Duke Case: "60 Minutes" Again and How to Stop the Pain
On Sunday, January 14, 2006, after a great football game that fortunately did not go into overtime, "60 Minutes" presented its much anticipated and very moving follow up to its original Duke case expose, with Leslie Stahl replacing the late Ed Bradley. Ms. Stahl interviewed the parents of Reade Seligmann, Collin Finnerty and David Evans (aka the Duke Three) as well as reported on the collapsing of the prosecution's case and the replacement of the prosecutor. Only oblivious or willfully blind viewers are still unaware that (1) the Hoax was horribly hurtful to people who had not deserved to be hurt and (2) an end should be put to the prosecution that has been a persecution as soon as possible. (When Ms. Stahl referred to Ms. Mangum as a stripper instead of an exotic dancer or an accuser or a victim or an alleged victim, it was apparent that the miserable case should be put out of its misery, for the sake of the real victims of the really victimizers.)
In "The '60 Minutes' season opener should close the Duke case," posted on August 16, 2006, in which I announced the great news that "60 Minutes" was on the case that is a prosecutorial disgrace, to mixed reaction, I wrote:
"The current plan is for its thirty-ninth season to begin with a blockbuster expose on the Duke case.
"Mike Nifong, make a note: as of now, on September 24, 2006, an inevitable hour of infamy finally will follow your undeserved and disgraceful fifteen minutes of fame and you will realize that your short-term political gain from your deplorable (political) decision to prosecute (and persecute) the Duke Three was NOT worth it.
"Sure, you played the race card, it won you the Durham County, North Carolina District Attorney Democrat primary, and that would be tantamount to election if you are not exposed before Election Day 2006 as a shameless political hack whom Durham County's good people will not want back. Mr. Bradley, '60 Minutes''s Ed, will leave you politically dead. You'll wish you had refused to play the race card and acted professionally instead of politically and objectively instead of objectionably."
Critics insisted that "60 Minutes" could not be trusted to do the kind of expose required and/or that my announcing it would discourage "60 Minutes" from doing it.
Wrong on both charges!
Yes, Judge Smith's lifting of the outrageous and unconstitutional gag order issued by his predecessor, Judge Kenneth Titus, officially on his own initiative but actually just what Durham County, North Carolina District Attorney Michael B. Nifong and the North Carolina NAACP craved (and the North Carolina NAACP publicly requested), delayed the "60 Minutes" expose until October 15, 2006 and Mr. Nifong still managed a plurality victory in the general election for Durham County District Attorney.
But the tide had turned in the battle for public opinion, largely thanks to "60 Minutes" (not to mention bloggers whom or that "60 Minutes" took note of) and it was inevitable that enough of the truth would surface to sink Mr. Nifong.
With Mr. Nifong now out and a new prosecution team in, perhaps there will be done what should have been at the beginning: polygraph testing of the accused (Crystal Gail Mangum) and the accuseds (assuming willingness).
As I pointed out in "Duke case: Does the prosecutor need prosecuting?," posted on June 30, 2006:
"...Kevin Finnerty announced that EACH of the Duke Three had passed a polygraph test.
"From USA Today: 'The FBI will give lie-detector tests to hundreds of state and local police officers assigned to terrorism task forces across the country as part of a new effort to battle espionage and unauthorized information leaks.'
"FBI Assistant Director Charles Phalen: 'There is no more powerful tool in our tool bag' than polygraph tests.
"Curiously, polygraph testing apparently has not been used in connection with the Duke case.
"Could it be that the accuser, ex convict Crystal Gail Mangum, would not pass?
"Is it too much to expect that a person accusing another of kidnapping, rape and sexual assault pass a polygraph test BEFORE a prosecutor obtains an indictment?
"Is it too much to expect that indictments that appear to have been hastily obtained and unwarranted under all the circumstances be dismissed UNLESS the person accusing others of kidnapping, rape and sexual assault is given and passes a polygraph test?
"Especially if the accuser has a criminal record."
Surely the Duke case cannot reasonably be considered trial-worthy unless Ms. Mangum, who has changed her story many times in many respects, can pass a polygraph test!
Suggestion to the new prosecution team: Ask Ms. Mangum and the Duke Three to be
polygraphed by an experienced FBI polygraph examiner. .
Simple polygraph test questions would dispose of the remaining charges.
For Ms. Mangum: Were you ever with [insert names of each of the Duke Three and ask separately] in the bathroom on the night of the party at which you performed?
For each of the Duke Three: "Were you ever with Crystal in the bathroom on the night of the party?"
The Duke Three will pass. (They already did pass polygraph tests, privately conducted.) The odds on all of them being able to "beat the machine" are very long.
Ms. Mangum probably will refuse (or fail).
Then the whole case can be dismissed without the waste of a trial and undue risk of rioting.
If they all passed, there still would be too much doubt for the case to proceed, since no one is supposed to be convicted unless guilt is proven beyond a reasonable doubt.
Note: Three co-captains of the 2005-2006 Duke University Men's Lacrosse Team (including David Evans) offered to take polygraph tests early, but Mr. Nifong refused, because he's Mr. Nifong.
The new prosecution team NOT asking for polygraph testing now would be WRONG!
After all, as I noted in "Comparing the William Kennedy Smith case and Duke rape hoax," posted on July 10, 2006:
"The indictments of the Duke Three at the behest of their accuser is a travesty of justice. A review of the William Kennedy Smith case makes it all the more obvious. In 1991, Mr. Smith was charged with rape and acquitted after a jury trial. The complainant, Patricia Bowman, was infinitely more credible that Crystal Gail Mangum, the ex-convict/stripper/'escort' accusing the Duke Three in what is increasingly recognized as the Duke Rape Hoax.
"It was fifteen years ago. But a look back is timely. Because (1) Ms. Bowman passed TWO polygraph test and a voice-stress test before Mr. Smith was prosecuted...."
A white woman should be polygraph tested, but a black one shouldn't be?
PS In "Comparing the William Kennedy Smith case and Duke rape hoax," I reported that "the Duke Three were wrongly indicted and DNA evidence shows that their accuser had sex with several men shortly before the party at which she claimed to have been gang raped and does not show that she had sex with any of them."
It's now official that my report on the DNA evidence is correct.
It should be official that "the Duke Three were wrongly indicted."
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.