The Duke case is in a relatively quiet period between court conferences that allows posters to debate whether things could have been handled better.
Durham County, North Carolina District Attorney Michael B. Nifong won his political bet: by shamelessly playing the race card: he transformed himself into a champion of Durham County's Black community and that permitted him to win both the Democrat primary and the general election, each time with only
a plurality of the votes cast.
It's a safe bet that Mr. Nifong's fellow Democrats, North Carolina Governor Michael Easley and North Carolina Attorney General Roy Cooper, will not dare to risk antagonizing the Black block vote on which each of them depends by challenging Mr. Nifong's horrific handling of the Duke case.
Kirk Osborn, an attorney representing Reade Seligmann, boldly moved long ago to have Mr. Nifong removed from the Duke case, for good cause, but Judge Stephens, for whom Mr. Nifong had worked, and then Judge Titus, who on July 17 issued on his own initiative an unconstitutional gag order that the North Carolina NAACP wanted but lacked standing to seek, set aside that (and other well-founded) motions and let Mr. Nifong proceed with the discovery phase of the Duke case.
Fortunately, Judge Osborn Smith finally took over the Duke case and lifted that gag order, thereby facilitating the "60 Minutes" expose on the Duke case. But, given the failure of his two predecessors on the case to act on that removal motion, it may be too much to hope that he will dust it off and grant it.
So, "60 Minutes" will do a follow up (in part to defend the late Ed Bradley against the ludicrous charge that he was manipulated in his final illness for the sake of the Duke Three) and the defense lawyers will see the wisdom of making a well-founded motion to dismiss. (The North Carolina Criminal Procedure Act mandates that, on motion at any time, the court "must dismiss the charges stated in a criminal pleading 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.")
These days, posters at the Friends of Duke University website are debating whether the Duke Three's plight is attributable to their failure to follow the advice of their lawyers. (I have not been part of the debate, but the case that the Duke Three should not be blamed has been ably presented and I associate myself with the view that the lacrosse players were right to give DNA samples pursuant to court order instead of to paint themselves as guilty by appealing.)
"Duke10 Mom" lamented that all the white lacrosse players gave DNA samples instead of fighting in court not to do so:
"This is all 20/20 hindsight, but if the players had fought the overly broad DNA order, the appeal would have taken many months (in Durham, probably years!). Plus, Nifong did not have the evidence to support it. (He only went for the 3rd ID because he KNEW the DNA didn't pan out.) By that time the primary would have come and gone and Nifong would have been defeated.
Yes, it would have looked like they were guilty initially but the case would have gone away.
"I think that defense attorney (Thomas? Ekstrand?) made a very bad decision there. Of course, everyone assumed Nifong's word was his bond. But the defense attorneys should have known better, imo."
I doubt it.
The tide began to turn in the courtroom of public opinion because the lacrosse players did not flinch when it came to providing DNA samples.
See the June 26 issue of Newsweek, with the words "DUKE: SHOULD THE CASE BE DROPPED?" at the top of the cover and these words inside: "THE PROSECUTOR INSISTS HIS RAPE CASE IS STRONG. ONE BIG PROBLEM: THE FACTS THUS FAR.".
The Duke case article began by reporting a choice that did the entire Duke lacrosse team proud (unlike the choice of "entertainment" for that infamous party last March): "The order had come, signed by a judge, requiring that the Duke lacrosse team give DNA samples. The prosecutor was trying to identify the three players who had allegedly raped an exotic dancer at the house rented by three of the team's co-captains on the night of March 13-14. All 47 players had gathered in a classroom near the lacrosse field to hear their lawyer, Bob Ekstrand, tell them what they needed to do. Ekstrand was about to tell the players that they could appeal the order as 'overbroad,' too sweeping in its scope, when the players got up and started heading for their cars to drive downtown to the police station. (The team's one black player was not required to go; the accuser, who is black, claimed her attackers were white.)"
If the players had appealed the order immediately, Mr. Nifong would have postured even more outrageously and won the Democrat primary by a bigger margin.
