The Duke case is a hoax and a travesty of justice requiring recognition and rectification.
The Duke case is a hoax and a travesty of justice requiring recognition and rectification. It became the Duke case because a desperate and troubled young black woman (Crystal Gail Mangum) about to be incarcerated cried rape and a desperate middle-aged white man (Michael B. Nifong) about to lose a primary for the job to which he recently had been appointed and to which he never had been elected (Durham County, North Carolina District Attorney) opportunistically used that pathetic cry to snatch victory from the jaws of defeat and to continue his employment by averting his impending unemployment (Mr. Nifong had to fear that Freda Black, whom he had fired when he became district attorney and who was about to win the primary in less than two months, immediately would send him packing when she replaced him and those looking for a criminal defense lawyer in Durham County would be very reluctant to hire him, given the animosity between him and Ms. Black). Mr. Nifong was hardly a fair and objective "minister of justice," as required. He had powerful personal motives for prosecuting the Duke Three, even though they are innocent: winning a primary and keeping his job, avoiding the humiliation of being defeat and fired by a person whom he had fired, and money (see "Hey Kids! Estimate Nifong's Pension It's Fun!, posted on September 15 at crystalmess.blogspot.com).
Is Ms. Mangum trapped? Is she too now a victim of Mr. Nifong? Does she want to come forward and admit that she wasn't raped, but said she was, because she feared she would be institutionalized if she didn't come up with a distraction and a gang rape claim was the only idea that came to her mind?
Are lawyers advising Ms. Mangum that she dare not admit that she made a false charge and must stand by it, at least until after Election Day 2006, or else Mr. Nifong will make her a scapegoat for his decision to have her pick some defendants from photos of the 46 white members of the 2006 Duke Men's Lacrosse Team for him to prosecute? Any realistic hope that there will be big money for Ms. Mangum and her lawyers as a result of a civil suit (just as there was for the blonde who accused Kobe Bryant of rape and her lawyers) has disappeared. But fear of the wrath of Mr. Nifong is a powerful thing to fight off. Pray that God gives Ms. Mangum the strength to do it!
Is that gag order issued by Judge Kenneth Titus on July 17, 2006, which states in part that "any witnesses for the State... are hereby restrained and enjoined from communicating with the news media concerning the above-entitled criminal action except as specifically permitted by the provisions of Rule 3.6 of the North Carolina Revised Rules of Professional Conduct," stopping Ms. Mangum from coming forward?
Whether "60 Minutes" broadcasts its Duke case expose on September 24, as long tentatively planned, or a week later, because the court scheduled a conference in the case on September 22, or even later, because a monumentally important matter takes priority, "60 Minutes" has been working on a Duke case expose for months and there is plenty to report to America.
Ms. Mangum would benefit from someone who cares about HER sending her a message like this one sent on July 14, 2006 by someone who loves Collin Finnerty (by posting at the Friends of Duke University website) to Collin and his family: "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."
Collin reminds Ms. Mangum of "Opie," the young boy who starred as the son of the fictional Sheriff Andy Taylor of Mayberry, North Carolina in the old "Andy Griffith Show."
None of the Duke Three should have been put through the ordeal through which they have been put. Mr. Nifong may dream of the Duke case becoming the greatest case in the history of Durham County, and perhaps all North Carolina next year. The defense attorneys have been preparing for that trial and will not lose it. But the sooner finis is written to the fiasco that is the Duke case, the better.
Ms. Mangum, speak now, BEFORE "60 Minutes." You too have been a victim, not a guiltless one, but a victim too. Pray about it. Your conscience will tell you what is right. Being afraid of Mr. Nifong or listening to a lawyer are understandable, but neither one nor both is a good excuse for not doing the right thing.
"Evidence" for the felony charges still pending against the Duke Three is like the Emperor's New Clothes: imaginary. It's not that the defense will show
reasonable doubt; it's that there is not credible evidence that any one of the Duke Three is guilty of kidnapping, or rape, or sexual offense. There is no basis on which to proceed to trial.
If you doubt that , go to the website of Professor Robert K.C. Johnson (durhamwonderland.blogspot.com), or Liestoppers
(liestoppers.blogspot.com), or John in Carolina (johninnorthcarolina.blogspot.com), or Michael McCusker (crystalmess.blogspot.com) and read. The plethora of problems with the prosecution and the dearth of evidence of guilt will be apparent.
Cases are to be decided based on evidence, not sheer speculation. Arguing from the evidence is appropriate, but argument is not evidence.
