Smart Duke Case Defense Strategy: Level Playing Field; Inform People
At this point in time, it's a virtual certainty that the Duke Three (Collin Finnerty, Reade Seligmann and David Evans) are innocent of the kidnapping, rape and sexual assault charges leveled against them.
By now, it's about metaphysically certain that the Duke Three (Collin Finnerty, Reade Seligmann and David Evans) are innocent of the kidnapping, rape and sexual assault charges leveled against them (all three reportedly passed polygraph tests, for example) by their unfortunate, untrustworthy accuser, Crystal Gail Mangum (the ex-convict stripper), and pathetically (and politically) pursued by Durham County, North Carolina's version of Captain Ahab hell-bent on harpooning the great white whale (Moby Dick), Durham County, North Carolina District Attorney Michael Nifong.
Yes, I named the accuser as well as each of the accused. I believe that "the playing field" should be level, not tilted in favor of the accuser and the prosecution. If there are people out there with pertinent information about either the accuser or an accused, let them come forward. When William Kennedy Smith was charged with rape (after his accuser, Patricia Bowman, had passed TWO polygraph tests and a voice stress test), three women came forward to say that they had been sexually harassed by him. Fortunately for Willie, the judge excluded that evidence, and he was acquitted, presumably because the jury decided that the prosecution had not shown beyond a reasonable doubt that the sexual contact (which was not disputed) was not consensual. [Note: To date, other than Ms. Mangum, no female has come forward to accuse any of the Duke Three of disrespect, much less sexual harassment, much less kidnapping, rape and sexual assault, but we've learned plenty of disconcerting things about Ms. Mangum, despite efforts to conceal her identity.]
Amazingly, Friends of Duke University website, which supports the Duke Three in its way, has a site rule against the use of "the name of the lacrosse case accuser in...comments." The "rule" is described as "widely accepted" and apparently automatically "observe[d]... without any exception." But: "Providing a link to another source that includes the accuser's name is fine. The name has been published in so many other sources that it is difficult to entirely avoid it."
What nonsense! And what a way to "play the game" the way Crystal Gail Mangum, Mr. Nifong and their supporters want it to be played. The "rule" never should have been adopted and should be abolished immediately, because it presumes that Ms. Mangum is an innocent victim when the available evidence overwhelmingly suggests that she has victimized the Duke Three and her claim to have been kidnapped, raped and sexually assaulted is false (if not a deliberate falsehood). THAT presumption contravenes the important presumption of innocence to which the Duke Three are entitled. Pretending to shield Ms. Mangum's identity is an absurd affectation utterly inappropriate in the circumstances.
It's bad enough that the judge know presiding over the Duke case issued a gag order on July 17, 2006. (To their credit, the defense lawyers promptly challenged the gag order; to their discredit, they did not immediately decry it as unconstitutionally broad and un-Americanly intimidating.) Websites interested in the truth prevailing should not impede it with a ridiculous rule. We have bad courts and bad prosecutors to do that!
Rurh Sheehan of North Carolina's The News & Observer (wife of Harry Payne, Chairman, Employment Security Commission of North Carolina) initially pushed the story that Crystal Gail Mangum had been raped and was sickeningly slow to acknowledge that she had assumed too much. But, her column and blog over the last few months show truth triumphing and, to use Ms. Sheehan's words, District Attorney Nifong's "world...slowly shrinking."
Ms. Sheehan's blog is a treasure trove of pertinent information, thoughtful observations and interesting predictions. (Unfortunately, the bulk of the thoughtfulness came from Ms. Sheehan's critics.)
To be fair, Ms. Sheehan's own horrific personal experience (which she deserves admiration and respect for disclosing) made her susceptible to believing Ms. Mangum's gang rape tale.
Unfortunately for just about everyone, Ms. Sheehan quickly took out her frustration on the Duke Three.
Yet, again to her credit, Ms. Sheehan acknowledged no later than April 3, 2006 that she had "plenty of critics" and quoted some articulate ones:
"I'm looking forward to your investigation of the arrest records of some Durham strippers -- I think you'll find a little more than carrying an open container of beer or peeing in public. Your bias is astonishing and does not serve your paper well -- up until now I actually thought there was a dedication to reporting the facts.
"If the purpose your article is not simply to vilify the lacrosse team -- none of whom have been charged in this sensational rape case and all of whom swear their innocence -- please have the decency to research and publish the arrest records of the Duke football, basketball, and baseball teams as well as the student body in general.