"dukeparent2x"'s position: "The fact that the boys all willingly gave their DNA allowed the entire nation to begin questioning these charges. That and the fact that they were not claiming 'consensual sex.' We all know the media was spinning this from day one. Every media outlet, every 'expert' analyst, was able to pick and choose the evidence they wanted to prove their point (and most believed a rape had occurred.) If the boys had followed the lawyers' advice and refused to give DNA, that would only have convinced even those who were skeptical of the charges. That strategy would have worked in a case with little publicity--but not in one like this where they were convicted by the media before any facts were out."
"dukeparent2x' is right about the lacrosse players helping themselves immensely in the courtroom of public opinion by behaving like innocent young men instead of trapped rats.
BUT, as a matter of law, the players gave their DNA not as volunteers but pursuant to a court order that, in my view, was issued in violation of their constitutional rights. That can be used to buttress a pre-trial motion to dismiss.
"WJDinNJ" blames the plight of the Duke Three on their rejecting legal advice: "One important point that [Brooklyn College Professor Robert] KC [Johnson] made 'This nightmare never would have happened if we had proper legal representation earlier'. I think this was key, but when the student were advised to appeal the order to surrender, samples, for DNA testing, that also gave Nifong the go light. PC Brodhead should have advised the LAX players to follow the advice of their lawyers, that is why lawyers are hired, to advise their clients. Unfortunately the LAX players ignored their lawyers and followed the advice of DA Nifong. Just let us take samples for DNA testing and that will exonerate any and all that are NOT GUILTY. Even after that fatal decision by the LAX players, PC Broadhead could have at least used the negative results, of the test, to support the LAX team. PC Brodhead has made to many leadership errors, Duke University, deserves a more talented leader in that position."
BUT, the DNA test results were negative! Those results help the defense, not the prosecution. AND they were obtained as a result of an unconstitutional order, because there was not probably cause to order any one of the 46 players to give a DNA sample, much less all of them, and that can be used to buttress a motion to dismiss on constitutional grounds.
"duke09 parent" gets it:
"WJD I really disagree with you on that one. The fact that all the players were eager to give DNA samples and the negative results were key in turning around public perception of their true innocence. Had there been a delay, or an attempt to fight the order as overly broad, more people would have thought they were trying to hide something.
"I don't see how the lack of early legal representation actually harmed them. It could have been harmful, since the interviews clearly weren't privileged, but hasn't turned out to be."
What has harmed the Duke Three are (1) false accusations against them, (2) violations of their constitutional rights in the course of investigation, (3) prosecutorial misconduct and...(4) the perception, fair or unfair, that lacrosse players behaved not as innocents falsely accused, but as young men hiding misconduct from underage drinking and excess noise up to and including gang rape, buttressing the conspiracy of silence canard.
"WJDin NJ": "Had the LAX players followed the advice of the lawyers and the judge agreed then that would have delayed the process. Nifong would then have to have the hoaxer, pick out the suspects first. Perhaps, had that happened, with negative DNA, results, Nifong, probably would have looked at three more and so on, until he went through the whole team. All with the same negative, DNA, results. Would a judge actually support this of investigative activity. All these actions would have even created more doubt on the whole case. This action may also have change this from a short flimsy investigation into a longer more thorough investigation. This activity would have made the hoaxer look like a hoaxer, early on, because she would of had more contact with DPD and Nifong, perhaps she would be facing charges now and not the three players. This action also probably would have pushed and indictments past the May primaries and we wouldn't even be discussing DA Mike Knifing. In the end, all the evidence would be as it is now, so all that would have happened is a delay in the court of public opinion and perhaps no indictments."
Would that it would have been so, "WJDinNJ." But we are talking about an investigation in that Wonderland known officially as Durham in which Mr. Nifong decided to make himself lead investigator, for obvious reasons, and a situation that the biased mainstream media and powers that be in Durham were determined to play as poor local black girl v. wealthy white gang rapists from the North. Mr. Nifong would have succeeded in indicting any white lacrosse player he decided to indict.
"duke09parent" explained it well to "WJDinNJ":
"Again I disagree. Nifong couldn't likely have gone through the whole team if the ID justified the DNA testing. But he would have had his lottery winners anyway and could have said the same junk (old fashioned way of proof without dna, I believe the accuser, blah, blah blah). Nifong and the potbangers were both saying there was a conspiracy of silence on the team, a notion that Ruth Sheehan bought into. Remember her, 'We know you know,' b.s.? Fighting the DNA order would have fed into that tactic of Nifong and he would have played that to the hilt, too.