An e-mailer who mostly agrees with me about the Duke case highlighted the critical difference between "facts and concrete evidence," which support the defense, and "arguments like we are hearing from the side that is supporting the accuser," which amount to wishful thinking and do not constitute evidence.
A few items that doom any prosecution of the Duke Three and demand dismissal: Ms. Mangum's contradictory versions of what happened at the party; the initial "crock" remark of the second stripper (Kim Roberts), contrasted with her subsequent "belief" that there had been a rape that apparently delighted Mr. Nifong, even though it is not credible evidence, and won her favorable treatment from Mr. Nifong; Mr. Nifong's unsuccessful prosecution of the black cabbie who dared to confirm Reade Seligmann's alibi on a baseless charge; the 46 lacrosse players providing DNA samples instead of litigating whether they were probable cause for ordering them; the Duke Three passing polygraph tests; the criminal records of Ms. Mangum and Ms.Roberts; the fact that no one has come forward to say that any one of the Duke Three had sexually harrassed them; and testing NOT indicating that Ms. Mangum had ingested a date rape drug at the party.
My e-mailer offers these excellent examples of "the huge difference between 'evidence' and 'arguments':
evidence - "No DNA was found in or on" Ms. Mangum versus argument - "maybe they wore condoms."
evidence - Ms. Mangum gave a "positive" identification of David Evans, except she said he had a moustache versus argument - "maybe he was wearing a fake moustache.
evidence - "Kim Roberts stated, 'I was with her for all but 5 minutes' (this does not support one of the accusers statements that she was assaulted and raped for 30 minutes) versus argument - "maybe when you are being raped, 5 minutes seems like 30 minutes."
evidence - Ms. Mangum "became incoherent and irrational" versus argument - "maybe she was given a date rape drug."
evidence - Mr. Mangum has given multiple, inconsistent versions of her story, her original physical descriptions of the accused players are nothing close to what they really look like, she even accused Kim Roberts of assisting in the assault and robbing her of her money, and her first two lineup identifications produced nothing (as we all know by now, she made her "selections" when she was given the final can't-miss lineup) versus argument - "when you have been subjected to the type of trauma that Ms. Mangum claimed to have been through, then maybe your accounts of what happened would be riddled with inconsistencies."
Lacking actual evidence of guilt yet hell-bent to prosecute, Mr. Nifong resorted to saying whatever seemed to be helpful at the moment, whether there was contradictory evidence of not,
Example 1: Ms. Mangum said the rapists did not use condoms, but Mr. Nifong speculated that they did. They were no rapists or condoms, except in the imaginations of some people.
Example 2: Mr. Nifong's position: there had been a rape; Ms. Mangum had been savagely attacked in a small bathroom somehow containing at least five adults and had fought for her life by clawing and scratching; AND she had been given a date rape drug. BUT, a young woman given a date rape drug would not be in condition to fight one male intent on raping her, much less three members of the 2006 Duke Men's Lacrosse Team.
The prosecution's case doesn't pass the laugh test these days (although there is nothing funny about the felonies charged, or falsely charging them, or pursuing such false charges, or Ryan McFadyen's email, or the few racist remarks made at the party).
Before Primary Day (May 2), Mr. Nifong got by in the courtroom of public opinion based on the ASSUMPTION that he had to have solid evidence. Now that enough independent experts have reviewed Mr. Nifong's production, it's apparent he had solid evidence of INNOCENCE instead of guilt and shamelessly went ahead with his prosecution (make that persecution) anyway.
On September 14, Cash Michaels, the editor/chief reporter for The Carolinan Newspaper, and staff writer for The Wilmington Journal who asks tough questions all around in his dogged pursuit of the truth, posted this message at the Friends of Duke University website (where some had not appreciated all of Mr. Michaels' writing on the Duke case):
"Since so many who post on these boards like to guess (badly, I might add) about what I think, and what I might do, without ever emailing me first to at least ask (that is really very annoying), I drop in from time to time on message boards to answer questions and straighten the record out as to my role in covering the Duke lacrosse case.
"Why do I do it? Actually the question should be, 'Why not?' Not only do I get to engage in sometimes civil dialogue with people who have varying opinions and positions (which sharpens my overall perspective on the case and how I cover it), but I also lend my perspective of what I see, and why.
"Many of you have never talked with a member of the Black press before (which is different from talking with a Black reporter for your local newspaper or TV station), so realizing that my approach to this case is different from the major media is something you’re not used to.