"Actively working to poison any future jury pool is a consideration every journalist with a shred of ethics should consider."
And:
"Lady, and I am very generous (sic) in that description. it is usual, at least outside of the Raleigh-Durham area to assume that a person is innocent until proven guilty. Not in the R_D, area where the News and Observer seems to base its stories on the left wing adage of guilty if you are not a member of a group favored or courted by the far left. I have not seen one iota of evidence quoted in any of the papers that would lead an unbiased observer to believe that there is anything happening,or has happened in this instance except an over reaching public prosecutor who has no scruples,honesty and is willing to sacrifice(sic) any person or group if it will help him advance his political fortunes. The far left crazies are always willing and thrilled to attack anybody who doesn't fit their assumption of 'politically correct' and these kids didn't meet their criteria. there will be a lot of embarrassed folks when the facts show that the kids were set up and used to advance a prosecutor's career and to be targets or [political] correctness. This is pitiful but is not unexpected of the N&O"
On April 4, 2006, Ms. Sheehan posted this moving letter from a mother of the one of the Duke lacrosse players and acknowledged her "excellent point about the dangers of painting with a broad brush":
"I'm sure you are aware of the cruelty and profound harm of discrimination against groups of people. My son is a student-athlete on the Duke lacrosse team. He is a young man honored for his integrity, academics and sportsmanship. He has worked hard since he was five years old to excel in a sport he loves. It is very difficult to put that much time into a sport and maintain good grades and an extensive record of community service. Every boy on this team had received similar honors or they would not have been recruited and then accepted into Duke University. If you are going to portray these student-athletes as 'out of control,' 'vile' characters because of misdemeanor records, you should delve into the arrest records of all Duke athletes and of all Duke students. You should report how many noise violations, etc., non lacrosse players have had in the same neighborhood.
"You are discriminating against one group of people, not because of fact, but because of innuendo. You are comparing them to fictional characters in a novel and are writing harmful allegations about boys whom you know nothing about.
"These boys have faces and families. They are individuals who pride themselves on their achievements on and off the field. To lump them as one and to grossly characterize them without any proof and fact is slander. You should be 'dumped.'"
Amazingly, that mother's letter immediately provoked a comment that the Durham authorities were discriminating IN FAVOR OF the Duke lacrosse players:
"There would be no reason to portray the lacrosse team in any way negatively, if those who were not involved in the incident, would simply tell what they know of it, rather than (as it seems) covering up for their teammates.
"The article in today's paper about the NCCU rally to support the victims of the incident, raises a good point: Had an NCCU team gang-raped a couple of Duke girls, they would already be in jail.
"Money, race and privilege are the key components in this outrageous case - the fact that the investigation has not come to any conclusions yet, more than a week out from the incident, shows that power and influence is the thing keeping investigators away from the brutes who committed this inhuman behavior."
Being brainwashed must be horrible.
"John" rebutted immediately:
"Someone, ANYONE show me another example where 3 men have committed a crime and 43 other men were implicated and convicted in the Media.
"4 Mississippi State Football players at a Campus party beat up a Cop pretty bad and tried to cover it up. It hardly received any press. Most of the team was at the Party, but somehow they were not all treated like criminals - Guilt by association. Is anyone Surprised?
"The alleged victim at Duke identified 3 men. She identified the 3 alleged assailants, so WHY WERE THE OTHER 43 MEN (including 16 white players that didn't even attend the party or enter that premises on that day) subjected to DNA tests and public scrutiny absent Charges?
"If this had to be done to 46 black players, HBO would be doing a special on it. The DURHAM 46 starring Denzel Washington and Danny Glover as the coach.
"The Midnight vigils would be supporting the team. The other 43 players would be seen as courageous for standing up to a Racist DA and a bigoted system. They would be playing games and wearing a 43 patch on their Jerseys. The Press treatment of Nifong would make Kenneth Starr wince."Sad, but true.
"For the record, if the 3 guys are Guilty, they should rot in Jail - throw away the key. They are not fit for our society, or any other."
"John" is right. And, happily, it turns out that the Duke Three are innocent, leaving jail space for their false accuser and persecutor.
The next day, "John" brightly and rightly railed against hypocrisy:
"To use some of your terms .. Now be progressive and open-minded.
