WEBCommentary(tm) - Judging Duke Case Defense Strategy

Anonymous said: "The smartest legal strategy of all goes to Collin's attorney. By keeping Finnerty's whereabouts that night to himself, he never gave Nifong the timeline. You see, Mr. Nifong was counting on the defense to provide him the timeline for the bogus rape. Nifong is still looking for the timeline, just as he continues to search for the elusive lacrosse witnesses." Has "Bagdad Bob" moved to America, been hired as a publicist/apologist for Collin Finnerty's legal team and taken to posting at Friends of Duke University website?

Has "Bagdad Bob" moved to America, been hired as a publicist/apologist for Collin Finnerty's legal team and taken to posting at Friends of Duke University website?

Probably not. But, giving the "smartest legal strategy" award to Collin Finnerty's legal team is (a) amusing and (b) an affront to the legal teams of Collin's co-defendants, Reade Seligmann and David Evans, who have done better.

If I were guilty and could afford them, I'd be pleased to have Collin's legal team defend me. But if I were innocent, I'd want a legal team that defended me as though I were innocent and intent on being exonerated instead of guilty in fact and trying to be acquitted by blowing enough smoke to create reasonable doubt or excluding damning evidence for legal reasons having little or nothing to do with the realty of innocence or guilt.

I do not excuse any of the bad behavior of any member of the 2006 Duke Men's Lacrosse Team, whether it was a violation of law (examples: underage drinking or excess noise) or a violation of decency (examples: hiring strippers, a racist joke about "a fine cotton shirt" or a vile email that apparently was an attempt at humor).

But, it does not follow that any of the members of the 2006 Duke Men's Lacrosse Team kidnapped, raped or sexually assaulted anyone. At the end of June, Collin's father announced on NBC ("Today") and MSNBC ("The Abrams Report" of fond memory, but low ratings) that each of the Duke Three (Collin, Reade Seligmann and David Evans) had passed a polygraph test. If their accuser had passed a polygraph, I'd have a bit more respect for respect for Durham County, North Carolina District Attorney Michael B. Nifong (it's nearly impossible for me to have less), but Mr. Nifong did not want to have Duke lacrosse players polygraph tested and I doubt he had their accuser polygraph tested. (If he had, and she had passed, THAT would have been made known to the media and the world.)

I note that when a Kennedy (William Kennedy Smith) was accused of rape in Florida in 1991, his accuser passed two polygraph test and a voice stress analysis before he was charged (and I don't believe he took a polygraph test). Given the importance of polygraph testing as an investigative tool, it strikes me as highly suspicious that Mr. Nifong was uninterested and highly significant that the Duke Three went ahead anyway (and successfully).

Remember the June 26, 2006 issue of Newsweek? "DUKE: SHOULD THE CASE BE DROPPED?" appears at the top of the cover. The article inside makes it virtually certain that the answer is yes. Example: "THE PROSECUTOR INSISTS HIS RAPE CASE IS STRONG. ONE BIG PROBLEM: THE FACTS THUS FAR."

The article begins by reporting a choice that did the entire Duke lacrosse team proud (unlike the choice of "entertainment" for that infamous party last March): "The order had come, signed by a judge, requiring that the Duke lacrosse team give DNA samples. The prosecutor was trying to identify the three players who had allegedly raped an exotic dancer at the house rented by three of the team's co-captains on the night of March 13-14. All 47 players had gathered in a classroom near the lacrosse field to hear their lawyer, Bob Ekstrand, tell them what they needed to do. Ekstrand was about to tell the players that they could appeal the order as 'overbroad,' too sweeping in its scope, when the players got up and started heading for their cars to drive downtown to the police station. (The team's one black player was not required to go; the accuser, who is black, claimed her attackers were white.)"

Bravo to the white members of the team for refusing to litigate about whether they could be required to provide DNA samples!

Bravo to their black teammate for standing up to the pressure to pretend that at least some of his white teammates had kidnapped, raped or sexually assaulted anyone!

And bravo to Newsweek for highlighting the fact that innocent people sometimes reject well meant, but bad legal advice that would run up the legal bill AND suggest that the innocent have something to hide!

I agree that it is not in Collin's best interests to reveal ALL of the details of his alibi evidence. NOT because he has something to hide and needs to rely on legal legerdermain to avoid conviction. BECAUSE Mr. Nifong is a rogue prosecutor who has abused his power and must be expected to harass Collin's witnesses instead of to do what a prosecutor is supposed to do: be fair and objective and move to dismiss am indictment that should not have been sought.

That said, just as it does not follow that a team member who attended a lacrosse team party with strippers would kidnap, rape and sexually assault one of the strippers, it does not follow that a team member indicted for rape must remain silent instead of personally profess his innocence, or else he will convict himself. In appearing in public for that purpose, the indictee can demonstrate that he is not the monster he is being depicted as and need not provide detail (on advice of counsel).

I award the "smartest legal strategy" accolade to David Evans' legal team, for recognizing that the best thing for his defense would be for him to appear in public and profess not only his own innocence, but the innocence of Collin and Reade, and explain that the charges against all of them had resulted from "a fantastic lie."