"I’ve been able to follow the evidence and ask tough questions of both sides because my charge from the very beginning has been to monitor the process, and see what evolves. So just because Dan Abrams and Susan Estrich said something several months ago about evidence means nothing to me. I have to confirm all information I come across to my satisfaction before I put my byline to it.
"I’m sure if you were to ask them, they would subscribe to the same.
"Now to some of you questions:
"Why haven’t my sources on the 'hush money' claim gone to the police?
"First of all, they really didn’t want to come to me, and didn’t, until I mentioned what the AV’s cousin alleged in our interview, and they figured I knew plenty already. I remembered conversations I had back in April with various ministers, attorneys and activists about how strangers were going over to the AV’s family home, offering everything under the sun. But they never really gave me details.
"But in June, after I happened to share the AV’s cousin’s claim with someone who actually called me on another matter, that’s when I was made aware that some of that activity involved people –some with known connections to Duke – who were 'floating' ideas of ways that the controversy could be dealt with quickly, with the result being beneficial to whomever stepped forward to get involved.
"Everyone approached knew exactly hat was being floated, and wanted no part of it. Because of their positions of leadership in the community, and in some cases, their positive relationships with Duke (the University, along with its subsidiaries, is a major employer of African-Americans in the Triangle), once they said 'No,' they wanted nothing more to do with it. In fact, they were angry that someone thought they were for sale, and decided never to really speak of it.
"I was amazed that the moment the discussion between us turned to alleged 'hush money' offers, they’re voices, to a person, would all of a sudden get whisper soft, and we were on the telephone.
"These people are way to solid, and in fact, had no idea who else had been approached (one lived and worked in Charlotte), so the consistency of their stories made it clear to me that there were influence peddlers out there.
"Why did the DPD records say that the AV contradicted her cousin?
"I’d love to ask her, if I can find her. But while there may be an open question on that end, the fact that those peddlers were out there trying to bait folks, is solid per my sources.
"Regarding 'If Cash Michaels believes that the accusation against the Duke 3 has no merit, why doesn't he use his influence with the so-called reliable sources in the black community to speak out on the lack of evidence in this case and the obvious fact that CGM blatently accused three innocent young men…' first I think you make the very insulting insinuation that if I snap my fingers, Black people everywhere will instantly change their minds about whatever.
"It never has worked that way, and nor should it.
"My community, the majority of whom are hardworking parents, clergy, blue collar, executives, artists, military, law enforcement, medical, and talented young people, are thinking people too. My reporting is A source of information, albeit from a perspective they have come to trust (and I hold that dear). Even so, they still have questions, and they want me to ask those questions so there can be know doubt about the picture that’s forming in front of them.
"Keep in mind that Black people see this case differently that whites, primarily because of some of the racial slurs alleged at the party. While many beyond the African-American community don’t see that issue as any big deal, 'Tell your granddaddy thanks for the cotton shirt' followed by a choice N-word or two, is not something that can be explained away with, 'Well Kim Roberts was saying nasty stuff too.'
"Though Blacks are well aware of trumped up charges made against Black suspects by authorities, they find it simply hard to believe that those same authorities would pull the same trick on white college kids from a powerful institution like Duke.
"That picture has to come into better, clearer focus for us, which is why the Sept. 22 hearing, and hearings subsequent to it, will be extremely important in adding pieces to that puzzle.
"Whether the AV lied or not, while clearly the discovery evidence and lack of DNA fail to display anything incriminating so far proving that a rape and beating took place, the judge now in charge of this case is the one who has to make that determination. No matter how people feel or what they think, Judge Smith, with the help of the defense attorneys I suspect, will be the one making the call on that one.
"I can’t put pressure on anyone I can’t find, but more importantly, the evidence so far shows that the DA and Durham PD are the ones who pushed and poured gasoline on what never might have become a raging fire.
Whatever she said in the beginning, there is no evidence proving that she pushed from behind the scenes for all of this to happen. In fact there is strong speculation that she may have tried to stop it, and couldn’t.
"With the actions of the DA so obvious, that’s where my continued focus will be for now.
"I hope that answers some questions.
"Anymore questions, write me at firstname.lastname@example.org.
The Friends of Duke University moderator distinguished himself from The Johnsville News (right about the Duke case, wrong about Mr. Michaels)
by treating Mr. Michaels with due respect: "Dear Cash, you do us great honor by posting here. I like to thank you for taking the time to respond to the various questions raised here today by some of our readers. Your explanations make a great deal of sense and they are most helpful."
Mr. Michaels is his own best defender against scurrilous charges and early that day he had disposed of The Johnsville News hit piece on him early that day.
