Allen G. Breed is an AP National Writer. He wrote about the Duke case last April and just did it again. His early articles gave unmerited credence to the fatuous gang rape claim that has caused so much unwarranted anger, undeserved grief and undesirable expense to both the people of Durham County, North Carolina and the families and other supporters of the Duke Three. His latest article--"In Duke rape case, deep questions about prosecutor's discretion"--published on October 7 is progress for Mr. Breed, but not the mea culpa that would be appropriate. Instead of calling a hoax a hoax and castigating the false accuser and the politically opportunistic prosecutor, Mr. Breed portrayed the Duke case as problematic, but trial-worthy instead of a travesty of justice that resulted from prosecutorial abuse, should never have been initiated and should be dismissed immediately.
Mr. Breed began his latest article on the Duke case by acknowledging that a person who might have been expected to be well disposed to Mr. Nifong instead had called for his removal from the Duke case:
“His law school classmate Patricia McDonald, citing ‘an utter lack of evidence that a crime even occurred,’ wrote to Gov. Mike Easley and urged him to pressure Nifong into stepping aside in the Duke University lacrosse rape case.
"’Mr. Nifong has lost his moral compass despite his claim that he is a “committed advocate for the truth,”’ wrote McDonald, a former assistant in the Maryland Attorney General's office."
But Mr. Breed devoted more attention to the professed admiration for Mr. Nifong by a Durham attorney who would benefit from Mr. Nifong’s good will and suffer from his animosity (without mentioning that):
“That's not the Durham County district attorney whom John Bourlon knows.
“The criminal defense lawyer has faced off against Nifong hundreds of times over the past three decades. He's seen the prosecutor drop a weak case the day before trial.
“Despite the supposed flimsiness of the evidence in the Duke case, Bourlon keeps coming to the same conclusion:
“‘I'm CONVINCED he has something.’”
WHAT does he have? WHY are you “convinced,” Mr. Bourlon? Last April, assuming that Mr. Nifong had credible evidence of guilt was understandable. NOW believing that he does is delusional.
Mr. Breed appreciated that the Duke case involved race and class and tested the fairness of America’s judicial system, of course:
“Untold hours of television air time and countless drums of ink have been spent parsing what the Duke case -- with its three white, private-college defendants and the poor, black stripper who accused them -- says about race and class in our society.
“More recently, the question has been: What does the case say about the fairness of our justice system -- and the power of those who run it?”
Unfortunately, what it said is that young white Yankees from wealthy families can be wrongfully prosecuted for rape, just like the poor black “Scottsboro boys” were, and it can be politically beneficial (in the short-term) for a prosecutor not to polygraph either accuser or accused, to ignore evidence of innocence of the accused and evidence of the lack of credibility of the accuser and to pander to black votes who assumed (understandably) that a white prosecutor would not try to railroad the accused.
In the Tawana Brawley case, our justice system got it right: the grand jury refused to indict.
In the Duke case, however, the grand jury indicted, at Mr. Nifong’s request, and the case is pending and expected to be tried next spring.
Mr. Breed on the American legal system:
“If the American legal system is a machine, the prosecutor is the On/Off switch. The prosecutor decides whether a person should be charged with a crime and, if so, which among a wide array of statutes should be used. Ultimately, it's his choice whether to go to trial or drop the case.
“These are decisions, of course, that can upend a person's life, says Joshua Marquis, a vice president of the National District Attorneys Association. ‘Accusing a man of sexual misconduct ... is just about the worst scarlet letter you can paint on somebody. And there is enormous responsibility that comes with that.’"
Mr. Breed is right about the impact of a sexual misconduct accusation and prosecutorial discretion, but wrong insofar as he implies that a prosecutor has the right to take any case to trial.
There are checks on prosecutorial abuse: grand juries, judges and the authorities which authorize and supervise the practice of law. Grand juries can refuse to indict. Judges can dismiss a case instead of trying it. Lawyers (even prosecutors and judges) can be admonished, censured and even disbarred.
Mr. Breed briefly noted some of Mr. Nifong’s problems: “Nifong's critics say he has abused his discretion, prejudicing the case with unethically loose talk, stubbornly refusing to acknowledge contradictions in the accuser's statements and ignoring strong exculpatory evidence. The players' defense lawyers accuse Nifong of using the case to woo black voters in a tight election.”
