Excerpt from May 19, 2006 Fox News report on the Duke case titled "Duke Rape Suspect Silent in Court" (a title erroneously assuming that there had been a rape):
"Defense lawyers have complained that Nifong has been unwilling to see or hear evidence that may help exonerate their clients.
"An expected discussion about discovery had been made moot before the hearing when Nifong provided the defense with a copy of his entire case file....
"'The state is not aware of any additional material or information which may be exculpatory in nature with respect to the defendant,' Nifong wrote in a court filing."
It was even worse than the defense lawyers may have suspected: Mr. Nifong not only would not receive evidence from them favorable to their clients (a willful blindness rendering him unfit to be a district attorney), but his written representation was false: it became undisputed on December 15, 2006 that Mr. Nifong himself was aware of exculpatory material and had arranged for it to be withheld from the defense!
Litigation can be exasperating for honorable lawyers, and even more so for their innocent clients and those clients' families and friends, especially honorable non-lawyers.
Dr. William Anderson, a champion of the innocent defendants in the Duke case, closely followed the December 15 court conference in the case and posted this candid comment on the Liestoppers message board:
"What sickens me is that the judge is even taking any of Nifong's charges seriously. This man owes Nifong nothing, and yet he still is treating him as though he has credibility. It clearly does not take a law degree for someone to understand that the ID process was rigged and highly illegal. It does not take a law degree to understand that this is a case where DNA clearly matters.
"Nifong declared early on that since he did not want DNA to be a factor if it went against his 'theory,' that therefore DNA should not be dealt with at all. Why a judge even begins to go along with this nonsense is beyond me. Nifong has given him the bullcrap answer regarding the withholding of evidence as not wanting to impede upon the privacy of non-indicted lacrosse players. This is after he called them hooligans, after the infamous wanted 'crimestoppers' poster, and after the 'wall of silence' threats.
"What more does the defense have to do in the State of North Carolina to convince a judge that a lie is a lie is a lie?"
Bill, I firmly believe that the defense has convinced Judge Osmond Smith not only that "a lie is a lie is a lie," but that the charges in the Duke case are bogus, Durham County, North Carolina District Attorney Michael B. Nifong has engaged in egregious prosecutorial abuse that eventually will put an end to his legal career and that he (Judge Smith) needs to do what is necessary to put an end to the Duke case, with or without Mr. Nifong's cooperation.
Just as the defense has moved slowly, dotting its i's and crossing its t's, it is plausible that Judge Osmond Smith is working assiduously to end the case.
Of course, any delay is deplorable, but some delays are strategically wise (since the case should be finally ended, not ended at the trial court level in such a way as to allow continuation at the appellate level).
What needs to be remembered is that in the Duke case the truth is with Reade Seligmann, Collin Finnerty and David Evans; much of it has been ascertained and more of it will be; and they never will be convicted; and IT IS NOT THE COURT'S FAULT THAT DUKE UNIVERSITY PRESIDENT RICHARD BRODHEAD IS KEEPING MESSRS. SELIGMANN AND FINNERTY FROM CONTINUING THEIR EDUCATION AT DUKE. (Note: After today, perhaps President Brodhead will decide to invite them back for the spring semester!)
Today was a very good day for truth in the Duke case.
In chambers, Judge Smith broke the hearts of false accuser Crystal Gail Mangum and Mr. Nifong by ruling ruled in closed-door meeting with prosecutors and defense attorneys that the defense could review her medical records (but that the information wouldn't be made public yet). (Now there's incentive for Ms. Mangum to beg Mr. Nifong to drop the case!)
Based on what happened after Judge Smith (yes, Bill, Judge Smith) ordered that the defense be given the full documentation with respect to the DNA tests by DNA Security, Mr. Nifong's private laboratory of choice, those medical records may greatly help the defense to prepare to examine Ms. Mangum.
Judge Smith set February 5 as the next court date. Then the defense motion to suppress identification will be heard and perhaps the world will see if Ms. Mangum dares to show up and risk examination or slinks away, making it necessary for Mr. Nifong to drop the charges.
Either way, the defense wins: if Ms. Mangum does what she did in the criminal case brought against her ex-husband upon her complaint and does not come to testify, the case will be over, and if she comes and is examined under oath by lawyers for Messrs. Seligmann, Finnerty and Evans, even her most deluded supporters will "get it" and the case soon will be over.
Brooklyn College Professor Robert K.C. Johnson anticipated possible surprises at the December 15 court conference. In his "What to Watch for" post at his durham-in-wonderland website, he wrote: "Given the bombshell motions of the past two days, I suppose anything is possible in today's hearing, although the ostensible subject matter is actually quite limited."
We learned that Ms. Mangum's relatives were wrong about her having a baby on December 14 (exactly nine months after that lacrosse team party ended), but that, so said Mr. Nifong, she is expected for the first week in February (which should make her testifying on February 5 even more challenging than it otherwise would be).
In Professor Johnson's well chosen words, there was "a Perry Mason moment":
Seligmann attorney James Cooney: “Was the exclusion of material the result of a specific agreement between you and representatives of the state of North Carolina?”