Here, reprinted in its entirety, is Mr. Michaels' 9-14-06 column addressing that hit piece:
"DEFIANCE – Next week, Sept. 22, the next court hearing in the Duke alleged rape case is scheduled to be held, with the recently appointed permanent judge, the Honorable W. Osmond Smith, presiding now through the end of trial next spring.
"That is, if there is a trial.
"And then on Sunday, Sept. 24, the CBS-TV newsmagazine '60 Minutes' is tentatively scheduled, according to sources, to examine the Duke rape allegations, and presumably shed light on the numerous problems the prosecution has had, so far, in proving its case.
"Ed Bradley is reportedly the correspondent on this one, so it should merit more than passing attention.
"For our part here, covering the Duke case – where an African-American exotic dancer alleges that she was sodomized and beaten by three members of the Duke University lacrosse team during a wild, off-campus party last March – has been a journey, and rightfully so.
"From the beginning, our coverage of this case, and all of its legal, racial and social ramifications, has primarily been about the criminal justice process, and if it can properly and fairly prosecute the allegations.
"If the very serious felony charges of first-degree rape, first-degree sexual offense and first-degree kidnapping are true, then there is the expectation that the prosecution, namely Durham District Attorney Mike Nifong and the Durham Police Dept., have the requisite and unimpeachable incriminating evidence to prove their case, and put those indicted, and ultimately convicted, behind bars.
"If not, they walk.
"That’s the way the system is supposed to work.
"So since the beginning, in this and other Black newspapers across the country, we have monitored that process to see if the DA indeed had a case, based on his very public and very pronounced assurances – even after the dramatic failure of not one, but two DNA tests and most recently, a toxicology test – that a racially-inspired heinous crime had occurred, and he personally guaranteed that he would bring those responsible to justice.
"Despite all of the failure, the one piece of 'evidence' that seemed to balance the scales, namely an investigator’s reference in an April 5 probable cause affidavit to 'medical records and interviews' regarding the emergency room rape kit examination of the alleged victim, stated that 'the victim had signs, symptoms and injuries consistent with being raped and sexually assaulted vaginally and anally…,' and that the forensic nurse 'stated the injuries and [the alleged victim’s] behavior were consistent with a traumatic experience.'
"For our purposes and reporting, that, and the three indictments handed down by a Durham County grand jury, meant that there should, and would be more incriminating evidence on the way.
"After all, the DA did say he could prove the case, so much was expected.
"To be fair, much of the major media felt the same way.
"But weeks later, when it was disclosed and confirmed through discovery evidence that the actual medical report says no such thing, and the police investigator may have written an untruth in the affidavit that was submitted to a judge to secure a search warrant, it then became necessary to fully examine what we now knew about the prosecution’s case.
"With D.A. Nifong’s later public and private admission that his incriminating evidence is clearly not anywhere near as first promised, we began asking tough questions about why, and began reporting an apparent pattern, based on the prosecution and police department’s own notes, reports and public statements, of possible public disinformation and misrepresentations.
"To put it plainly, either there’s evidence of a rape, or there isn’t.
"Add to that the apparent political ambitions of Mr. Nifong (there is strong suspicion that he may have exploited the case in order to get the Black vote to win the May primary), and the alleged character shortcomings of at least two of the Duke case investigators (one of them involved in the alleged racial assault on a Black cook at a Raleigh sports pub), and that naturally changes the Black press’ perspective on this case.
"And that’s where our focus has been these past couple of weeks – why this case is failing, and who is responsible. It is not our job, as journalists, to declare anyone legally guilty or not guilty because that is the duty of a court of law, and no one else.
"What has surprised me has been the number of observers who expected that because the alleged victim is Black, the Black press would therefore be unable, or unwilling, to ask tough questions of the prosecution no matter what.
"True, the Black press is still supportive of the alleged victim, insofar as protecting her from the many vicious and vile racist attacks that have come from those who see this case as their opportunity to emerge from the shadows and assault the entire African-American community through her.
"WE HAVE THAT EVIDENCE, TONS OF IT – emails, phone calls, etc. - so there can be no denial of that.
"And the Black press has defended her right to take the witness stand, swear an oath and tell her story to a judge and jury, so that a just verdict in the end can be rendered, whatever the court decides it should be.
"But that does NOT mean, and never did, that as we found and confirmed new facts about the case and its evidence, that we would not responsibly report it and ask further questions.
"And it also never meant that we would not continue to look at the defense side of the case, and ask tough questions about outstanding issues, from our perspective, about events that allegedly took place during the party that night.
