Topic category:  Other/General

Announcing that the NAACP is "mindful of the long history of sexual violence against women," that once-respected organization continued to fan the flames of racism as the case moved from Durham County, North Carolina District Attorney Michael B. Nifong's dirty hands into those of another prosecutor. Durham Herald-Sun, January 19, quoting the president of North Carolina's NAACP chapter, Reverend William J. Barber.

Dr. Barber, president of the North Carrolina chapter of the NAACP,  "expressed concern that the Duke case could potentially have a chilling effect on women, particularly African Americans, filing sexual violence complaints." 

One wonders how, given the facts publicly revealed, any organization can focus its concern only on those who launch sex complaints while ignoring those falsely accused, genuine victims. Because complaints by those who earn little against those who earn more may be the precursors of blackmail, we all should examine them with healthy skepticism. Skepticism has the added virtue of being consistent with the constitutionally compelled presumption of innocence.

The NAACP in particular should be mindful of the dangers of false accusations, especially those crossing racial lines. In these circumstances, whether the accuser is black or white, the importance of presuming innocence should be on the tips of the tongues of all who pride themselves in denouncing racism. Perhaps the NAACP is not such an organization. Its quick and dogged embrace of the Stripper's Story may mean the NAACP finds racism acceptable so long as the favored race is black.

In the Stripper's case,  the NAACP says it wishes to avoid an outcome "based on biased and political or public pressure from anyone." Al McSurely, general counsel, is the author of a list of 82 "Crimes and Torts committed by Duke Lacrosse Team Players" on the state NAACP's news web site.  Now he says, seemingly unaware of the irony, that he and his organization have always advocated "fair treatment of both sides."

One can only wish the NAACP had advocated fair treatment of both sides last spring. Instead, this once-respected organization joined Mr. Nifong and several black political leaders in fanning a firestorm of unreasoned calls for indictments and punishment, calls laced with class- and race-based innuendo. Had respected leaders of the black community insisted then on taking bias and politics off the table, and had Mr. Nifong disclosed all of the exculpatory evidence while keeping his mouth shut and running for office without playing the race card, we might have had an outcome free from "biased and political and public pressure." Now however, thanks in no small measure to the public pronouncements of the NAACP, we have an indictment birthed by bias and politics.  Unless the court intervenes, the outcome now will turn on whether facts and reason can overcome ongoing public pressure placed on prosecutors by black leaders who still say threateningly, "we are watching." Wilmington Journal's latest editorial on the Duke case, entitled "OUR VOICE, ''WE'RE WATCHING YOU, MR. COOPER'', WEEK OF JANUARY 18-24, 2007."

In the NAACP's first public statement since Mr. Nifong's retreat in disgrace to his lawyer's lair, its president asked that defense attorneys "refrain from efforts to influence Durham citizens regarding the evidence which might be introduced at a trial." To that end, the NAACP's leader urged the State Bar to use its power to limit "the publication of evidence" that could influence a future jury.

Apparently the NAACP's position is that it and all non-lawyers should be free to continue speaking out in favor of the Stripper (aka Crystal Gail Mangum) and against "white males" or "people of privilege," but lawyers charged with defending the Stripper's Victims (members of the 2005-2006 Duke University Men's Lacrosse Team and their families and friends) should be silenced. Indeed the NAACP led the call for a gag order early on, when only  Mr. Nifong had spoken – misleadingly.  Having done all it could to influence Durham residents and the prosecution to believe the Stripper's Story, the NAACP now asks those who do not believe it to be quiet, and the Bar to silence those whose professional duty   compels zealous representation of the Stripper's Victims. Unabashedly, the NAACP asks that its side – the side that wishes to keep the public from seeing the evidence – be the only one heard.  

The NAACP's once-proud heritage would be better served if it used its influence to acknowledge that the many public rants by Mr. Nifong and black political leaders were unprofessional at best. See the defense's change of venue motion, available here: Change of Venue Motion .

Tying the NAACP's reputation to the credibility of the Stripper's Story was a grave mistake. It may be one that carries no price with NAACP supporters, as their prejudices may be so  entrenched that nothing will convince them that the Stripper lied. Even so, if the NAACP wants to have influence beyond its base and to deserve respect, it should consider whether objective analysis might be preferable to pandering to prejudice.

