Prediction: The Duke Three (Collin Finnerty, Reade Seligmann and David Evans) eventually will be exonerated as to the kidnapping, rape and sexual assault charges pending against them.
The Duke Three (Collin Finnerty, Reade Seligmann and David Evans) eventually will be exonerated as to the kidnapping, rape and sexual assault charges pending against them, despite:
(1) The reluctance of their accuser, Crystal Gail Mangum, to recant, and thereby risk the wrath of the reckless, rotten prosecutor, Michael B. Nifong;
(2) The initial (and unethical) public campaign of their prosecutor to convince people (including potential jurors) that there had been a gang rape;
(3) Their prosecutor's pathetic, but effective, pandering to black voters in Durham County, North Carolina, despite his legal duty to be a fair and impartial minister of justice open to evidence of innocence as well as evidence of guilt; and subsequent upset victory in the May 2, 2006 Democrat primary;
(4) The outrageous gag order issued against all potential witnesses (including the Duke Three) on July 17, 2006;
(5) Democrat solidarity;
(6) The home town effect;
(7) Lewis Cheek's decision not to campaign against the prosecutor, even though his name remains on the ballot as the ABN (Anybody But Nifong) candidate;
(8) Judges having set aside to date Reade Seligmann's meritorious motion to remove the prosecutor from the case;
(9) The initial media (especially local media) support for the prosecutor;
(10) Soap opera star Susan Lucci not coming forward before the gag order as a character witness for Colin Finnerty in the courtroom of public opinion to counter the misinformation put out there against him BEFORE the gag order became effective (Collin's Lebanese Christian neighbor gave him a ringing character endorsement last April--he babysat my daughter and I'd trust him to do it again, but he's not as well known as Ms. Lucci);
(11) The defense strategy of selectively leaking information from the prosecutor's document production instead of making it all public promptly, thereby making the "cherry-picking the evidence" charge plausible;
(12) The failure of Collin and Reade to do at all what David did so well: personally assure the public that they are innocent (without providing detail that would have induced heart attacks and strokes in timid lawyers) (a much greater problem for Collin, who had an unwarranted and unrelated simple assault charge to deal with too and kept his alibi concealed as part of a legal strategy, than Reade, who detailed his to let the world know he could not have done what he had been charged with doing;
(13) The presumption of regularity automatically accorded to the irregular actions of the prosecution;
(14) The insidious insinuation of guilt imbedded in Duke University's suspension of Collin and Reade (fortunately for David, he graduated BEFORE the prosecutor got around to having him indicted in order to have a trio of rich, white Yankee scapegoats);
(15) The favoritism accorded by the prosecutor to the other stripper (Kim Roberts), another ex-convict, who changed her story to one less damaging to the prosecution;
(16) The prosecution's threat to indict more Duke lacrosse players if they did not come forward to testify the way the prosecution wanted;
(17) The prosecution's harassment of Reade's black taxi driver alibi witness for telling the truth;
(18) The prosecution's carefully crafted identification procedure, in which there was no "wrong" answer;
(19) Media reluctance to level the field in a case in which it is disputed that there WAS a rape to identify the accuser as well as the accuseds; and
(20) Commentators like Georgia Goslee, who have played fast and loose with the facts in trying to save the accused and the prosecutor from much deserved public scorn that can be deferred, but not indefinitely.
As more and more people have come to realize, the so-called Duke rape case is the Duke rape hoax, or "Tawana Brawley II."
On July 7, 2006, William Anderson, Ph. D., an economics teacher at Frostburg State University in Maryland, in an article titled "Tawana Brawley II" http://www.lewrockwell.com/anderson/anderson134.htm), compared the Duke case to the Tawana Brawley case and drew these five conclusions:
1. "Brawley made a tactical error in accusing police officers and a prosecutor of rape [because] the state protects its own. Had Brawley instead accused a local insurance agent or an ordinary community member of said crimes, one wonders if that unlucky person would have been tried, falsely convicted, and still be serving a series of life terms in New York state prison."
2. "[T]he national press – and especially the New York Times – is all-too-eager to be taken in by politically-correct hoaxes. It took the Times, which put some of its top reporters on the story when it first broke, a long time to come around to admitting that the story could be false, even though it became quickly obvious that there were real gaps in Brawley’s tale."
3. "[T]here are a number of groups in this country that have a vested interest in promoting lies. The false prosecution of these athletes – and the charges are transparently false – would not have been possible but for the feminists on the Duke University faculty, the NAACP of Durham, and the mavens of political correctness that dominate the staffs of publications like the New York Times, Newsweek, Time, and the various broadcast news outlets. That some broadcast outfits like Fox News, along with Newsweek have turned skeptical does not mitigate the fact that it was the news media that gave Nifong an uncritical platform to tell what now have been exposed as lies."