"When you educate a community, you have the responsibility to responsibly report what you can determine is relevant and factual. And, of course, when contradictions arise, and with a story like this it’s easy for that to happen, you have the responsibility to address them for all to see.
"Our most controversial story, the alleged victim’s cousin claim that an offer of $2 million was made to the accuser to make the case 'go away,' only later to have a police memo disputing the claim, is a prime example of such a contradiction.
"For the record, while there may have been questions about that, there is no question, based on very reliable sources in the community, that overtures to influence Black leadership to get involved in a 'hush money' effort were attempted, but failed.
"So when we in the Black press find ourselves, both personally and professionally, under vicious public attack because we rightfully approach coverage of this case with a different, yet relevant perspective for our community, we look at each other and give a hearty, 'So what’s new?'
"Like so many of our other institutions – the Black church; principled Black leadership in business, medicine, military, civil rights, the arts and government – we in the Black press are used to being maligned by everyone from white advertising agencies to dishonest politicians of all hues who try to use us to corral the Black vote.
"We are also seen as the enemy by those in whose interest it is to turn the clock back to a time when all of us were supposed to 'know our place.'
"The Black press struggles mightily to make ends meet and keep the lights burning, the doors open. We serve unselfishly because without us, our community truly has no voice of its own.
"And we endure, because it is in our blood to do so for the community that it is our honor not only to serve, but a community where courageous men and women, parents and teachers, law enforcement and community activists, and yes, visionary young people, do their best to heroically struggle for positive change that impacts everyone, especially those who have given up hope, and whose actions hold our community back.
"The fact that the power of the Internet has magnified what would otherwise be very local coverage by the Black press of the Duke lacrosse case, has made the Black press even more of a target by those who know nothing about us or our proud traditions. But they do us proud by continuing to hound and disparage us, because that proves that as tiny as we may be, we are significant enough to scare them, to intimidate them, and to defy them.
"Defiance, based on the evidence of history, is what fuels a dynamic and effective Black press. We’ve been hardened since 1827 by opponents more adept and skilled than some of the vile morons who pretend today to lead somebody or something.
"Unless they can quiet us, those nefarious forces will just have to suffer more as we continue to confirm, and report what WE see and what WE hear, as the Constitution of this nation allows.
"Yes, Dr. Martin Luther King, Jr., the great civil rights leader and true inspiration for all of us here in the Black press, once said, 'Injustice anywhere is a threat to justice everywhere.'
"But anyone who truly knew Dr. King - and the Black press still reports the stories of those who did know and work with the man - knows that he never employed unjust means to bring about a just and righteous result.
"Those who publicly invoke Dr. King’s words of justice and peace, but hide in the shadows of hate and anger, are being revealed for the cowardly moral failures that they are. Their pathetic glee in their unwarranted attacks on the Black press has exposed them for what they truly are. They cannot, with any modicum of decency now, credibly call for justice on behalf of the Duke indicted, after displaying a complete absence of moral compass in how they’ve viciously disparaged the Black press and this reporter.
"In closing we say continue, and see how much more you help your cause. Continue to prove what we’ve known, and have had evidence of for the longest time – that while there are clearly those who believe the three indicted Duke players are innocent and respectfully want them exonerated, there are others who have, and continue to use that cause to further their own hatred and agenda, and could care less who they hurt in the process, including that cause.
"BE OUR GUEST, whatever your name is, since you castigate us on the Internet from the hole in which you namelessly hide. The day that you decide to step forward, give your name, and take as well as you give, is the day you may begin to deserve some, if any respect, such a substantive, but pitifully late gesture, deserves.
"Neither this reporter nor the Black press have hidden from anyone. Dr. King never hid either. Cowardice is not in our bloodstream.
"Commitment to truth is, and you can’t honestly claim that commitment from the shadows.
"We gratefully thank those who, while they may disagree with our perspective on the Duke case, have publicly denounced the vile attacks made on us, and have sought common ground and understanding. That is most valued indeed.
"In the search for truth and justice, that’s all one can, and should ask for.
Mr. Michaels surely is right about that!
We need more decency.
We need more objectivity.
We need to pursue the truth.
Mr. Michaels has been doing it.
"60 Minutes" has been doing it.
Many others have been doing it too.
The Duke case should be put out of its misery, so the undeserved misery of the Duke Three and their families and friends can be alleviated, they can move on with their lives, and the people of Durham County can do what they need to do.
Ms. Mangum, it's time America hears the truth from you! It's the decent thing to do! Defy whomever wants you to remain silent when the truth needs to be told.
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.