My inclusion in my last article ("Duke case defense, respect Durhamites") of this comment by an anonymous poster at the Friends of Duke University website --"I hope you are right. This assumes a Durham jury will actually pay attention to what the alibis will say. What if they ignore it all?"--upset some Duke defense supporters, especially one who posted a rant on the John in Carolina website including these words: "Can someone tell Gaynor that picking out an obscure comment made by an anonymous commentator on a website does not give him any basis, not by a long shot, to make such outlandish generalizations as to suggest 'the defense supporters are insulting the potential jurors!'"
My inclusion in my last article ("Duke case defense, respect Durhamites") of this comment by an anonymous poster at the Friends of Duke University website --"I hope you are right. This assumes a Durham jury will actually pay attention to what the alibis will say. What if they ignore it all?"--upset some Duke defense supporters, especially one who posted a rant on the John in Carolina website including these words:
"Can someone tell Gaynor that picking out an obscure comment made by an anonymous commentator on a website does not give him any basis, not by a long shot, to make such outlandish generalizations as to suggest 'the defense supporters are insulting the potential jurors!'"
"Can somebody tell him to shut up until he has something to say that is not based on an anonymous post? If he does not have anything else to contribute (except those anonymous comments that has he been following so closely and ever so carefully) perhaps he should remain silent."
"Mike why don’t you open up your column for comments? I would love to provide some feedback to you, as I am sure many others would."
Please let me address each of these comments in reverse order.
First, I receive many comments, even though I don't have my own website. The websites which regularly post my articles decide what contact info to provide. Each of my submissions to them includes my name, home address, telephone, fax and email address. MichNews.com provides an email link. RenewAmerica.us does not (although I have said I have no objection), but sometimes forwards comments. PostChronicle.com and webcommentary.com also forward feedback. My email address is email@example.com.
Second, the anonymous commenter wrongly suggested that my article was based on an anonymous post at the Friends of Duke University website; it was a couple of lines. My article was based on the September 22 court conference and focused on the defense survey of a tiny sample of potential jurors and the defense decision to assert privilege and submit the survey script to the court for in camera inspection instead of make it public.
"'Nifong asked the judge to decide whether the poll was appropriate and to decide whether it violated any ethical rules.'
"Nifong championing a fair trial?
"Gall, he does not lack.
"Yes, the defense rebutted and the rebuttal was reported:
"'Defense lawyer Wade Smith told the judge that the poll of 300 Durham residents was necessary because of the unprecedented amount of publicity the case has received.
"'We have tried to think of any case in North Carolina history that comes close to the kind of interest that has been generated in this case," Wade Smith said. 'There isn't a person at this table who would squint down his eyes and say, 'I think I will try to influence improperly the 240,000 people of this county.'"
"BUT, the best evidence of whether or not the survey questions were fair is...THE SURVEY QUESTIONS, not Mr. Smith's assurance that all defense attorneys are above trying to improperly influence.
"BETTER! Defense attorney Joseph Cheshire said that Mr. Nifong's wife version of the questions did not match the actual questions.
"GREAT! Prove it. Show some respect for the voters of Durham, and show it before Election Day.
"The defense is passing on an opportunity to expose the Nifongs (husband and wife) as misrepresenters of the survey questions approved by the defense for a survey designed to ascertain how badly Mr. Nifong's public statements had poisoned the Durham County jury pool.
"Defense lawyer Joseph Cheshire said in court that Mrs. Nifong's versions of questions did not match the script. But, the script was submitted to Judge Smith for in camera examination to determine whether it was proper, not made public.
"I don't doubt the questions were proper (even though at least one erroneously mentioned rape instead of alleged or claimed rape).
"But I also don't doubt that Durhamites would much appreciate seeing the evidence that shows that Mrs. Nifong's story does not match the script LONG BEFORE ELECTION DAY.
"Preparing for a trial (and perhaps retrial) new year is one strategy, but it keeps the nightmare going.
"Letting Durhamites know that Mr. Nifong is unfit and then moving to dismiss because the evidence shows that the indictments were improvidently granted and there is not credible evidence of guilt, much less proof beyond a reasonable doubt, is a better one. (Not necessarily as remunerative, but better.)"
The anonymous friend of Friends of Duke University should realize that independent commentators do not take marching orders from it it or him, and that misrepresenting my articles will not silence me.
Third, quoting me out of context is not a good idea either. I did not "suggest 'the defense supporters are insulting the potential jurors!'"
