WEBCommentary(tm) - "60 Minutes" May Need More Time

The bulk of the people of Durham County, North Carolina want a principled, professional criminal justice system in which criminal allegations are investigated promptly and fairly; people cooperate with legitimate investigations; the guilty are arrested, prosecuted, convicted and punished; the innocent are not prosecuted (much less persecuted); and personal and political considerations of shameless opportunists entrusted with an important fiduciary duty do not pervert or corrupt the administration of justice in any way, much less a multitude of ways.

"60 Minutes" has a glorious opportunity to help those people move toward the realization of what they want, but obviously do not yet have (as well as itself). And it may need more than an hour to do all that it should do.

It will be a test for CBS and "60 Minutes," which have a liberal bias and would be more comfortable exposing Republican villains. But Durham County, North Carolina is a Democrat bastion and the North Carolina Governor (Michael Easley) and Attorney General (Roy Cooper), both Democrats, have not acted to stop a gross injustice that has become progressively more obvious. [Governor Easley appointed the man most responsible for the persecution (yes, persecution, not prosecution) of the Duke Three, Durham County, North Carolina District Attorney Michael B. Nifong, and it's a safe bet the Governor won't be boasting about his judgment in that regard if and when he runs for re-election or the United States Senate.]

God bless Cash Michaels for (1) reviewing the prosecution's document production in the Duke case, (2) recognizing that there is no evidence there proving any of the heinous criminal charges pending against the Duke Three, and (3) confirming my report about the upcoming "60 Minutes" season opener, which, in Mr. Nifong's case, will be an exception to the alleged general rule that there is no such thing as bad publicity.

Mr. Michaels on the prosecution's documents: "Thanks to the release of over 1850 pages of discovery evidence in the Duke alleged rape case, the degree of incriminating facts substantially proving first-degree rape, first-degree sexual offense and first-degree kidnapping so far is weak, if showing any pulse at all, most observers agree."

"[W]eak, if showing any pulse at all," is fair enough. It was politically critical, but utterly outrageous, for Mr. Nifong to seek indictments under the circumstances.

Mr. Michaels on the strength of the prosecution's case: "Despite two sets of DNA tests on 46 lacrosse players purportedly at the March 13 party where an exotic dancer claims she was raped and beaten, no conclusive results linking any of the players to the alleged victim.

"The second dancer, Kim Roberts Pittman, contradicted herself in stories to the police and the media about what she saw and didn’t see, compromising it all with an exposed attempt to have a New York public relations firm market her story.

"And time stamped photos, ATM receipts and cell-phone logs, all providing alibis for at least one of the three indicted players.

"Along with the multiple stories of the alleged victim and the compromised police photo lineup that will certainly be challenged after hearings in the case resume Sept. 22 out of the view of television cameras, the prosecution’s case is royally considered a mess, at this point."

The New York Times' recent attempt to confer some respectability on Mr. Nifong did not impress Mr. Michaels either: "A roundly criticized New York Times article published last week, indicating that a report based on the memory of Durham Police investigator Sgt. Mark Gottlieb plugs some of the holes in Durham District Attorney Mike Nifong’s case, has raised more questions about how long Durham authorities knew their public bark about the alleged guilt of the three Duke lacrosse players charged, was a lot more than the actual bite they had in credible evidence." Mr. Michaels remains disgusted with the silence of the members of the Duke lacrosse team. His disgust is understandable, but so is their silence. Innocent people should not be afraid to speak to the police investigating an allegation that a crime has been committed. But the Duke case is an exception to that general rule, because the investigation hardly has been fair and objective and, in such circumstances, silence is the safest course as well as standard legal advice.

Am I saying that David Evans should not have made the stirring speech after he was indicted?

Of course not. Mr. Evans addressed America, and assured everyone that he and his co-defendants were innocent. He was right to do so. And his co-defendants would have been right to do so too. It is important to appeal to the court of public opinion when justice in the local court is in doubt.

Remember that Mr. Evans and his co-captains offered to take a polygraph test, but Mr. Nifong rejected their offer.