Then Mr. Breed commiserated with a prosecutor who passes the buck to a judge and/or jury: “‘What happens if he decides, “I'm not going to present it to the grand jury. I'm going to play judge and jury, and these guys are going to walk”?’ says Charles M. Hatcher Jr., a former West Virginia prosecutor who successfully overcame a misconduct complaint. ‘Damned if he does and damned if he doesn't.’”
BUT, North Carolina law obligates a prosecutor to be a fair and impartial “minister of justice” and not to try every case what a complainant wants to be tried.
Mr. Breed conceded that Mr. Nifong’s conduct in the Duke case was incendiary:
“The particulars of the Duke case were an explosive mix to begin with:
Black accuser, white athletes. Southern town, walled campus. Racial epithets. Protest rallies. National media.
“Then Nifong lit the fuse.
“In the weeks following the March 13 party where the alleged rape occurred, Nifong referred to the players in interviews as ‘hooligans’ used to having ‘expensive lawyers’ get them out of trouble. He denounced the ‘blue wall of silence’ that had supposedly formed around the perpetrators and said DNA would reveal exactly who had committed the rape.”
DNA testing did not support a rape claim against anyone, but Mr. Nifong ignored that and charged on.
“Even after DNA tests failed to establish a link between the players and the woman, Nifong took the case to the grand jury, which returned indictments against three men: Dave Evans, Collin Finnerty and Reade Seligmann.”
That as an egregious abuse of prosecutorial power and discretion.
Mr. Breed: “Defense lawyers and bloggers have been picking apart his case ever since.”
It’s been easy!
MSNBC’s Dan Abrams and North Carolina’s Cash Michaels (among the precious few) obtained access to the documents Mr. Nifong produced in discovery, realized that those documents did not no support the charges Mr. Nifong had brought and on which grand jurors had indicted the Duke Three, and made that known to their viewers and/or readers. Neither man protects rapists, white or black. Each initially found the rape claim plausible, but followed the evidence and found evidence of innocence instead of guilt.
Mr. Breed did discuss some of the many insurmountable prosecution problems:
“The alleged victim -- a single mother who attends historically black North Carolina Central University -- has told at least a dozen different versions of her story, by one defense lawyer's count. Toxicology tests failed to show she was given a date-rape drug, as Nifong suggested in one article. Seligmann's attorney says Nifong refused to look at cell phone logs, ATM video and taxicab receipts that supposedly prove his client couldn't have committed the crime.
“Nifong's public statements ‘almost certainly’ violated a state bar rule that forbids prosecutors from making comments outside court that have ‘a substantial likelihood of heightening public condemnation of the accused,’ wrote K.C. Johnson on the Web log Durham-in-Wonderland.
"’Few prosecutors in history have publicized their case and condemned potential defendants as egregiously as Nifong did,’ wrote Johnson, a Brooklyn College constitutional history professor.
“Suggesting that Nifong was grasping at anything to keep his case alive, critics noted that the second dancer at the party allegedly changed her story after the prosecutor personally intervened to have her bail reduced in an old embezzlement case. Others faulted the supervising detective's 33-page report -- which was handed over to the defense four months after the alleged attack, and which contradicts what the rape nurse and others remembered about the accuser's early statements.
"’There is almost no evidence that could be construed as corroborating the alleged victim's accusations,’ says Rob Warden, director of Northwestern University Law Center on Wrongful Convictions. ‘The prosecutor appears to have acted precipitously, without due consideration of evidence to the contrary -- evidence that does not fit into their theory.’”
There is nothing for Mr. Nifong to grasp. None of the Duke Three raped Crystal Gail Mangum. Or kidnapped her. Or sexually offended her. Each charge is ludicrous and the nine charges combined are off the ludicrous scale.
Mr. Nifong is revising the story on which he obtained the indictments. He doesn’t believe Ms. Mangum either. He said she exaggerated by a factor of at least three and perhaps six when she claimed the raping lasting thirty minutes. His positiion: ten minutes tops, because there’s no way he can win otherwise.
He can’t win. Period.
He can prolong the nightmare for the Duke Three and their families and friends.