What I actually wrote was:
"If defense supporters insult potential jurors, they should blame themselves if Durham jurors do decide to ignore the evidence and send a message. The defense team should set a good example, by treating the people of Durham with respect and letting them know what they need to know in order to decide whether or not to elect Michael B. Nifong. Making those disputed survey questions public instead of asserting that they are privileged (a reasonable legal position, but bad from a public relations point of view) would be a good start."
NOTICE that Mr. Anonymous added the word "the" to what he represented to be a quotation from my article? That does change the meaning.
I also wrote:
"Pray that defense mistakes do not help Mr. Mangum. (There will never be a conviction, but treating the people of Durham as part of the problem instead of the solution helps instead of hurts Mr. Nifong.) Mr. Nifong is trying to use the defense's small survey of potential jurors to convince Durhamites that it is really the defense, not he, that wants to taint the jury pool.
"Yes, that is ridiculous.
"But all Mr. Nifong really has today is the hometown advantage and of course he will try to use it to save himself."
My concern was that defense secrecy might suggest to a number of Durhamites that the defense has something sinister to hide.
I quoted an anonymous commenter who feared that "a Durham jury" might "ignore it all" [referring to problems with Mr. Nifong's new timeline], and juxtaposed that with commenter "Val," who appreciated that Mr. Nifong really had not created a case where one did not exist by drastically shortening the alleged rape time and blithely asking the court to take judicial notice that overestimating by a factor of three to six is to be expected.
Another anonymous poster told me not to worry: "Mr. Gaynor, I suggest that you take it easy. There is a process of jury selection. I imagine people who know a lot about the case are not going to be allowed on the jury. Thus, people who read FODU are highly unlikely to be allowed on the jury. Regardless of this, I sincerely doubt that somebody reading an anonymous post on a message board is going to be upset to such a degree he/she would want to convict innocent men to send a message."
Fair comment. I wish the commenter had read my article (or read it more carefully). What concerned me (and concerns me) enormously are (1) the general suspicion that secrecy elicits having a deleterious effect on jurors and (2) a liar with a conviction agenda slipping onto and hanging the jury.
An anonymous aspiring peacemaker offered this advice:
"Everyone relax and calm down. This is beginning to remind me of the scene in Thunderball where James Bond gets away in part because he gets the bad guys shooting at themselves. Finally the head bad guy realizes this and says 'You idiots, he's got you shooting at each other.'
"You can strike the word 'idiot' from that because no one around here is an idiot. Everyone commenting on this is obviously intelligent. And we are the good guys, no question. But we are shooting at each other in a manner of speaking and we shouldn't be. We're all on the same side. Just stop, take a deep breath and think about what's really important - Collin, Reade, Dave, all the players on the team and their families. That's why we're all here. Let's fight for them and not fight each other."
To be sure, the Duke Three, their teammates and families are "really important."
But, there are other things that are "really important," like how the criminal justice system should function, how the media should report the news, how colleges should deal with indictments of students and race relations in America.
As I wrote in the article that involved much more than an anonymous post:
"The lessons of the Duke case are many, including:
(1) mainstream media should not have jumped to an erroneous conclusion that fit its agenda;
(2) so-called educators at a leading university should not have lost their moral bearings;
(3) the President of Duke University should not have made the great mistake of presuming guilt, suspending the then sophomore defendants and keeping them suspended even as the case collapses;
(4) the local media and establishment gave far too much credence to the hometown accuser (an ex convict stripper with a problematic history) and the prosecutor (a desperate and opportunistic politician) and too little respect to the three young Yankees from wealthy families without any history of sexual abuse (much less kidnapping and rape); and...
(5) the defense gave paramount importance to preserving and seeking trial advantage, as though they were defending guilty persons, and not enough importance and respect to the good people of Durham, who are the Durham solution (but NOT the Durham solution that DA Nifong has in mind)."
I repeat: "I don't believe in a one-size-fits-all, keep-them-quiet defense strategy for innocent defendants, especially ones being railroaded." I have long believed that some defense lawyers do a disservice to the innocent by defending them the same way they defend the guilty.
At the Friends of Duke University website, criticism of defense strategy is unwelcome (even after Collin Finnerty was convicted in the unrelated D.C. assault case).
The Duke defense has done some, but not all, things well. Examples: The motion to modify the gag order was compelling, but not publicizing the gag order was a mistake. Doing a survey of the jury pool was necessary and proper, but not making sure Mr. Nifong's wife (or sister) was not surveyed was a mistake.
Fortunately, there are other websites it which criticism and unwanted suggestions are not censored.
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.