THAT strikes me as very suspicious. Polygraph tests are routine in the criminal justice system. A fair and objective professional prosecutor should have been delighted to have a suspect take a polygraph test, even though the results are not admissible in North Carolina courts.

Why would Mr. Nifong pass up the opportunity to have Mr. Evans answer key questions asked by a polygraph expert?

The answer that springs to mind is that he did not want to have the accuser similarly tested (as well as Mr. Evans to pass).

Remember that when a member of the Kennedy family (William Kennedy Smith) was accused of rape by a young white female in Florida fifteen years ago, she passed TWO polygraph tests before he was prosecuted (unsuccessfully).

In that case, three women came forward before trial to say that Mr. Smith had sexually harassed them, but the judge did not allow them to testify at the trial and a jury unaware of that decided that guilt had not been proven beyond a reasonable doubt.

What is telling to me is that apparently NO ONE has come forward to say that ANY of the Duke Three ever sexually abused anyone. The notion that the three of them suddenly gang raped the accuser (Crystal Gail Mangum) last March at a party attended by dozens of lacrosse players is nutty. But, it was precisely what Mr. Nifong needed to embrace in order to manipulate black voters and win an upset victory in the Democrat primary last May.

In addition, it should be emphasized that the lacrosse team members did not let lawyers fight to block DNA testing, even though lawyers could have made strong arguments that the legal standard for ordering DNA testing had not been met.

The article on the Duke case in the June 26 Newsweek issue began 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.)"

When lacrosse team members concluded that a scheme to frame at least some of them was afoot, they accepted legal advice to exercise their right to be silent.

But it is NOT understandable (or tolerable) that Judge Kenneth Titus issued a gag order last July 17 to stop team members (even including the Duke Three) to speak to the media.

Mr. Michaels' latest article--"DUKE CASE: SILENCE IS EVIDENCE"--reflects his frustration that the whole story of what happened at the party is not known, But, the absence of evidence is not evidence. The Fifth Amendment to the United States Constitution specifies that "[n]o person...shall be compelled in any criminal case to be a witness against himself, nor deprived of life, liberty, or property, without due process of law...."

Mr. Michaels has a point: "there is a mother load of testimonial evidence D.A. Nifong could have gotten if Durham police investigators had moved swiftly enough in the beginning, that may be out of his reach, even at trial."

BUT, that testimonial evidence would NOT have supported any of the pending criminal charges and the case should not continue in the hope that evidence may materialize.

Mr. Michaels mused about "what if" Mr. Nifong "had what many have long speculated he better to prove his so far rudderless charges."

Mr. Michaels acknowledged that "attorneys advised all of the players, including the lone African-American member of the team, to say nothing to police, for fear that anything that they did say would and could be used against them if indeed a case was made."

Mr. Michaels opined that "[t]here was little doubt that the players knew something they weren’t talking about."

Mr. Michaels insisted that “there is an incident that the players do know about, but have stayed mum on."

Mr. Michaels: "What happened in the five or so minutes Pittman claims they [she and Crystal Gail Mangum] were separated is a mystery. But it is also plenty of time for one, or some of the angry players, many of whom had been drinking all afternoon until midnight, to confront the alleged victim about the $800.00 they paid, but the two-hour strip performance they didn’t get."

If there was a crime committed during that brief period of time (and it's a big if), then it will go unprosecuted because the prosecution did not properly investigate. Meanwhile, Professor Robert K.C. Johnson is lamenting that the most recent defense motion "has received relatively little media attention," even though it "provides a host of new insights into D.A. Mike Nifong's unraveling case."

"On April 4, Durham City manager Patrick Baker (the same Patrick Baker who would later speak to all DPD officer to ensure their accounts of the investigation were all the same) gave Sgt. Mark Gottlieb 24 hours to produce a timeline of the investigation, which he could present to the City Council. The timeline, in turn, wasn't included in discovery."

"There are no handwritten, contemporaneous notes of the first lineup (March 16, 21), in which the accuser identified none of the then-six suspects in the case, including Dave Evans."