"Isn't it S3XiST to publish the woman's version of the account ANONYMOUSLY and then participate by adding sympathetic sub-titles like 'A HURT THAT WON'T GO AWAY.' To view her as a victim immediately, when if the team members have been falsely accused, they are definitely the victims. We all know that if this was a male victim his face would be plastered on the front page. Remember John Bobbit, the media had no problem whatsoever reporting his name and broadcasting his picture.
"Isn't it R@cist that the media refuses to print this woman's CRIMINAL record or challenge her credibility, when, in the Kobe Bryant case - the woman's past, her credibility, and her ulterior motives were immediately examined in detail in the print and broadcast medium.
"Isn't it PRIVILEGED for the alleged victim to have media outlets write persuasive pieces supporting her and her account and have candlelight vigils supporting her at two local Universities. And to have article after article reporting on TEAM behavior, in effect, labeling all the boys as the same, yet the media uses this woman's self-applied label for her profession - exotic dancer - when stripper or Adult Entertainer may be more accurate."
On April 5, 2005, "Kevin O." (an African-American) smelled a rat and posted this thought-provoking message:"I listened to the audio of the 911 calls that were made here:
the person who made the call at 12:53 to report being yelled at with racial slurs, and
the person who can be heard in the background of the 1:22 call identifying herself as 'Kim',
ARE THE SAME PERSON.
"Something doesn't smell right. As an African-American man, I'm sorry to have to say this."
On April 11, 2006 , with negative DNA results in, "Jason" asked Ms. Sheehan to apologize (without using Ms. Mangum's name):
"I've enjoyed reading your columns over the years, but have been saddened recently by the course of events in Durham and at Duke regarding the allegations of rape and sexual assault.
"It appears, based on the latest news reports, that the most critical potential evidence to justify formal charges in the case, DNA tests, have come back negative. This shouldn't be a surprise to anyone, quite frankly . . . I do believe that our justice system asserts that people should be 'presumed innocent until proven guilty.' However, many people in the general public, fueled by rampant media speculation (including yourself and your newspaper) have taken these boys to trial in the court of public opinion and found them GUILTY! Guilty of rape. Guilty of sexual assault.
"Who now is going to stand up for these boys, whose image and reputations have been severely tarnished? Who is going to write columns about the dangers of people making FALSE ACCUSATIONS, and the harm that can result? Who is going to take the high road and APOLOGIZE to all of the kids that were wrongfully accused of such alleged crimes? Are you?"
On April 13, 2006, Ms. Sheehan wrote of "the swell of public response that has drawn comparisons between the Duke lacrosse mess and the Tawana Brawley case of the 1980s" and elicited some devastating criticism that she publicized. Example:
"I found your April 13th article, 'If lying, take her to task' very moving. Your identification with other rape victims is understandable and your concern for rape victims is entirely justified. The district attorney, Mike Nifong, however, and the media (and I include your many articles) have contributed enormously to the volatile atmosphere that exists in Durham and both of you have done a grave injustice to all involved.
"Michael Nifong's unorthodox declaration from the steps of the court house that he is convinced a rape occurred doomed a fair and accurate investigation. His proper response would have been to declare that an investigation was underway and let the facts speak for the case. Mr. Nifong has painted himself into the proverbial corner with no way out. His performance on the North Caroline Central University panel with the statement, 'As long as I am on this case, this case will not go away,' only solidifies the impression that his political future and the future of this case are tied together. Are we to believe that justice is only served under his leadership?
"While much has been written about protecting the alleged victim little has been done to protect the accused. You have worked diligently in articles like 'Lacrosse team out of control' and 'Teams Silence is Sickening' to create an impression that has already 'sullied' dozens of players and their families, not 'would have sullied.' As a columnist, you must bear a huge responsibility in contributing to the presumption of guilt the accused have experienced. In your article's scenario, with the alleged victims discredited tale, you will also be culpable for the shame and disgrace that has been inflicted on the team and their families. You, also, must be taken to task as you were a willing player in this rush to judgment."