He might even get lucky and have a juror into jury nullification disregard the evidence and hang the jury.
But he can’t win.
And he should not have a chance: the case should be dismissed instead of tried and he should be removed by the Durham County voters.
Mr. Breed: “Chastened by the attacks, and by a judge's order to limit ‘extrajudicial’ comments, the 56-year-old prosecutor has ceased giving interviews, though he has used court appearances to rebut his critics.”
No, Mr. Breed. Mr. Nifong is arrogant, not chastened. Judge Kenneth Titus did him a great favor by issuing an order that neither the prosecution nor the defense had requested (at least in a writing filed with the court), limiting “extrajudicial” comments by both the prosecution and the defense lawyers and gagging potential witnesses, including the Duke Three. “60 Minutes” was on the case, that was bad news for Mr. Nifong, and gagging the potential witnesses might dissuade “60 Minutes” from doing a Duke case story or at least lessen the deterimental impact on Mr. Nifong and his chance for election.
Good News: On September 22, Judge Titus’s successor, Judge Osmond Smith, lifted the gag order and “60 Minutes” postponed its Duke case story until October 15 (still in plenty of time for the voters of Durham County to give the Duke case further consideration in deciding for whom to vote for district attorney).
“During a recent evidentiary hearing, Nifong shot to his feet when Evans' attorney Brad Bannon suggested that the prosecution had ‘very little evidence’ other than the accuser's word.
"‘Your honor,’ Nifong said, ‘I object to his characterization of my case.’”
I object to your prosecution of the Duke Three, Mr. Nifong. Mr. Bannon’s characterization was truthful. You should be truthful.
Mr. Breed reported this claim by Mr. Nifong on his campaign website:
"‘I have never understood why any prosecutor would try to gain an advantage at trial by concealing evidence from the defendant,’ he wrote, saying he began giving ‘open-file discovery’ to all defense attorneys 20 years before the state legislature required it.
"‘And that is why I have never had a conviction overturned for violating a defendant's right to discover the State's case against him."
How many months did it take for Mr. Nifong to produce Sergeant Mark Gottlieb’s statement? And how come that statement included descriptions of the alleged rapists that generally match the Duke Three, when the contemporaneous notes of Detective Himan as to how Ms. Mangum described her alleged rapists did not match Sergeant Gottlieb’s much later prepared statement (unsupported by contemporaneous notes) and none of the three descriptions noted by Detective Himan came close to fitting Collin Finnerty?
Notwithstanding all that (and more), Mr. Breed would not conclude that the prosecution of the Duke Three was a persecution:
“To believe that Nifong is blindly forging ahead with a bogus case simply to get elected to a job he had to be nudged into taking (he was appointed when a previous D.A. became a judge) goes against what colleagues and even courtroom adversaries have said about him: That he's fair and apolitical.
“Bourlon says Nifong, a former math teacher and social worker who went to work in the DA's office 28 years ago as an unpaid assistant, is not that kind of prosecutor.
“‘He doesn't hold cards back and play games,’ says Bourlon. ‘It's just not his way."
You really don’t think Mr. Nifong held back and played games with Sergeant Gottlieb’s statement, Mr. Breed?
Mr. Breed: Mr. Nifong “does dismiss cases; his office last year dropped 44 percent of all felony charges it filed, before they went to trial.”
That makes his continued persecution of the Duke Three WORSE.
Mr. Breed: “[T]he district attorney is under no ethical obligation to drop it ‘if he thinks the person is guilty.’”
If Mr. Nifong really believes that any of the Duke Three is guilt of any of the three felony charges on which he had each of them indicted, then he’s NOT a shameless political opportunist abusing his power: he’s INSANE!
In either case, he’s not fit to be a district attorney and the Durham County voters should end his tenure as district attorney by voting for Lewis Cheek, the viable Anybody But Nifong candidate (not a write-in candidate who would divide the anti-Nifong vote.
Mr. Breed called upon the man who prosecuted Kobe Bryant (a black out-of-stater) for an alleged rape under dubious circumstances at the behest of a local young blonde, despite ample reasonable doubt and at taxpaper expense (the taxpayers should not have footed any part of the cost of pursuing a civil claim against Mr. Bryant):
”After an indictment has been returned, it can be tough to walk away from a case, notes the prosecutor in another high-profile rape case, Mark Hurlbert of Eagle County, Colo., who brought charges against NBA star Kobe Bryant in 2003.
