Duke Case: Duke Geology Prof Throws Rocks At Duke Three
With Durham County, North Carolina District Attorney Michael D. Nifong elected with less than half the votes cast in a very divisive (and especially racially divisive) election, the Duke case remains on course for trial next year, unless a pretrial motion to dismiss is made and granted, and in Durham, unless a change of venue motion is made and granted.
Why did Thomas Crowley, a Duke University geology professor, recently not only object to pre-trial dismissal, but also blithely ignore pertinent facts and law requiring it and instead spread misinformation (in conclusory terms), offer excuses for Mr. Nifong and accuser Crystal Gail Mangum and speculate wildly that the Duke Three and their attorneys are the villains in the Duke case?
On November 12, this letter by Professor Crowley was published in The Herald Sun under the heading "Don't be too quick to toss lacrosse case":
"I am surprised at the number of letter writers to your paper who, although they have no legal qualifications, seem to assume they have sufficient knowledge about the Duke lacrosse case to conclude that the case should be thrown out before even it goes to trial. I don’t know what happened that night with respect to these students and that woman, but I do know that the following items about the case that would lead one to hesitate before throwing out the case.
The Duke lacrosse players were no angels – they had a previously established history of rowdiness tarnished with racial comments, and one of the accused had been previously arrested for anti-gay comments while drunk.
[Note to Professor Crowley: Were you deliberately aiming to suggest that the Duke Three must be guilty of kidnapping, rape and sexual assault because OTHER lacrosse players were "no angels" and "had a previously established history of rowdiness tarnished with racial comments? Or was the guilt-by-association insinuation unintentional. To the best of my knowledge, information and belief, NONE of the accused ever was arrested for "anti-gay comments while drunk." One of them was arrested and wrongfully convicted of simple assault as a result of having been wrongly indicted in Durham. For information about that case, please see my article titled "Collin Finnerty's D.C. Assault Conviction Is The Disgrace" (www.theconservativevoice.com/article/16107.html).] Do you REALLY think that the D.C. incident is evidence of guilt on any of the charges pending in Durham?]
Why are photographs available before and after the alleged event, but not during it? Is it possible that photographer did not want to document what was happening during that time?
[Note to Professor Crowley: Is there any evidence to support your suggestion that the "photographer did not want to document what was happening during that time"? Or is that sheer speculation? The photographer could not take photographs of an "event" that did NOT occur, of course.]
Why was the woman sober when she arrived and staggering to the point of passing out a mere 30 minutes later? Was she possibly drugged by someone when they encouraged her to have a drink? If so, what were their motives?
[Note to Professor Crowley: Did you miss the news that the toxicology report came back negative? Or just throw out the drugging suggestion anyway?]
"The accuser has in turn been accused of misleading statements about what happened and how long it took. Of course, some of this could be intentional deception, but it could also reflect the alcohol (and drugs?) and the stress and distortion that came with anxiety and terror. It is very common for people to distort time when they are being traumatized, whether they had a drink or not.
[Note to Professor Crowley: "Misleading" and contradictory are NOT synonymous. How common is it for a genuine rape victim not to be sure she was raped, and not to know whether it was by three or twenty?]
"District Attorney Mike Nifong has also been roundly criticized. I agree his statements at NCCU were inappropriate, but his statements to the media at the beginning of the case were open to interpretation about motives. I think many people might have felt totally off guard and swept away but the tidal wave of media attention that so quickly came down after the case was publicized. I am hesitant to be totally critical of Nifong’s response because I could not say for sure if I too might have been swept away by all that was happening.
[Note to Professor Crowley: Professional misconduct is far worse than "inappropriate."]
"But Nifong learned his lesson and kept mum since then. By contrast, the defense lawyers continue to make inappropriate public comments about the accuser to the point of blackening her name to set the potential jurors. These lawyers are continuing to manipulate the law and the public, yet they are being criticized by virtually no one.
[Note to Professor Crowley: You claimed that "the defense lawyers continue to make inappropriate public comments about the accuser to the point of blackening her name to set the potential jurors." Putting aside the garble, what were the "inappropriate public comments" by "the defense lawyers"? It's not inappropriate for you to mention arrests of lacrosse players or for defense lawyers to cite Ms. Mangum's criminal history. Each is a matter of public record. If a defense lawyer REALLY made an inappropriate remark, I'd like to know. So far it seems to me that critics of the Duke Three make the claim without citing any evidence and, to me, THAT'S INAPPROPRIATE. As for your choice of "blackening" to describe what you claim that defense lawyers tried to do to the name of Ms. Mangum, who is black, not funny.]]
"And there is a well-oiled PR machine by some Duke advocates that is contributing to this confusion and sullying the name of the university by assuming they too know what the final answer is.
"As stated before, I do not know what happened that night. I have no preconditioned preference for whether the accused were guilty or not.
"If not, so be it. If so, so be that too. But, I most certainly do not think the case should be thrown out just because some half baked and half true legal opinions by people who don’t know what they are talking about, and by a group of lawyers and advocates who seem to be doing their best to confuse the public."
Liestoppers, a group of people who came together to expose such false and hateful speech masquerading as thoughtful analysis, quickly rebutted in a powerful piece titled "Crowley's Full of Hot Air," stating:
"In an exercise of extreme hypocrisy, Duke University Geology Professor, Thomas Crowley, pens a guest column for the Herald Sun bemoaning the 'half baked and half true' opinions of people with no legal qualifications who 'don’t know what they are talking about' yet question the validity of the Duke Hoax persecution. Perhaps feeling neglected from his five minutes of Hoax fame, Professor Crowley adds his own fully baked and almost fully untrue assessment of why the Hoax should persist."