On April 23, 2006, Joan Foster sent Ms. Sheehan this compelling comment that would have moved a less tortured soul:
"I suppose our 'perspective' is always set in the framework of our past. Like it or not, your own rape and fear of disbelief has colored your reaction to this case. As for me, I did not march, and argue, write, debate, and pray for a color-blind REAL community of people of every color, to see newspapers like yours simply apply the SAME racist tactics....in reverse! We do not know yet if a rape took place, but you have lynched these boys and their families in the press. You have published their photos before there was any identification by the accuser: you have written a sympathetic portrayal of the accuser, protected her name and police record,...while you have published every negative piece of information you could glean on the Lacrosse team. You have shaped headlines, omitted to run stories favorable to the boys, used adjectives like 'swaggering' (boys) vs. 'soft-spoken' (accuser. ) It's BIAS, its RACIAL stereotyping of 'rich, white privileged' kids. It was wrong against people of color and it's wrong NOW. I want to believe your paper has no 'agenda.' How then can you justify your shockingly one-sided coverage? Had I the time, I could dissect the words you choose, the headlines you craft,...which some civil attorney just might do some day. It really is stunningly evident. Do you believe you are protecting the powerless from the powerful by assuming her story to be true before the evidence has even been brought to a court of law. How is that different from the generations of black men convicted of rape on just a white woman's word? Did you condone that? Why is it acceptable in reverse? White men rape: black men rape. Rich men rape: poor men rape. White girls lie: black girls lie. The color of our skin or the content of our pocketbook makes no one slam-dunk guilty or innocent. You have 'prejudged' these boys guilty. (is that not the root word for "prejudice?") We do not yet know if a rape has taken place: but , as I said, led by your newspaper, a media lynching certainly has."
Well said. Ms. Foster!
On April 6, 2006, "Jack" had dare to prognosticate on Ms. Sheehan's blog:
"I predict:
"Test results do not indicate that semen/hair/skin taken from complainant matches DNA from any of lacrosse team members.
"Likely scenario:
"DA Nifong announces there will be no charges filed.
"Less likely scenario:
Nifong brings charges against one/two/three team members. Trial ensues.
In addition to testimony of complainant, state offers evidence:
That several of complainant’s personal possessions were left at the crime site
(From medical testimony) that complainant was involved in rough sex on night in question
Of email threatening death of strippers
In addition to testimony of defendants, Defense counsel offers evidence:
That first 911 caller had definite relationship with complainant.
That complainant had recently engaged in prostitution services through her escort service (to the consternation of certain Durham citizens)
That there is no photographic or medical evidence that complainant was beaten, kicked, or strangled.
Of exculpatory emails and oral statements made by defendants and other team members
"Jury hangs."
"Jack" hopefully, but erroneously, assumed that Mr. Nifong is a professional prosecutor who would act in a fair and impartial way and not deliberately pursue a bogus case that could not be proven beyond a reasonable doubt instead of an opportunistic political hack and an unprincipled persecutor who saw his opportunity and took it.
Obviously, the first prediction--no indictment--did not come true. The second prediction--a hung jury--may come true, however, if the Duke Three do not prevail in the courtroom of public opinion and (1) Mr. Nifong is re-elected, (2) Ms. Mangum testifies and (3) at least one juror chooses to disregard the evidence, disobey the jury instructions and deny the Duke Three acquittal.
Given the unprofessional, un-American, unconscionable way some of the Durham police and Mr. Nifong have pursued the case, the defense would do better to try to carry the day in the courtroom of public opinion than to play hide the ball with all of their evidence of innocence.
The powers that be in Durham obviously are loathe to have their District Attorney (and themselves) exposed, so it should not have come as a surprise that on July 17, 2006 a court order was issued, purportedly on the court's own initiative, not only to impose publicity restraints on the lawyers (by then, Mr. Nifong wanted a good excuse NOT to talk about the case), but also to stop "any witnesses...from communicating with the news media concerning the [case] action except as specifically permitted by the provisions of Rule 3.6 of the North Carolina Revised Rules of Professional Conduct," upon penalty of being held in contempt of court and perhaps being disqualified as a witness.
That's a judge's way to gag the defense witnesses (including the defendants). Add Judge Kenneth Ttitus to the list of officials who should not be permitted to participate in the case.
After Mr. Nifong's initially successful salvos in the public arena, Mr. Nifong came to crave quiet and Ms. Sheehan, perhaps in an effort to at least appear a bit fair and balanced, deftly mocked him in her April 26, 2006 column:
"Personally, I found it amazing that Durham District Attorney Mike Nifong could possibly complain about not being able to go anywhere without being recognized in his community. Um, he's running for office, and last time I checked, no one is forced to be interviewed on MSNBC. Love that quote from the quote-machine himself (suddenly circumspect): Where do I go to get my anonymity back?