"‘Your ethical burden does not outweigh this feeling, that you put the time and effort into this case. You want to see it through,’ says Hurlbert, who dropped the charges against Bryant when the accuser, battered by defense leaks and media scrutiny, withdrew her cooperation.
“‘We were ready to go to trial,’says Hurlbert, who adds he hasn't seen anything yet that makes him think Nifong should drop his case or appoint a special prosecutor.”
Finally, Mr. Breed noted that North Carolina’s Democrat Governor, Michael Easley, “has no intention of asking Nifong to step aside, spokeswoman Sherri Johnson says.”
Why didn’t Mr. Breed call a hoax a hoax?
I read his earlier articles, searching for a reasons, and found two possibilities: he had fallen for the hoax and hyped the story, and he doesn’t like Duke lacrosse players and wanted the story to be true.
In "Alleged Duke rape case unveils scars of divided community"), published on April 2, Mr. Breed's theme was that "[t]he case seems to feed the stereotypes so perfectly."
"The men go to Duke University, the expensive private college with the championship sports teams. The woman studies across town at chronically underfunded and often overshadowed North Carolina Central University.
"The men are lacrosse jocks, many of them recruited from tony Northern prep schools. She's a 27-year-old divorced mother of two who went to the Duke students' house to do some exotic dancing and make a little extra money.
"It's so easy to see the incident at the shabby university-owned house -- just a mile from the iconic Gothic Duke Chapel -- in terms of powerlessness and privilege, black and white. Many on campus and in the working-class area surrounding it are framing it just that way."
Mr. Breed reported that the gang rape claim evoked more than a desire for justice: "'I think along with the awfulness of the incident has come a real desire to condemn a lot of the Duke students because they are people of privilege, maybe,' Durham resident Paul Montgomery said."
In addition, Mr. Breed briefly explained the circumstances that inflamed passion and suppressed reason:
"The house where the alleged rape took place is on the edge of Walltown, a predominantly black and poor neighborhood, where many residents call Duke 'the plantation.'
"On the night of March 13, a woman says she and a partner went to the house at 610 N. Buchanan Blvd. expecting to entertain a bachelor party of five, but that they found themselves surrounded by more than 40 drunken men barking racial slurs.
"She told police she and her friend left the house. Jason Bissey was smoking a cigarette on the front porch next door and said he heard some of the party demand a refund.
"He heard one shout, 'Hey . . . thank your grandpa for my nice cotton shirt.'
"Someone coaxed the women back inside. It was then, the woman says, that she was dragged into a bathroom and raped, beaten and choked by three men for a half hour."
Mr. Breed declared that "[a]ll over town, there is a sense that battle lines have been drawn" and cited some evidence: "Protesters have marched almost daily, banging pots and pans outside the white house and demonstrating in front of Provost Peter Lange's home. Signs alternately condemning and supporting the players have appeared and disappeared from the players' now-vacant house."
The newsworthiness of the house being white was not explained.
On April 7, Mr. Breed wrote a hit piece on the Duke men's lacrosse team ("Duke lacrosse team called school's only real frat") :
"At Duke University, they like to say there's only one real fraternity on campus: LAX, shorthand for lacrosse.
"Long before the university was rocked by allegations that lacrosse players raped a stripper during an off-campus party March 14, Duke's highly ranked team had a reputation for swagger and a powerful sense of entitlement.
"Now administrators are starting to wonder whether they put up with it for too long.
"'Taken as a group, is there a special history of bad behavior with this team?' Duke President Richard H. Brodhead said Wednesday in announcing the resignation of the coach, the cancellation of the rest of the season and the opening of an internal investigation.
"A black stripper who was hired to perform at a team party has charged that three white players choked and raped her in a bathroom in the early morning hours of March 14. Witnesses said she was also taunted with racial slurs.
"No arrests have been made; police are awaiting DNA test results on the team members. The team's captains have acknowledged hiring a stripper and allowing underage drinking, but have denied any rape occurred.
"Even before the scandal, the nearly all-white team had come to personify an arrogant elite on this privileged campus, a collection of Gothic-style buildings dominating the landscape of this working- class city almost evenly divided between black and white.