4. "[T]he media never tire of hearing lies from Al Sharpton and his allies. Sharpton’s criminal – yes, criminal – role in the Brawley case should have disqualified him from ever being quoted again in any decent publication, and he, Maddox, and Mason should be sharing a prison cell at Attica. Instead, Sharpton is constantly feted as a hero, makes a grand living as a traveling speaker, is a featured speaker by the Democratic Party, and has joined forces with Cash Michaels of the Wilmington Journal to perpetuate the Duke 'rape' lie."
5. "[T]he legal system (if we can call it that) has deteriorated even further from where it was in 1988, when the grand jury at least had the courage to declare Brawley’s story a hoax. Today, the grand jury in Durham swallowed all of Nifong’s lies, and until the charges are dropped or a jury declares 'not guilty' (which I believe will never happen if the case comes to trial), these young men are in mortal danger of being falsely convicted, even though all of the major players know that the state’s charges are false."
Dr. Anderson did not mince words: "We labor under the delusion that men like Michael Nifong are decent and honorable, and that the elected officials and judges in North Carolina who are overseeing this whole fiasco are honorable people who want to do what is right. They are not. They are nothing more than political animals that will do what is necessary to be elected and hold office, and have no interest whatsoever in what is right or wrong."
Interestingly, Dr. Anderson primarily attributed the epiphanies of New York's Attorney General and Governor during the Tawana Brawley scandal to "political reality"--" Robert Abrams and Mario Cuomo did not come to the realization that Brawley and her supporters were lying because they were honorable men; they came to that conclusion because it was forced upon them by political reality, and because those who were accused were part of the state legal apparatus" and contended "that if those two men currently were attorney general and governor of North Carolina instead of having held those positions in New York, they also would be pandering to Nifong and Sharpton."
That may well be true, but it two other white liberal Democrats--Governor Michael Easley (who appointed Michael B. Nifong as Durham County, North Carolina District Attorney) and Attorney General Roy Cooper--who are responsible for overseeing what Mr. Nifong has been doing, and they have been derelict in their duty to see that Mr. Nifong serves as a minister of justice instead of abuses his power as a prosecutor/persecutor.
Perhaps most significantly, Dr. Anderson looked beyond the "system" to provide "justice" to the Duke Three being scapegoated by Mr. Nifong with the aid or acquiescence of his allies: "If the legal nightmare for Seligmann, Finnerty, and Evans really does end, it will not be because 'the system works.' It will be because bloggers, attorneys and a few heroic journalists made sure that the 'legal' system did not work. We can only hope that Tawana Brawley II ends as did Tawana Brawley I: that despite the best efforts of the lying state 'justice' apparatus, the truth was exposed anyway."
Some of us (including Dr. Anderson) have done more than hope. We have tried to expose the truth.
Fortunately, Newsweek is not alone in turning skeptical and cable television, particularly Fox and MSNBC, has focused on the Duke case and is beyond the control of the Durham establishment.
But, back on June 19, 2006, Ms. Sheehan admitted that she had been assuming Mr. Nifong had a case instead of appreciating the reality that he is a disgrace:
"Say all you want about the media's rush to judgment. But the truth is we report on allegations and charges out of district attorneys' offices every single day. And when a DA, especially one with Nifong's reputation for being a quiet, behind-the-scenes guy, comes out not only saying that a rape occurred, but that it was a brutal gang rape, in which the woman was strangled and beaten, you had to figure he had incontrovertible evidence.
"Apparently, he didn't."
Recently, Ms. Sheehan has taken to mocking Mr. Nifong (a harbinger of coming doom for him).
On July 22, 2006, Dr Anderson, in a thoughtful article titled "Criminal Prosecution: How Michael Nifong Intends To Frame the Duke Defendants" (http://www.lewrockwell.com/anderson/anderson135.html), accorded the defense qualified praise: "Up to this point, it would seem that the attorneys have done a good job both of defending their own clients and demonstrating that a rape never occurred in the first place or, to be more specific, no one raped Mangum at the party. Many of us have seen the strong exculpatory evidence on behalf of Reade Seligmann and are aware that Nifong almost certainly sought to indict him while knowing he was innocent."
One big problem was that Mr. Nifong's document production had not been made public (wisely, by Mr. Nifong; unwisely, by the defense) and therefore many persons suspected the defense of spinning and selective disclosure. Thus, as Dr. Anderson noted, "[s]ome entities, like the Durham Herald-Sun,...editorialized that Nifong must have something else besides what has been revealed so far...." Commentators like Alan Colmes essentially said the same thing, and called for the case to proceed as though it was a routine case instead of dismissed as a railroading disgrace.
Fortunately for the Duke Three, notwithstanding an outrageous gag order issued by Judge Kenneth Titus on his own initiative on July 17, 2006, the damn broke.