"There are a lot of people to feel sorry for in this mess. Nifong does not top the list."
In the same column, Ms. Sheehan quoted a reader on the media's double standard--"If the escort had been a white woman, going over to an apartment rented by some black basketball players at North Carolina Central University and the EXACT SAME THINGS had occurred, would there be the same media frenzy?? You know the answer as well as i do and that answer is NO, actually not No but HELL NO. That would have been a quiet story about a potential gang rape and off the pages and the TV's the next day"--and another reader exuding faith in the rape tale (the phrase "the victim in the Duke rape incident" gave it away immediately) and outrage at Ms. Sheehan's enlightenment:
"Your column tonight did not show one ounce of compassion or caring toward the victim in the Duke rape incident. The medical staff that treated the woman..who is 27 and raising a child while working and putting herself through school...found evidence of both vaginal and anal rape.
"It IS wrong to claim rape dishonestly and I have a relative that was accused by an 'exotic dancer' also. I, too, was raped when I was in my twenties and didn't tell anyone for years and years.
"Obviously no one except the victim knows who raped her and from all reports she has only identified one person. With three sets of DNA they couldn't be separated and confirmed...but rape cases were handled and prosecuted long before the introduction of DNA evidence.
"This woman is so afraid she has left town, now there is something for the folks at Duke to really be proud of. I don't think it's very fair to compare her to T Brawley at all and I think we are now victimizing the victim.
"This column was not enjoyable to me at all and I am very sorry you felt compelled to write it."
This deluded reader apparently inspired this devastating, fact-filled rebuttal by "Ryan," posted as a comment on Ms. Sheehan's blog on May 12, 2006:
"All these boys did was [hire] a couple of strippers who ripped them off, lied about [being] racial slurred (She wasn't just driving by, she started the argument with the boys), and lied about a rape occurring. The stripper has serious character flaws judging by her criminal past: • Stripper made a false claim of rape by three boys in 1996. • Stripper made a false claim of kidnapping in 1998 • Stripper charged with larceny, auto theft, and trying to kill a police officer in 2002 The stripper’s account of the night has serious integrity issues: • First she claimed 20 boys raped her, then she narrowed it down to 3 in a bathroom...absolutely and completely devoid of any evidence of a rape. Where is her DNA? Urine, blood, vaginal fluid, saliva, or tears? Many people’s DNA were found under her nails but none from the innocent lacrosse boys. She lied about losing her fake finger nails in a desperate struggle in the small enclosed bathroom, but pictures show that she removed her nails before inadequately performing her routine. No scratches were found on any of the innocent lacrosse boys’ bodies. The 2 innocent boys she “eeny meeny miney moed” to be her rapists weren’t even at the party the time she claimed the rape occurred. She claims that she’s 100% sure, but she told her father that she’s not sure. She took drugs before coming to the house, something illegal. • The 2nd stripper stated that she doubted that a rape occurred, but changed her story after given a deal by DA Nifong, then contact a PR firm to 'spin this scandal to her advantage.' The stripper obviously lied, and she’s putting these innocent boys and families through hell. She deserves to be in prison for the rest of her pathetic life. The unscrupulous DA Mike Nifong refused to see evidence that proves the boys innocent District Attorney revokes all deferred plea deals with lacrosse players because they won’t jump on his band wagon that a rape occurred. District Attorney doesn’t revoke probation of the second stripper after she changes her story from no rape occurred to a rape occurred. District Attorney tries to intimidate the cab driver who drove the boys during the time the stripper claims a rape occurred. Are the actions of the DA’s office more 'abuse of power' or 'corruption'?"
On May 18, 2006, with the Due Two having become the Duke Three, Ms. Sheehan posted two superb letters by J. Patrick of North Carolina:
"This piece is hard to read for those that know the N&O did not reserve judgement in this case. The jumped in with both feet (and hands) to crush the Duke players. One has to look no further than the titles of Mrs. Sheehan's earlier editorials on the Knuckle dragging Duke neanderthals. The early slanted coverage of this and the dearth of news articles in the N&O questioning Nifong's actions, tactics, and motives of late - reveals much about the N&O and its journalists and writers.
"New's organizations make decisions every day. The decisions purposefully focus on one story and downplay another. The alleged victim's criminal record was only printed in the N&O after it was broadcast Nationally and it was buried at the bottom of an article that betrayed the substance and import of the article itself.