To be sure, Professor Crowley's missive reflected extreme hypocrisy, but, more importantly, it utterly ignored the basis upon which the Duke case can and should be dismissed as a matter of law.
North Carolina General Statutes Section 15A-954(a)(4) states: “The court on motion of the defendant must dismiss the charges stated in a criminal proceeding if it determines that…[t]he defendant’s constitutional rights have been flagrantly violated and there is such irreparable prejudice to the defendant’s preparation of his case that there is no remedy but to dismiss the prosecution.”
The Duke Three's constitutional rights to due process and equal protection rights were flagrantly violated and the Duke Three have been irreparably prejudiced: but for the violations, they would not have been indicted.
The procedure used to pick the Duke Three as defendants was a travesty, as Duke University Professor James Coleman (a LAW professor, not a geology professor) thoroughly explained.
But for the tainted identification, none of the Duke Three would have been indicted.
In his motion to suppress on behalf of Reade Seligmann, attorney Kirk Osborn invoked "Chapter 15A of the North Carolina General Statutes, the Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States and Article I, § § 19 and 23 of the Constitution of North Carolina, to suppress evidence of the alleged identification of [Reade] by Crystal Gail Mangum, to suppress any future in-court identifications and to suppress any other evidence whatsoever based thereon."
The motion to suppress is well founded and should have been granted long ago instead of deferred during discovery.
Without the tainted identification or a future in-court identification, there is nothing on which to proceed against Reade. (When the motion to suppress was made, Mr. Nifong had not produced his evidence to the defense. Since then, he produced thousands of page and more, but he did not produce evidence of guilt, much less identify anyone to substantiate Ms. Mangum's gang rape claim and, as a lawyer knows (or should know) but Professor Crowley apparently does not, speculation is not a satisfactory substitute for evidence.
Each of the Duke Three is entitled to pre-trial dismissal. In the cases of Reade's co-defendants, Collin Finnerty and David Evans, the same tainted identification procedure was used and there is nothing on which to proceed against them either.
Liestoppers continued:
"While the geology professor interjects himself into the debate by condemning other commentators' lack of knowledge, he most clearly reveals his own. Most hypocritically, Crowley condemns those with no legal qualifications for expressing opinions and then proceeds to present arguments that not only contradict factual items that have been revealed but also that appear to directly argue against many of the conclusions drawn by fellow faculty member, Duke Law Professor James Coleman.
"Months after the Coleman report found that there was no history of racist behavior among the team, Professor Crowley chooses to perpetuate this fallacy, while ironically accusing others of 'doing their best to confuse the public.' Contrary to Professor Crowley’s deception, the Coleman report found:
'None of the misconduct involved fighting, sexual assault or harassment, or racist slurs.' There was no evidence 'that the cohesiveness of this group is either racist or sexist.'
"Bizarrely, Professor Crowley revives, several months after it has been debunked by scientific hair analysis, the suggestion that a date rape drug may have been employed. Curiously, his fully baked suggestion comes in the wake of the latest confirmation that random blackouts were common occurrences for the accuser.
'Days before a woman said Duke University lacrosse players raped and beat her, she was passed out cold at a Hillsborough strip club and had to be carried to the parking lot, according to the club's former manager.
'In that gravel parking lot on the night of March 11, the four people carrying the woman accidentally dropped her, said Yolanda Haynes, the club's former manager.
'Haynes' account of that night at the club offers a possible explanation for the scratches doctors would later note on the accuser's body. The story adds potential ammunition for the lacrosse players' lawyers who say the allegations of rape are lies. The account also describes behavior, including incoherence and unconsciousness, that is consistent with how the woman was acting the night of the lacrosse party.” [News & Observer]
"Further demonstrating his ignorance, Crowley attempts to absolve DA Nifong of his numerous violations of the State Bar’s prohibition against a prosecutor making extra judicial statements, by offering that Nifong's motives may be 'open to interpretation.' Perhaps Duke Law Professor James Coleman missed that clarification in the State Bar rules when informing us the statements, which Crowley attempts to justify, instead demonstrate misconduct grave enough to offer grounds for appeal.
'During the segment, James Coleman, a Duke University law professor, said he thought Nifong had committed prosecutorial misconduct by speaking out before charges were filed.'
'If this case resulted in a conviction, I think there would be a basis to have the conviction thrown out based on misconduct,' Coleman said. [News & Observer]
"Crowley continues to prove his own lack of qualifications to opine on the Hoax by wondering why the defense team is not criticized for fulfilling their legal obligation, as described in State Bar rules, to 'make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client.' Rather than recognizing this obligation to protect their clients, Crowley, a geology professor, instead chooses to falsely accuse the defense attorneys of manipulating the law.
"Although he has no legal qualifications and obviously little knowledge about the facts of the case, Professor Crowley finds it his place to offer public opinions, suggestions, suppositions, and even accusations that contradict, not only facts that are readily available to him if he chose to educate himself, but also countless legal experts with far greater expertise than that offered by his multiple Geology degrees.
"Perhaps the good Professor will excuse us if we consider the opinions of Duke Law Professor Coleman just a bit higher than his own. While Professor Crowley's lack of legal qualifications, and obvious absence of relevant knowledge, may not offer credibility in this discussion, his extensive climate studies may explain why he is so comfortable presenting an argument so full of hot air."
I appreciate Liestoppers' regular efforts to inject humor into the tragedy that is the Duke case, but I must take exception to characterizing Professor Crowley's obviously carefully chosen words as "hot air," or empty talk.
Yes, it was funny (unlike Professor Crowley's use of the word "blacken"). But Professor Crowley's words are poisonous, not innocuous.
The Duke case should be dismissed as soon as possible, not prolonged.
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.
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