"Nearly a third of the team's 47 members have been charged in recent years with offenses such as disorderly conduct and public urination.
"Neighbors have described the leased single-story white home where the alleged attack took place as a kind of "Animal House." A rusted tin shed out back is spray-painted with players' nicknames and jersey numbers, and a primitive white painting of a lacrosse player adorns the roof.
"Peter Wood, a professor of Native American history who was captain of the Harvard and Oxford University lacrosse teams, said he complained two years ago about coach Mike Pressler's decision to order practice on a weekday morning that conflicted with his class. He also has had problems with team members signing in, then ducking out of class."
Not a good word about a lacrosse player.
On April 8, in "Lawyers for Duke players heat up rhetoric," Mr. Breed criticized the defense attorneys for defending their clients (which is what defense lawyers are supposed to do, especially when they are being railroaded):
"Not content to wait for the results of DNA tests, attorneys representing members of the Duke University lacrosse team are increasingly pointing to other evidence they say will clear their clients of allegations that three players raped an exotic dancer.
"Durham attorney Kerry Sutton contended Friday, for example, that numerous e-mails written in the hours after the woman said she was attacked at a house just off the Duke campus also bolster the players' claims that nothing happened that night. She declined to make those e-mails available.
"Sutton, who represents team co-captain Matt Zash, said she believed the woman fabricated her story and 'quickly got in over her head with the story she's telling.'
"Officials are awaiting the results of DNA testing on 46 of the team's 47 members. Because the woman said her attackers were white, the sole black player was not tested.
"Defense attorneys have also raised suspicions about a 911 call that came in just minutes after the attack was said to have occurred from a black woman who claimed someone at the party shouted racial slurs at her and a friend.
"Joe Cheshire, who represents co-captain Dave Evans, told reporters he is certain the call was made by the second dancer, whose identity has not yet surfaced publicly. The caller alternatively told a police dispatcher the pair were driving and walking past the house.
"And while a third of the lacrosse team has been charged in recent years with alcohol possession and disorderly conduct, the woman making the accusations also has a criminal past.
"In June 2002, police records show, she stole the taxi of a man to whom she was giving a lap dance at a Durham strip club. The records say she led a sheriff's deputy on a winding chase at speeds of up to 70 mph, and tried to run him down as he approached the cab on foot.
"The woman, a divorced mother of two, pleaded guilty to misdemeanor counts of larceny, speeding to elude arrest, assault on a government official and driving while impaired. She was sentenced to three consecutive weekends in jail and two years' probation.
"Durham attorney Woody Vann, who represented the woman during that incident, said she made a mistake four years ago and completed her punishment. The woman has not returned several messages left by The Associated Press at her home in the past several days.
"'She is keeping a very low profile,' said Vann, who is not representing the woman now but has had some contact with her in recent days.
"Some have taken issue at what they perceive as attempts to smear a victim of a heinous crime.
"'I'm repelled and repulsed by those trying to equate her with Tawana Brawley of decades ago,' said city council member Howard Clement III, referring to the 15-year-old black girl whose 1987 claims of being kidnapped and raped by police proved to be false. 'That's awful. And, that just compounds the evil of this whole process.'"
BUT, Councilman Clement, Crystal Gail Mangum's kidnapping and rape claim IS false (and she was twelve years older than Tawana Brawley was when she made her false claims).
On April 11, in "DNA said to clear players," Mr. Breed reported that THE DEFENSE was trying to poison the jury pool! He quoted that Colorado man who prosecuted Kobe Bryant for rape and finally dropped the case attacking the defense attorneys:
"By releasing embarrassing details about the stripper who claims she was raped at a party held by Duke University's lacrosse team, the players' attorneys are employing the same strategy used successfully to defend NBA star Kobe Bryant against rape charges: publicly attack the accuser's credibility.
"'This is what the defense does, is try to smear the victim in the public and make it impossible to get a jury,' said Eagle County, Colo., District Attorney Mark Hurlbert, who charged Bryant.
"While prosecutor Mike Nifong has said he doesn't need DNA evidence to bring a case, defense attorneys have stepped up efforts to portray the accuser as a liar.