"The News & Observer overplayed its hand initially in this case and they went for the throat of the Duke Lacrosse players. The permissive N&O suddenly was outraged at college aged students drinking at OFF-Campus parties. These men had abused their meal cards, at a PRIVATE school, allegedly. Someone had to be held responsible for the Noise Ordinances they violated! Outrage and animosity reverbated towards the Duke players with every article printed.
"Now, I'm afraid the News & Observer is so entrenched in defending their position that these players were 'out of control' that they can not and will not cover the outrageous behavior of a District Attorney, mandated to seek the truth,
"in any meaningful way. Sure, an occasional article will monotonously report that Nifong detractors are questioning him; however, you will not find the writing that approaches the outrage expelled at the players earlier or the sympathy that jumped from the pages in the articles supporting the victim or detailing her 'ordeal.'
"I expect now we will hear the N&O editors and journalists at the N&O tell us that nothing has been heard in court yet and we need to allow the process to proceed in court - in front of a Judge.
"Read the first FOUR weeks of coverage in the N&O on this subject and I challenge someone to produce one article that says we really shouldn't judge and really only court testimony is important - nothing else really matters.
"It seems the recent coverage of the case in the NATIONAL media has forced to N&O to, instead of reporting, reverberating, and editorializing against the unprecedented actions of a Powerful District Attorney, to rather - advise us to be patient, distrustful of the information we're hearing, and keep an open mind. Yes, advice the N&O and its staff should have heeded in March and April on this same case."
And:
"The News & Observer focused on the Duke Player's behavior to an inordinant extent in the first month of reporting. Ted Vaden even wrote that N&O Editor, Melanie Sill takes the stance that [there] are two scandals at Duke. The Team's drinking (off-campus) drinking and the Gang-rape accusation.
"So, while the N&O was acting with righteous indignation at the team's minor indiscetions that happen at every college in the country - the stripper making gang-rape accusations for the second time was also a student attending another local University - NCCU. The accuser - known as Mary Poppins to N&O readers - has the following in her background: the woman was charged with felonious assault with a deadly weapon [the stolen taxi] on a government officer, felonious larceny and felonious possession of a stolen vehicle, felonious speeding to elude arrest, driving while impaired, driving with a revoked license, driving while left of center, ignoring an officer's blue lights and siren, reckless driving, driving the wrong way on a dual-lane highway, having an open alcoholic beverage container in the car, two counts of damaging personal property and resisting a public officer.
"Let's see - Drinking at off-campus Frat parties - or Felony Car-Jacking and trying to run over an officer of the law after taking the police on dangerous high speed chase across two counties while driving on a revoked license - and this really sticks in my craw - 'an open alcoholic beverage in the car.'
"We have to believe the N&O didn't know about the open container in the vehicle or I'm confident they would've trashed the accuser like they trashed the lacrosse players.
"Aren't you?"
The next date, Ms. Sheehan posted a comment from "truth" that reflected hatred, willful blindness and blind vengeance:
"These Duke boys are GUILTY! But the way the media is portraying this case they will be said to be 'innocent'. I remember the Michael Jackson scam/case and the O.J. Simpson scam/ case and there is a BIG difference. The media gave no investigation of 'innocent until proven guilty' before the trials, but here with rich white boys accused of raping a black woman everything is by the book.
"Of course they will get off because in the history of the USA NO white man has ever been convicted of raping a black woman and yes millions of rapes they have committed!
"You can not talk about anything in America that white racism is not a vested hand maiden!
"Durham like this country has never been united. Race is the case. Yes O.J. was innocent, just as Michael Jackson was innocent. Yet till this day whites as well as the racist media still libel and slander them both. If they were black and the woman was white this thing would be as well as your blog would be guilty before the trial.
"Two wrongs don't make it right, but is blam sure makes it even!"If Mr. Nifong can get someone who "thinks" like that on the jury, that jury will be hung. Better to have the case dismissed than a hug jury. And that can't happen until the Dike Three are exonerated in the courtroom of public opinion.
Ewol Smith worried and commented about black racism:
"Sure, this case has an element of racism--black on white racism. And the N&O has covered this event with a dose of bias, as well. The alleged victim is an 'honor' student; the Duke boys are 'drinkers.' Perhaps you are not aware of some objective journalism from Kathleen Parker of the Orlando Sentinel.