An Anonymous poster at Friends of Duke University website (I don't know whether it is the same person or not) conceded that David's public appearance was effective, but tried to treat it as a fluke: "Dave Evans's statement to the press was the stuff of Hollywood legend -- as Bernie Grimm characterized it -- 'I'd put this guy on the witness stand every day of the week and twice on Sunday.' It's also exceedingly rare for anyone, particularly a young person under such tremendous strain, to be able to deliver such a statement without appearing terribly nervous or without making some misstatement, however slight, that will afford the Persecutor in this case an opportunity to weaken his testimony in court."

David was guilty of hiring the strippers, but he was NOT guilty of kidnapping, rape or sexual assault. He appeared to be innocent and indignant.

Collin and Reade likewise are not guilty of kidnapping, rape or sexual assault, and they were not responsible for hiring the strippers. David was an innocent man professing his innocence, not a thespian putting on a performance. Collin and Reade could have done the same sooner, and should have been encouraged and helped to do so instead of told to be quiet.

Reade's legal team has generally served him very well, however. "Anonymous" insisted that was fortuitous: "Reade's alibi evidence [was] initially inadvertently leaked by a lawyer not representing Reade and then of necessity defended by his own attorneys, who, given Nifong's behavior, would clearly have preferred that it not be made public at the time...."

Whether or not it was fortuitous or fully scripted, it was GREAT for all of the members of the lacrosse team, especially Reade. According to "Anonymous," Mr. Nifong attempted to "undermine Reade's alibi evidence" (legally) and "intimidate one of his chief witnesses (illegal, but done anyway)."

THAT WAS GOOD FOR THE DEFENSE, NOT BAD! Reade's alibi is bona fide, not bogus. Nifong can do his worst: he won't disprove it. And Nifong having the black taxi driver arrested on an old warrant demonstrated to those with eyes to see that he was a prosecutorial travesty.

"Then there is Mike Nifong, the Durham, N.C., district attorney who is prosecuting the case. In addition to the misconduct detailed in my April 29 column, he has shielded his evidence (if any) from public scrutiny while seeking to keep the rape charges hanging over the defendants by delaying any trial until next spring.

"Nifong and a certain Durham police officer should themselves be under criminal investigation, in my view, for what looks like possible intimidation of a disinterested defense witness, a cabbie who had been transporting one defendant at the time of the alleged rape."

Whether deliberate or inadvertent, the "leak" of Reade's alibi accelerated the self-destructive behavior of Mr. Nifong that will ultimately serve the defense very well. (His reign of terror will come to an end.)

I agree with "Anonymous" that Collin's conviction in D.C. was "preposterous." But I had expected it, mostly because Collin had not defended himself in the courtroom of public opinion and his presumption of innocence had been replaced with a presumption of guilt. Sure, the sworn testimony of his four defense witnesses to the incident and his character witnesses should have been more than enough to create reasonable doubt. But Collin had not personally addressed the heinous Durham charges against him, and it was announced during the D.C. trial that he would not be a witness. A defendant has a legal right not to testify, but that does not make a decision not to testify the right choice. Had Collin done what David Evans later did or even presented awesome alibi evidence like Reade did, perhaps (1) the plea deal would not have been voided or (2) Judge Bayly would not have been blind to the ample reasonable doubt raised at the trial and so suspicious that Collin was violating the curfew he had imposed upon Collin (which Collin did NOT violate).

The tribulations of Collin's nineteenth year are hard to believe: (1) last November he and two friends were involved in a dispute with a couple of older men, Collin was the one who was hit (in the back of the head) and Collin ended up convicted of simple assault for menacing (also known as throwing fake punches); (2) Collin and his two friends had agreed to a group plea deal (25 hours of community service each) that would have avoided a trial, but the deal was voided as to Collin because he was arrested in Durham at the instance of an accuser whose story was not confirmed and should not have been believed and the taking of the deal was treated as an admission of guilt (it really wasn't) in the courtroom of public opinion; (3) Duke University suspended Collin as a result of the unwarranted criminal prosecution against him, thereby giving it a totally unmerited credence; (4) Mr. Nifong turned out to be a political hack who treated Collin and his co-defendants as political pawns and was rewarded for it by enough voters who did not realize what he was doing to win the Democrat primary for Durham County District Attorney; (5) Collin was kept silent as part of a typical legal strategy in an atypical case; and (6) less than three weeks after Collin's parents went public on his behalf, Judge Kenneth Titus issued an unconstitutional gag order, sua sponte, to discourage Collin and any other potential witness from speaking out.

On an independence day, Bastille Day (July 14, 2006), an obviously concerned person anonymously posted this message to the family of Collin Finnerty on the Collin's DC Trial part of Friends of Duke University website (http://friendsofdukeuniversity.blogspot.com/2006/05/collins-dc-trial.html):

"To Collin's family: stop hiding him in the attic. IF he is innocent of all the charges let him hold his head high and face the courts and the cameras and the judges and proclaim to the world who he is. Time to grow up and face the charges like a man — even though you probably are guilty of nothing you need to jump off the speeding train or at least change tracks before they railroad you right into the BIG HOUSE. "

I never did find "Bagdad Bob" convincing, or believe that the innocent should be defended as though they are guilty (especially in a case attracting nationwide attention in which the erroneous beliefs that the defendant is a gang rapist and a racist can and should be quickly corrected, because merely being acquitted will not undo the damage wrongly done and eliminate the grave threat posed by erroneous belief that the defendant really was guilty).

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.