Although Mr. Barber, the NAACP chapter president, says he has not been in direct contact with North Carolina Attorney General Roy Cooper,  Mr. Barber said he had spoken with Mr. Cooper's staff regarding his concerns about the case and would be sending a note to Mr. Cooper to follow up. What business does the NAACP have in talking privately with the prosecution?  What is it trying to get the prosecution  to do?  Is privately pressuring prosecutors within the NAACP's charter? What is in the best interest of Colored People here? To continue a hoax, one that will surely end in the disgrace of  all who have backed an unwed black mother of three who strips for a living and either sells sex or gives it away, having at least four men's DNA in her body at the time she falsely claimed rape?  By placing the credibility of a black organization on the line, letting it ride or fall with the Stripper's Story, are NAACP leaders advancing the interests of those the organization was formed to advance?

Mr. Barber verbally maintained the NAACP's commitment to monitoring the case. He said the goal was to ensure "allegations of criminal conduct be conducted in a fair, meticulous, comprehensive, aggressive and thorough manner." Did Ms. Mangum have to swear out a complaint? If so, and if she lied, is that a crime?  In investigating "allegations of criminal conduct, what has the NAACP  determined, or urged the prosecution to consider, about criminal activity by the Stripper: Is she a prostitute? Does she use controlled substances? Did she on that night? Has she frequently been drunk, lewd, or disorderly in public? Was she drunk  that night? Isn't her credibility squarely in issue, placed there by her story? And  aren't these questions about her central to her credibility?

According to Mr. Barber: "The NAACP was there when African American men were falsely accused of sexual violence. We've also been there when black women and white women made allegations that were dismissed. The NAACP was there when African American men were falsely accused of sexual violence. We've also been there when black women and white women made allegations that were dismissed."

Apparently  the NAACP sees it as within its mission to support claims of rape by black women against white men and to reject such claims by white women against black men. Has it considered weighing the evidence before doing either? Maybe it should give that a try. Doing so might occasionally advance the interest of a white person, but surely the NAACP should be willing to accept the outcome compelled by the evidence rather than that produced by its public proclamations and private sessions with the prosecutors.  

The NAACP is materially different from a defense lawyer. It has not been hired here. It is not paid to take sides.  Its charter does not compel it to embrace hoaxes. A defense lawyer's job, in contrast, is to defend his or her client. It is to make the best possible use of the evidence. It is to call the prosecution to task when, as here, it steps out of bounds. It is to respond to those who, though uninformed or maliciously motivated, speak out, publicly, finding wrongdoing where none occurred. A defense lawyer does not surrender his First Amendment rights. To the contrary, his professional duties may require him to exercise  those rights, especially when the prosecutors or others, by playing the race card early and often, poison the process.

To advance the interests of its membership, the NAACP would be well advised to let the process work. Its continued interference can only leave it like Ms. Mangum --  disgraced. Or worse.

If the NAACP insists on being heard – and it obviously does – then let us hear what it has to say about the evidence:

1. Ms. Mangum is a stripper, photographed as she entered and exited the house, and inside, in an obviously impaired state.
2. Less than an hour after the incident occurred, the police found her barely conscious and incoherent in her colleague's car.
3. Tests confirmed that she had not taken a date-rape drug; the cause of her self-induced impairment has not been disclosed, but it is plain that it began before she arrived to ply her trade.
4. Ms. Mangum was unable to identify any of her victims until her third try, when a frustrated Mr. Nifong asked her to choose from pictures of only lacrosse players.
5. Each of he three victims unequivocally denied her accusations, then passed a lie detector test.
6. The prosecution has been unwilling to give Ms. Mangum a lie detector test.
7. Ms. Mangum claimed rape, then disclaimed it after the public learned that she wore (or bore) DNA from at least four men, none a Duke lacrosse player, all deposited during a period when she claimed celibacy.
8. Ms. Mangum said that Reade Seligmann raped and sexually assaulted her, then took it back after learning that he had iron-clad proof that he wasn't even there at the time . To accommodate that inconvenient fact, Ms. Mangum changed her story. She moved the timeline, then said that, though he did not touch her, he participated in the sexual assault and kidnapping with which he has been charged by being in the bathroom with her. 
9. Ms. Mangum said David Evans had a mustache, then took it back after learning he has never had one  She transformed it into a "five o'clock shadow" (this in the same revised statement in which she said she could not differentiate between a male sex organ and a broomstick).
10. Ms. Mangum said all each of her three victims ejaculated inside her, then took it back after learning that the only ejaculate in or on her was that of other men.
11. The stripper who accompanied Ms. Mangum said Ms. Mangum never complained of rape or assault, and that she had seen no violence, no assault, nothing other than a bawdy verbal exchange between drinking strippers and lacrosse players.

This is the stuff of which a claim for malicious prosecution is made. And one day, some court may become the first to accept a claim against those who through reckless or knowingly false public statements aid and abet a malicious prosecution. Perhaps the NAACP and those who join it in embracing the Stripper's Story should give that careful thought.

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.