"Once the facts of how it all played out came out, the DNA tests helped. Remember the Newsweek turnaround article led with the story of all of the guys leaving the meeting about the DNA order with no hesitancy about going for the tests. They believed in each other; they knew there was no sex."
"I feel that surrendering their DNA early was consistent with what innocent boys would do, and it was another thing that firmly made up my mind that the team, all of them, were completely, guilelessly INNOCENT of the charges leveled against them.
"I do not think that they needed to 'lawyer up' as they knew that there was nothing to the accusation, and they felt that any reasonable person would reach the same conclusion. No, Nifong is not reasonable. But, the boys must have thought that Duke was being represented by reasonable, rational, intelligent, educated people who 'had their back' and who surely would see how 'transparent' the accuser's claim was after the captains and the team spent hours TELLING the administration what happened! How disappointed and SHOCKED they must have been when the Georgetown Game was canceled. And then, the snowball of unfounded rumors, hype, and punishment gathered momentum!
"And yes, in the early days people did realize the guys were innocent. If I sitting at home reading the H-S (despite its bias against the boys) REALIZED almost within two days that it was a HOAX, then surely the administrators who had a posteriori knowledge did, too!
"As soon as I heard about the call, made at one am in the morning by the passers-by who said racial slurs had been yelled at them as they strolled by the 'frat house,' I knew there was a 'lie' and a 'set-up' underway.
"How did I know this? Well, no girls stroll by there, on that street at one in the morning during spring break. At one point, the caller said they were driving and the next instant she said they were walking. Then, she identified it as a 'frat house or something' with boys sitting on the wall across the street and she gave the number of the house. How would she know the number of the house if she were driving by? (And the number is not even visible, we learned early on.) Secondly, I did not believe that white guys from Duke were assembled out there and would yell at two innocent black girls as they walked by in the wee hours of the morning. And thirdly, the police arrived two minutes after the call, and the girls were not there and the house was SILENT. ( Also, the 911 caller would not identify herself!)
"So, right away a person with any modicum of intelligence would know something about this 'passerby's' story was false! And, if one thing is false on the 911 call, other things may be false too! This caller obviously wanted that house's residents to get in trouble with the police. It was a set up.
"What bothered me in the following weeks is that on TV, I would see people like Dr. Bowdon ( sp.?), the pathologist, on Fox News and others say that the fact that these 'independent sources-- these passersby' had reported the bad behavior, too, meant that it occurred! In other words, Kim's little prank phone call HELPED set up the accuser's prank accusation, an hour later.
"So, whether on purpose or just accidentally Kim's report on the n-word helped 'the snowball of racial tension' that is what propelled this case forward!
"Why I fault the administration is that I think the administration of Duke should be smarter than I am!! If a housewife reading the news can figure it all out rather quickly, then what is wrong with the scholarly heads of one of the five greatest schools in the nation? I simply cannot believe that they are not brighter than I. So, if indeed they are brighter than 'your humble hausfrau-- MOI', then it must be they deliberately CHOSE to side with the prostitute and the black community of her supporters over their own students and Duke's best interests. So, if these Duke administrators are not as dumb as they seem, then they must be dishonest. So, again, I ask, 'Why would Duke want to keep such a type on the payroll in leadership positions?'"
Ironically, the decision NOT to appeal the order to provide DNA samples immediately gave the Duke Three great advantages that ultimately will help them prevail against a persecution under the auspices of a petty tyrant: (1) the results themselves, which support the defense; (2) the violation of their constitutional rights in requiring the DANA samples without probable cause, (3) the opportunity to APPEAR TO BE INNOCENT in the courtroom of public opinion when the biased mainstream media was in what now Justice Clarence Thomas might call "hi tech lynching" mode and (4) the results forced the prosecution to commit MORE violations of the Duke Three's constitutional rights in its rush to indict some white guys.
Be glad that the framers are inept: if the framing been better done, those framed would be far worse off than the Duke Three, each of whom did what their accuser, Crystal Gail Mangum, has not done: passed a polygraph test! If the charge had been attempted rape instead of rape, it would be worse for the defense.
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.