (Crystal Gail Mangum) surfaced.  That ugly truth prompted the NC NAACP to call for a gag order and Judge Kenneth Titus to issue it without either the prosecution or the defense having moved for it (thereby giving Mr. Nifong a reason to remain silent as the ugly truth demonstrated that Ms. Mangum was not credible).

Also, we have heard much more from "60 Minutes" and many commentators, reporters and bloggers who have investigated and/or researched the Duke case than we have heard from the defense attorneys, as well as from the Three themselves during the "60 Minutes" expose of the Duke case.

Ms. Murphy: "Durham County District Attorney Mike Nifong may have eyewitness statements from the defendants' friends and photos of the incident. If so, Nifong should be rewarded for respecting the defendants' rights by not leaking the type of evidence that could help him personally respond to criticism."

Mr. Nifong does not have anything worth leaking!  It's not a secret that the co-captains of the 2005-2006 Duke University Men's Lacrosse Team provided written statements or that Mr. Nifong produced the material that supposedly led him to seek indictments.  Months ago now MSNBC General Manager Dan Abrams  acknowledged having seen what Mr. Nifong produced (including those statements and Ms. Mangum's many versions of what supposedly happened to her) and he did not find evidence supporting any of the charges on which the Three were indicted (rape, kidnapping and sexual assault), of which only the last two remain pending.  Considering Mr. Abrams' own political views and his predisposition to believe that Ms. Mangum really had been victimized, his public declaration that there was no merit to the prosecution is very persuasive.  Others who have seen the documents concur.

Ms. Murphy:

"Other things to consider:

• The Wilmington Journal reported last June that a cousin of the alleged victim said she'd rejected offers of $2 million from Duke alumni to back out of the case.
• The photo lineup was not unfair. Not all party attendees were players, and many players were not at the party. Thus, it is false to say there were "no wrong answers" the accuser could give in making identifications.
• Nifong is criticized for not speaking to the victim about the case, but his reliance on responsible others is proper. It protects him from being removed from the case as a "witness." Many law enforcement, forensic and legal professionals support the prosecution and have not backed off despite the hype.
• Everyone learned last spring that DNA in the rape kit did not match that of the defendants. Information "held back" involved other men's DNA. This constitutionally protected private information should never be disclosed unless a judge deems it relevant. The defense argued that the evidence provides an alternative explanation for the victim's vaginal injuries, and the judge agreed.

Other things to consider and reject as misinformation would be accurate.

(1) That hearsay report has not been substantiated, and it was not claimed that any of the Three or any one authorized to represent any of the Three made any such offer and Ms. Mangum has not confirmed what her cousin said.

(2) The photo lineup WAS unfair. Not all party attendees were players, and not all players were not at the party.  But Ms. Mangum was led to believe that there were "no wrong answers" she could give in making identifications.

Brooklyn College Professor Robert K.C. Johnson, who has focused on the Duke case for months and exposed it as a hoax and Mr. Nifong as a scoundrel, eloquently explained that the April 4 photo-ID process was a deliberate and despicable denial of basic constitutional rights:

“This was an instance in which a district attorney, with nearly $30,000 of his own money riding on a victory in the primary, instructed the police to violate their own procedures, in a massive way.

• Five fillers per suspect? Nifong said no.
• A neutral officer rather than the lead investigator? Nifong said no.
• Telling the accuser that the suspects might or might not be in the array? Nifong said no.
• Following the rule not to run a second ID session after the first ID session had failed? Nifong said no.
• Making sure that all ‘suspects’ were included as even part of this tainted lineup, including the two non-lacrosse players police knew were at the party? Nifong said no.

Excerpt from the "60 Minutes" expose on the Duke case:

"[Ed Bradley speaking first]: [Duke Law School Professor James Coleman] says this line-up broke one basic principle: there were no 'filler” photos, no pictures of people not connected to the case.

"The accuser only saw photos of lacrosse players who police told her were at the party.

"'If she’s told all of these people who were considered suspects were at the party, so you pick three and we’ll indict those three,' Coleman says.

"'So she can’t make a mistake,' Bradley remarks.

"'Can’t make a mistake," Coleman replies.

"Professor Coleman says the line-up ordered by the D.A. for the Duke lacrosse case violated local, state and federal guidelines."

Both the late Ed Bradley and Professor Coleman happen to be black.

(3) Mr. Nifong is rightly criticized for not speaking to the victim about the case, because he took the unusual step of appointing himself lead investigator in the Duke case publicly vouched for Ms. Mangum's credibility and refused to consider evidence of innocence before seeking indictments. 

(4) Everyone DID learn last spring that DNA in the rape kit did not match that of the defendants. Information "held back" involved other men's DNA, but it obviously was relevant, since Ms. Mangum had claimed that she had no had sexual relations with anyone for a week and those DNA results contradicted her claim.  As Ms. Murphy knows, when a witness lies in one respect, a judge will instruct a jury that the jury may disregard the liar's entire tesatimony.

Moreover, even if this really is "constitutionally protected private information [that]  should never be disclosed unless a judge deems it relevant," Mr. Nifong obviously did not ask a judge to make a relevancy determination and instead agreed with Dr. Brian Meehan, the director of the private lab he chose to do further DNA testing when the first DNA results did not implicate any lacrosse player, that the results not be mentioned in the DNA Security report and misrepresented to the court the scope of his conversations with Dr. Meehan.  The concealed DNA results do much more than " provide[] an alternative explanation for the victim's vaginal injuries...."  

Ms. Murphy: "Days later, the prosecutor withdrew the 'rape' charge, which under North Carolina law consists only of penile-vaginal penetration. Other penetration crimes are covered by the remaining equally serious 'sexual offense' indictment. This may have been a brilliant move, because with no rape charge, the victim's sexual past is irrelevant — and the cause of justice is spared a salacious and distracting sideshow."

No, Ms. Murphy.  The defense is entitled to show that relevant statements made by Ms. Mangum to the police were falsehoods, to discredit Ms. Mangum as a witness if there is a trial in the case that is self-serving prosecutorial abuse. 

Ms. Murphy fancies herself a victims' rights advocate, but in the Duke case the Three are the victims and Ms. Murphy, a victimizer.

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.