DNA Security director Brian Meehan: "Yes."
Dr. Meehan testified that he and Mr. Nifong agreed not to include exculpatory test results in the DNA Security report.
For a prosecutor to conspiracy to keep exculpatory information from the defense is egregious professional misconduct with constitutional implications.
Stuart Taylor, America's top legal commentator, commented:
"Brad Bannon [an Evans attorney] dissected Meehan with a brilliant cross-examination without advance notice that he would testify today on extremely technical DNA stuff. By the end, the expert witness was in tatters on the floor and the young lawyer had shown he knew the science cold and was ready to cut off every evasion with a document incomprehensible to us lay people. Among other things, the defense extracted a reluctant admission that Meehan and Nifong had agreed (conspired?) not to report all those other guys’ DNA in and on Crystal. One lawyer observer thought Meehan should have taken the Fifth [Amendment]."
Professor Johnson posted this report:
"The head of a private DNA laboratory said under oath today that he and District Attorney Mike Nifong agreed not to report DNA results favorable to Duke lacrosse players charged with rape.
"Brian Meehan, director of DNA Security of Burlington, said his lab found DNA from unidentified men in the underwear, pubic hair and rectum of the woman who said she was gang-raped at a lacrosse party in March. Nurses at Duke Hospital collected the samples a few hours after the alleged assault. Meehan said the DNA did not come from Reade Seligmann, David Evans, or Collin Finnerty, who have been charged with rape and sexual assault in the case.
"Meehan struggled to say why he didn’t include the favorable evidence in a report dated May 12, almost a month after Seligmann and Finnerty had been indicted. He cited concerns about the privacy of the lacrosse players, his discussions at several meetings with Nifong, and the fact that he didn’t know whose DNA it was."
The level of Mr. Nifong's concern for the privacy of Duke lacrosse players is well known, of course.
Professor Johnson continued:
"Under questioning by Jim Cooney, a defense attorney for Seligmann, Meehan admitted that his report violated his laboratory’s standards by not reporting results of all tests.
"Did Nifong and his investigators know the results of all the DNA tests? Cooney asked.
“'I believe so,' Meehan said.
“'Did they know the test results excluded Reade Seligmann?' Cooney asked.
“'I believe so,' Meehan said.
"Was the failure to report these results the intentional decision of you and the district attorney? Cooney asked.
“'Yes,' Meehan replied.
"At that answer, several people in the packed courtroom clapped. Superior Court Judge W. Osmond Smith III warned the standing-room only crowd to be quiet or leave."
Judges do that sort of thing, but they also "get" the significance of what inspires courtroom applause.
The clappers realized that Dr. Meehan’s testimony differed from a statement Mr. Nifong had made at the beginning of the hearing: “The first I had heard of this particular situation was when I was served with this particular motion” on Wednesday, Mr. Nifong had said.
After the court conference, Mr. Nifong conceded that he had known about the DNA results.
Mr. Nifong: "And we were trying to, just as Dr. Meehan said, trying to avoid dragging any names through the mud but at the same time his report made it clear that all the information was available if they wanted it and they have every word of it.”
BUT, at the September 22 court conference, Mr. Nifong had argued against production and read a letter from Dr. Meehan into the record in an unsuccessful effort to limit the scope of discovery to be permitted to the defense!
Professor Johnson on the Bannon examination lauded by Mr. Taylor:
"Under questioning from Brad Bannon, Brian Meehan was asked about the standards for reports at DNA Security. Item #4 states, 'Reports shall include results for each DNA test.'
"Bannon read his own lab's protocols to to Meehan. His response, 'By the letter of the standard, it diverges from the letter of that standard.'
"Meehan added: 'I don’t have a legal justification or a reason—I was just trying to do the right thing.'
"He conceded that his handling of the lacrosse case violated his own lab’s protocol--but, he stressed, 'not just because the district attorney told me to.' [emphasis added]
"The decision, he conceded, 'might not hold any weight in your legal arena,' raising the question of for whom Meehan thought he was working. He was expected to produce a report, after all, for the 'legal arena.'
"At one point, an obviously exasperated Brad Bannon queried Meehan as to whether the DNA Security official understood the definition of exculpatory. It was clear, based on his response, that Meehan didn't have a clear understanding of the concept."
Mr. Nifong does not have that excuse.
Dr. Meehan is not a lawyer, but he did make it clear that he considered Mr. Nifong his client and he tried hard to help Mr. Nifong with his prosecution of Messrs. Seligmann, Finnerty and Evans..
An exasperated Professor Johnson ridiculed the hapless Dr. Meehan:
"At DNA Security, the motto apparently is that DNA evidence doesn't really have that much importance.
"The fact that no DNA evidence was found implicating Reade Seligmann or Collin Finnerty? Meehan offered the following analogy: 'A person can rob a bank and never leave a fingerprint; it doesn’t mean they didn’t rob a bank.'
"Quite a comparison: I hadn't realized that robbing a bank involved the type of physical contact normally associated with a rape. But Meehan is the 'expert.'