On Sunday, August 6, 2006, The News & Observer acknowledged in a devastating expose titled "Lacrosse files show gaps in DA's case" that it had acquired a set of the documents that Mr. Nifong had produced in discovery and announced that "[a] review of prosecution documents in the rape investigation reveals that the district attorney's public statements promised more than the evidence released so far indicates."
After that, even Susan Estrich, one of the last professing to believe that a rape occurred, put plenty of distance between herself (a genuine rape victim quick to believe any claim of rape) and Mr. Nifong (a genuine political hack who, to win election, would put the innocent Duke Three on a rack):
"There is a scandal now brewing in the Duke lacrosse case. I'm not even sure whether to call it a rape case anymore. You're about to see why.
"Consistent with the procedure in North Carolina and elsewhere, the prosecution has to turn over its evidence to the defense to prepare for trial. There's still more to come, but the bulk of what has been turned over is troubling enough. It suggests a failure to follow standard procedure that is rather mind-boggling.
"Consider: The District Attorney....announced to the press that he was certain that a rape had taken place before excluding the possibility that the woman's physical symptoms were the result of sex with another man (turns out she'd had sex with her boyfriend within the preceding 24 hours)....The prosecutor relied on a photographic identification procedure that reportedly violated the standards of his own department. If the discovery is any indication, his case is sitting on quicksand."
Ms. Estrich's speculation as to "what would have happened if the District Attorney had waited to go to the grand jury, followed the identification procedure, let the test results come in, found out about the boyfriend and investigated enough to learn that one of the suspects had an airtight alibi": "He might have decided not to file charges at all, or not to file them against these three young men."
Note to Ms. Estrich: Then he would have lost that primary to Frieda Black.
The scandal is not that Duke lacrosse players gang-raped. They didn't. The scandal is that Mr. Nifong abused his prosecutorial power for personal political purposes and has yet to be called to account for it.
But August has been hot for Mr. Nifong and he will fall in the Fall, first in the courtroom of public opinion and then in the election in which he is the Democrat candidate in a Democrat bastion, there is no Republican candidate and the Democrat who got on the ballot via the petition route (Lewis Cheek) has announced he will neither campaign nor serve if elected. Fittingly, in the soap opera that is the Duke case, this ABN (Anybody But Nifong) candidate will win.
What the defense needs is not a DNA expert to challenge the test results (they were favorable to the defendants), but a lawyer familiar with government corruption.
As it turns out, they have one!
From Friends of Duke University website:
"At 5:41 PM, July 06, 2006, Anonymous said... One of Finnerty attorney's, Michael Cornacchia, is a specialist in government corruption, he was the chief investigative counsel under Paul Volcker for the investigation of the UN Oil-for Food Scandal and a former US Eastern asst District Prosecutor."
Unfortunately, the so-called Volcker commission flinched, people eager to get to the bottom of things resigned in protest and Mr. Cornacchia chose to stay instead of go.
From the Independent Inquiry Committee into the United Nations Oil-for-Food Programme Statement to the Press of June 15, 2004:
"Prior to his appointment, Michael Cornacchia served as Senior Litigation Counsel for the Office of the U.S. Attorney for the Eastern District of New York as well as a deputy chief in its Criminal Division. While in these positions Mr. Cornacchia directed major investigations into corporate and securities fraud, and public corruption."
Like the United Nations, the Durham County District Attorney's smells like a cesspool of corruption.
The Duke Three should show that they have been victims of prosecutorial abuse, not just show reasonable doubt as to whether they committed the heinous crimes of which they are charged.
As Shakespeare wrote in Measure to Measure, Act III, Scene 1, Line 214: "Virtue is bold, and goodness never fearful."
What the defense needs is boldness and strength, not meekness or weakness, The kind of boldness showed by Kirk Osborn, Reade Seligmann's attorney, in moving to remove Mr. Nifong from the case for good cause: "District Attorney Mike Nifong neglected his duties as a prosecutor to seek the truth and a fair prosecution. He created an actual conflict between his professional duty to search for the truth and his personal, vested interest in getting elected in the following ways: (1) he ignored the actual facts of the case which demonstrate the Defendant [Reade] could not have committed this crime; (2) he made a series of statement to the national media designed to bolster his election chances while prejudicing the case against the Defendant; (3) he improperly injected himself into the photographic lineup proceedings, causing the Durham Police Department to violate its own policies in an effort to provide himself a source of information from which to indict some, indeed any Duke Lacrosse players; and (4) he denied the Defendant a probable cause hearing where the Defendant's actual innocence could have been shown and the gross deficiencies of the prosecution's evidence would have been exposed."
Yes, judges have put aside the motion, but they soon will regret it. If the motion is not granted soon, the media may make very good use of it at a propitious moment, to the consternation of the Durham County judiciary as well as Mr. Nifong and his political supporters. Exposing Mr. Nifong and exonerating the Duke Three would be a great public service and great television.
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.