"Gottlieb produced handwritten notes for one day of the investigation (April 27) but for no other days. No reason was given for this pattern."

"Five months later, the DPD still hasn't completed its examination of the players' computers and email accounts."

"The accuser was hardly unknown to the DPD: apart from her 2002 arrest, she was involved (in what capacity is unclear) in at least four other cases since 2000, involving such matters as DWI, larceny, and child molestation."

"The police were ordered in June to produce all of their e-mails related to the case, but still haven't done so."

"Even though he asserted in court that he didn't discuss the case in an April 11 meeting with the accuser, Nifong apparently did so--at least according to Gottlieb's notes.

"On the night of the incident, the accuser spent 40 minutes at the Durham Access Center, where she made her initial claim of rape. She spoke to three people at the center. Five-and-a-half months later, police apparently haven't spoken to two of the three people that dealt with the accuser on the night of the incident. They claim to be unable to locate one of them, and haven't even tried to look for a second."

But the motion is a public document and there is no problem with defense lawyers sending messages to "60 Minutes" in court filings.

"The Gottlieb/Nifong alliance might be a marriage of convenience, but any partnership between inherently unethical figures is always unstable. Gottlieb's report essentially claims that Nifong lied to the court on June 22, when he asserted that the April 11 meeting with the accuser had nothing to do with this case. Why would Gottlieb undercut Nifong in this fashion? In the end, he seems most determined to look out for himself. Besides Nifong and Gottlieb, there were three other people at the meeting (the accuser, Gottlieb's partner, and another police officer). Nifong might be willing to bet that the other three will lie if the meeting's subject is investigated, but Gottlieb isn't."

"Gottlieb, it's worth remembering, has done this once before: in his transcript of the April 4 lineup, he went out of his way to indicate that Nifong ordered the DPD not to follow its own procedures in the lineup. As with the comment on the April 11 meeting, Gottlieb recognized there were other parties who knew about this matter, and so his chief goal seemed to be to cover himself from future liability. If, as it should, this case ends with Nifong's disbarment, that line in the Gottlieb transcript will play a critical role in Nifong's fall."

"The tension between D.A. Nifong and de facto Police Chief Nifong is apparent. The defense motion notes two occasions (regarding the April 11 meeting and regarding meetings between Nifong, Gottlieb, Himan, and the DNA lab) when Nifong has tried to cite the 'work product' rule of attorneys to avoid handing over material to the defense. That's normally a solid argument--but not in this specific case, when it's clear that Nifong was serving not only as D.A. but also overseeing the police investigation. Discovery laws mean that the latter isn't privileged material." Now if only the North Carolina State Bar and North Carolina courts will enforce the rules against Mr. Nifong.

"Though better than nothing, North Carolina's open discovery law isn't working as it should. The material that the defense demands be turned over (e-mails, handwritten notes of key investigators, the computer analyses) should have been produced long ago. The open discovery measure was designed to prevent just this kind of behavior--the prosecution dragging its heels and not giving the defense access to all evidence related to the case. If the law is going to work, state judges need to start compelling prosecutors to abide by its terms."

Stated otherwise: the court should reign in an out-of-control prosecutor instead of ignore defense motions and issue unconstitutionally broad gag orders to help him.

The next court conference (untelevised) is scheduled for September 22, two days before the "60 Minutes' season opener.

AFTER the "60 Minutes" season opener, justice should swiftly triumph. The Duke case should be dismissed. Democrat Lewis Cheek, the District attorney candidate who will not campaign or serve, but remains on the ballot, should win as ANYONE BUT NIFONG. Steve Monks, the Republican candidate who failed to get enough signatures to get on the ballot, should cease his write-in campaign, since Mr. Nifong would be the beneficiary of it and the anti-Nifong vote should not be split. Governor Easley will be hard pressed NOT to appoint a much better person to succeed Mr. Nifong as Durham County's District Attorney, but the politics-as-usual temptation will have to be overcome if Durham County is to be a jewel in the criminal justice system instead of a national joke.

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.