"Over the weekend, they told reporters that photos taken at the party show the woman was injured even before she arrived, and impaired, too. And they have suggested that the woman's criminal past undermines her credibility.
"They pointed to a June 2002 incident in which the alleged victim stole the taxi of a man to whom she was giving a lap dance at a Durham strip club. Court records say she led a sheriff's deputy on a winding chase at up to 70 mph, and tried to run him down as he approached the cab.
"She pleaded guilty to misdemeanor counts of larceny, speeding to elude arrest, assault on a government official and driving while impaired, and spent some weekends in jail.
"Hurlbert called the defense strategy of releasing details about the case 'a disservice to justice.' He dropped charges in 2004 against Bryant after months of embarrassing reports about the accuser's personal life led her to stop cooperating.
"Hurlbert is just as critical of Nifong, saying he should have waited for more evidence before declaring his confidence that a rape had occurred."
Mr. Hulbert had a point about Mr. Nifong, of course, but dissing the defense for providing truthful information about the unfortunate accuser was despicable and media coverage like Mr. Breed's own hit piece on the lacrosse team made it imperative for the defense to combat the unwarranted felony charges in the media as well as in court.
On April 16, in "Rape case creating racial tensions in Durham,” Mr. Breed reported that "after a month of intense media scrutiny, it's hard to tell whether the coverage has shone a spotlight on existing racial tensions in Durham or is creating those tensions" and tried to explain some black suspicion that Durham justice is biased in favor of whites and against blacks when blacks are mostly in charge in Durham:
"Mayor Bill Bell is black. So are Police Chief Steven W. Chalmers, City Manager Patrick Baker and a majority of the City Council. Durham's population is almost as black as it is white.
"So why is it that some blacks like Preston Bizzell, a 61-year- old Air Force veteran who said he's never experienced racism in his 30 years in Durham, believe justice here is swifter and harsher for a black man than a white one?"
One reason Mr. Breed cited was Reverend Jesse Jackson's take on the situation:
"[I]n a recent interview with The Associated Press, the Rev. Jesse Jackson said history can't help but loom large over this case. It is particularly horrible because these white men hired black women to strip for them.
"'That fantasy's as old as slave masters impregnating young slave girls,' he said."
Ironically, white or Hispanic strippers had been requested, so Reverend Jackson was exacerbating racial tensions by misrepresenting (hopefully innocently) facts.
Mr. Breed suggested that:
"[Defense attorney Joseph] Cheshire found Jackson's comment odd, since the lacrosse players did not specifically ask for black strippers.
"'There is no slave-master mentality here, and that's just another perfect example of ... self-absorbed race pandering,' Cheshire said."
Reverend Al Sharpton was asked NOT to come, Mr. Breed noted:
"Sharpton had planned to attend a rally outside the party house this Sunday but canceled after its organizer asked him to stay away for now.
"'We don't want our good to be turned into a racial issue,' said Bishop John Bennett of the Church of the Apostolic Revival International. 'I just think his coming may stir some people up.'"
Mr. Breed reported Mayor Bell's confidence in the good sense of Durhamites:
"There has been speculation of violence should no one be charged. Bell calls that expectation another sign of bias, recalling that last summer, when three seven-foot crosses were burned around town, whites and blacks came together to denounce the acts.
"Bell arrived in Durham in 1968, the week the Rev. Martin Luther King Jr. was assassinated. He said the city was an oasis of calm and civility during that crisis.
"'We did not have the looting, the burning, the rioting,' he said. And today, no matter what happens in the Duke lacrosse case, 'I have no fear of that.''
Ironically, it is a white man (District Attorney Michael B. Nifong) who eventually played the race card shamelessly.
Mr. Breed reported on an event that highlighted Mr. Nifong's opportunity to snatch victory from the jaws of defeat in the then upcoming primary"
"At a forum last week on the Central campus, a vocal, mostly black crowd peppered District Attorney Mike Nifong with questions about why no one has been charged and why the FBI has not been called in to help investigate this as a hate crime.
"Joe Cheshire, who represents one of the team captains, characterized much of what was said as, 'We black people are mistreated by the criminal justice system, so what we need to do now is go out and mistreat white people.'"
It’s bad enough that some people think that way.
It’s much worse that a prosecutor panders to them. THAT must be intolerable.
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.