"Under questioning from Collin Finnerty's attorneys, Brian Meehan admitted that he and Nifong had several (he didn't disclose how many) phone calls about the case. Previously, we only had known that Nifong did the personal journey to Burlington on two different occasions to talk with Meehan about the case. Meehan admitted under questioning today that he took no notes about this meeting.
"In a peculiar slip, Meehan repeatedly called Nifong his client—where, of course, the state of North Carolina was his client."
Mr. Nifong's questioning of Dr. Meehan was brief:
Mr. Nifong: "Did anyone tell you to lie, or conceal anything?"
Given Dr. Meehan's enthusiasm for working with Mr. Nifong, why would Mr. Nifong have asked him to "lie" or "conceal"? All he had to do was ask him to "exclude" to "protect privacy"!
As Dr. Meehan testified: ""Mr. Nifong specifically wanted us to say if the reference specimens matched any of the evidence. That's what we gave him."
In other words: NO EXCULPATORY EVIDENCE WANTED OR GIVEN!
Joseph B. Cheshire V, an Evans attorney: “If any of the lacrosse players were excluded, they simply wouldn’t put it in the report. It raises some troublesome questions about [Mr. Nifong], who has an obligation to disclose exculpatory evidence and turn it over to the defense.”
That's putting it mildly! Ants at a picnic are troublesome. Trying to convict the innocent by concealing exculpatory evidence is terrifying.
December 15 included the filing of the defense third blockbuster motion of the week, a motion to change venue in case of trial.
I hope that Judge Smith considers the facts set forth in the motion, particularly, prosecutorial misconduct that denied due process to the defendants, by dismissing the case.
The motion stated: “There exists within this County among a significant percentage of residents so great a prejudice against the Defendants that they cannot obtain a fair and impartial trial and that a Jury selected from this County will be unable to deliberate on the evidence presented in the courtroom, free from outside influence.”
The motion, in Professor Johnson's words, "lay[s] out in chilling detail the poisoning of the jury pool in Durham."
"If this case doesn’t demand a change of venue, then the protection might as well be abandoned entirely. As the motion explains, under the Constitution, the defendants are entitled to 'a trial in a community which has not been polarized by pretrial publicity or torn apart by the circumstances of these cases,' and copious evidence exists that Durham is not such a community.
"New information from the motion: we now understand why Mike Nifong so strenuously objected to the idea of polling. According to the defense poll, 3 in 5 prospective Durham jurors have already made up their mind about the case, divided almost evenly. Around 31 percent are convinced a rape didn’t occur; an incredible 28.5 percent of the county’s population has determined that the accuser was definitely raped. No DNA, a procedurally monstrous photo lineup, wildly inconsistent stories? No problem."
Ironically, the motion cited Mr. Nifong to support a change of venue: "In an interview with the Associated Press on October 30, 2006, the District Attorney observed that while he could make these cases 'go away pretty easily . . . with the stroke of a pen. But that does nothing to address the underlying divisions that have been revealed. My personal feeling is the first step to addressing those divisions is addressing this case.' Earlier, in a campaign appearance before the Rotary and Kiwanis Club, the District Attorney declared: 'If a case is of such significance that people in the community are divided or up in arms over the existence of that case, then that in and of itself is an indication that a case needs to be tried.'"
Professor Johnson's splendid summary of the motion's explanation as to why a fair trial of Messr. Seligmann, Finnerty and Evans in Durham County, North Carolina is not feasible:
"What caused this extraordinary polarization? The motion cites four primary suspects.
"1.) Mike Nifong’s statements during his pre-primary publicity barrage demonstrate why the State Bar created Rule 3.8(f)....
"Nifong’s statements, the motion notes, appeared to be 'designed to create substantial prejudice in the community against the Defendants and, indeed, to inflame members of this community.'
"2.) Community polarization makes a trial in Durham inherently unfair.
"In particular, the motion cites the consistent pattern of highly prejudicial statements among the African-American community, both from average citizens and from leaders of groups like the local NAACP.
"All who have followed the case would, of course, be familiar with these developments. The motion cites a particularly troubling event, convened by the NAACP shortly after the arrests of Reade Seligmann and Collin Finnerty. The meeting concluded, according to a Herald-Sun article, with a request for 'even-handed justice.' The response? 'Laughter and giggles.'
"3.) The biased coverage of Durham’s own Herald-Sun. The motion explains, 'In its editorial positions, the Herald-Sun has relentlessly condemned the Duke Lacrosse team and encouraged a prosecution of the Defendants in these cases.' It has done so through nearly 300 articles, 20 unsigned editorials, and dozens more op-eds or guest columns....
"4.) Employees of the county’s largest employer have repeatedly, publicly, and viciously condemned the players. Those employees? Professors of Duke University.
"The Group of 88’s statement, appropriately, is cited as an example of the Duke faculty acting to poison community sentiment against the lacrosse players. Also highlighted are efforts in this regard by Karla Holloway, Peter Wood, Grant Farred, and Orin Starn."
Mind-boggling, but true!
Solution: ordering dismissal, not a trial outside Durham County, is what Judge Smith should do.
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.