This group, she says, has a 100 percent college grad rate. Sixty percent have a 3.0 GPA or above. During the past four years, 80 percent have made a national honor roll. Members. . .volunteer at community agencies. Who are they? The Duke Lacrosse Team. Why can you bring forth facts like these in the interest of objective journalism? Because these facts do not fit your agenda of punishing white males--'descendant as they are of the imperialistic, colonizing, native-raping patriarchy, who are the new culturally approved targets of the lynch mob'? You should THINK about the slanted journalism you provide!"
And a John likewise was outraged by justice perverted:
"Does anyone believe that the N&O will condemn the comments in court that amount to COMMUNICATING THREATS. The comments of 'Dead Man Walking' and 'Rapist' to a 19 year old that has NOT stood trial yet? Is this how our justice system is supposed to operate - intimidation and threats in the Court room? The N&O would be having their own Midnight vigil if a black defendant had been treated like this in court with all the rules that Nifong has chose to break in the persecution of these players. But, the Defendant is WHITE, so it's another day at the office for the N&O. Want to go to Lunch early?
"The N&O mentions the Peterson Race-Baiter as making suggestions. Funny the reports on the Radio and in some of the National Press said she was YELLING at David Evans and his family.
"The Double Standard and outright bias in the coverage of the case is simply amazing.
"Note to Ms. Sheehan: Our system does not punish groups of people for the acts of one. We don't have GROUP justice. I know - but it didn't fit with your vilification of the players. You're really reaching now."
Meanwhile, "Ellen" worked on enlightening Ms. Sheehan:
"You divulged a very personal past experience to justify your aligning your self with the accuser, when you did not have all of the facts regarding this case. As the facts continue to come out I hope you as feel betrayed as I do. Not every accusation regarding rape is true, even though it is unconscionable to me someone would level an allegation so horrific for personal gain, whether it be to save ones own behind or for financial gain. It is just something I do not believe you would ever do, nor would I. I respect your sense of empathy but hope you have learned an important lesson, you owe it to yourself and your readers to think clearly and fairly before acting . You are an adult now with a responsibility to society.
"What if your son were falsely accused? Can you try to empathize with that? It would change his life forever."
On June 22, 2006, Joan Foster presented Ms. Sheehan with the stark choice:
"Either way this story turns, Ruth, we are scraping the bottom of human depravity here. Something is obscenely rotten in Durham. Let's admit it, we don't KNOW yet. But here are our sorry choices.
"Either three young men viciously gang-raped a young woman and their 46 teammates are so morally deficient that for MONTHS they continue to offer these rapists cover ....or....
"An appointed district attorney in a tough race to keep his job pursued a bogus case for his own political agenda. And his colleagues in the Durham PD... and D.A.'s office ...and City Hall are so morally deficient that for months THEY continue to offer HIM cover.
"That's the choice."
It's like this:
"Because as you once said , Ruth.... ' We know you know.' There is group cover-up, a 'pack mentality' as the N&O called it, here in this story....either way.
"Nifong invited America into his parlor as he spun this terrible tale....night after night. We're all here now....the media, the interest groups, the talking heads, the blogs. Every word will be examined, every statement parsed. Every evening, there are web discussion groups , where lawyers, and SANE nurses, and the occasional nut ...dissect every move, every word, every motion filed for intellectual sport. We are here in the parlor, Mr. Nifong, and this close up, we can see every wart on your face. This case better be real, real pretty. The facts compelling and clear. 'Honey, you can't leave' this party or this parlor., Mr. Nifong...till we know ALL you know.
"If in time we should learn, the dancer gave multiple versions of her story that night, and Mr. Nifong was permitted to choose the one that worked for his campaign...we'll know some stood silent.
"If in time we should learn, that it took five or six line-ups to get Nifong his identifications...we'll know he had help.
"If in time we should learn, that having an old warrant served on the taxi driver by the DETECTIVES on this case was in any way unusual, we'll know we have witness intimidation.
"If in time we should learn, the City Manager lied to the media when he vilified the Duke report that claimed 'multiple stories', we'll know we need to investigate a wider web.
"We know now Nifong appeared to give Kim a sweet deal when she upgraded her story. We know now many of his early media statements are reported not to match sworn court filings. Many of us just DIDN'T know, this was what often passes for justice in Durham, in America. We know now we were naive. Dumb.
"A clean strong case against these three boys should not seemingly NEED dirty tactics. When the truth is on your side, no 'deals', no lies are needed to bolster it.
"The accuser and the accused have all been savaged by this case. Many people who invested their belief in this story early.on..are now branded by it. Like it or not, as the story unfolds, ..they are wearing the teeshirt that says , 'I believe Nifong.' You were one of those , Ruth, but the numbers are legion. You now seem to have changed into something more comfortable, but others are still sporting that shirt around town. Time will tell if the fashion fades.
"That said, the consequences of this story on everything from rape shield laws to local and national reputations could be huge.
"If in time we should learn, that ALL this was ...was a tale of a small town D.A. , in a race to keep a job he'd wanted for 23 years and losing to an old nemesis. ... who saw in a shaky story from a distraught intoxicated woman, a winning campaign strategy for himself........If that's all it was, there is no public humiliation , no condemnation ..no punishment severe enough for Mr. Nifong. None."
Amen!
The same day, "Ellen" was not cutting any slack for Ms. Sheehan dawdling along the road to the truth: "I am also of the thought that you have missed the boat. Big time.
"You were blinded by your own truly horrible experience and your homer mentality. Wouldn't want to bite the hand that might one day feed you Ruth.
"But isn't your job to be professional?
"Appeal after appeal to you to at least see both sides and consider the facts have gone unheard. It is only now when the tide has unmistakably turned and you do not want to left on shore alone, that you weakly see through the fog of your righteousness and report some of the truth.
"We should all rejoice in the refrain, Better late than never.
"You have personally done so much damage, don't count on me to celebrate your redemption."Daryl Baker was much harsher:
"Where the hell have you been all this time, when people (me) were screaming at the tops of our lungs that this was another Tawana Brawley, the evidence smelled to high heaven, and you wrote and wrote and wrote, all in support of the venue of prosecutorial advocacy. This is the very first piece you've written that even intimates there was real harm done. Now you write: 'you had to figure he had incontrovertible evidence. Apparently, he didn't.
...and you call yourself a journalist. The N&O was on a witch hunt, and you led the wood gatherers and flame carriers, you led the chants, and you listened as Nifong met with the Black Panther Party. You listened as they yelled 'Dead Man Walking' in the courtroom. You should not be allowed to feel shame, that's too easy for the evil you have brought to the community. You fomented race war and mass hatred...."
Ms. Sheehan repositioned.
On August 1, 2006, Ms. Sheehan's blog posted a poster mocking the shocking 88 Duke 88 Professors ad and this impassioned plea by Joan Foster for atonement and assistance:
"The Newsweek report detailing Nifong's misrepresentations brought no editorial condemnation. The answer to every one of our questions is no, no ,and no again. To answer these questions might bring down Nifong's house of cards. IT WILL NOT BE DONE. Someone is owed a trial. The N&O must help Nifong deliver. Truth and justice are secondary to that debt.
"I wonder how far they will let this go? What besides a trial is owed here? The destruction of these boys and their families? Is that what is demanded and must be delivered?
"Is that your goal, Ruth, Melanie,and the silent sentinels of the Editorial page? After all this paper has done to craft the image of the 'swaggering' boys of the vigilante poster, can you look at your own children and ....JUST FOR ONE MOMENT... see them caught up in this vortex of fate and at the mercy of people..... like YOU ! Would any high priced lawyer or house with a big lawn comfort you... as you were buffeted by voices screaming to have all of society's wrongs RIGHTED by the sacrifice of YOUR son??
"Think of the enormity of what you are doing . Please. Because old debts require that you assist in the gutting of three families."
The next day (August 4, 2006), Ms. Sheehan mocked Mr. Nifong (whose alternately bombastic, bullying and boorish behavior makes him an easy target):
"Poor Mike Nifong. His world is slowly shrinking. In an email message to Durham's Animal Control Advisory Committee, he said he is considering stepping down from the board because some of the other members signed the petition supporting Lewis Cheek.
"Did he read every one of those 10,000 names?
"Where'd he find the time? I thought he was supposed to be prosecuting the biggest case of his career.
"And what does he have in store for the other thousands on the petition sheets? Maybe a database to use in court.... 'NO plea for you! You signed the Cheek petition!'
"Yikes."
Then Ms. Sheehan went on vacation.
It's Mr. Nifong who needs a vacation. A permanent one.
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.
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