Political Scandals, Careless Comparisons and the Duke Case
There are Republican scandals and Democrat scandals, neither of which excuses the other.
The Duke Cunningham and Michael Ney cases are Republican scandals. Republican Congressmen abused their power and betrayed the public trust. Fortunately, they were held to account (by the Bush Justice Department), resigned from office (eventually) and were imprisoned.
The Mark Foley scandal is also counted as a Republican scandal. An opportunistic Democrat turned Republican, he was elected to Congress as a Republican and took a perverse interest in some Congressional pages. When that was established (and Congressional colleagues did not seem to be as open to the possibility as they should have been), he was forced to resign and it is for the appropriate authorities to determine whether there is a sound basis to prosecute him.
The William Jefferson case seems to be a Democrat scandal. The Democrat Congressman from New Orleans has not publicly offered a plausible explanation as to how certain United States currency came to be found in his freezer, but the voters in his congressional district re-elected him, the Congressional Black Caucus applauded him and he has not been charged with a crime to date.
The Duke case definitely is a Democrat scandal and extends well beyond the misconduct of an individual. The Duke Three (Reade Seligmann, Collin Finnerty and David Evans) were persecuted, not merely prosecuted, by Durham County, North Carolina District Attorney Michael B. Nifong, a Democrat and career prosecutor who had been appointed a district attorney by North Carolina Governor Michael Easley, a Democrat, a few months before false accuser Crystal Gail Mangum claimed that she had been gang raped at an off-campus party held for the 2005-2006 Duke University Men's Lacrosse Team during spring break.
At the time, the Democrat district attorney primary was less than two months away and Mr. Nifong was in a three-way race that he was expected to lose. The favorite was Freda Black, a former assistant district attorney whom Mr. Nifong sent packing when he was appointed. The third candidate was Keith Bishop, a black lawyer but not a criminal lawyer making his first try for elective office.
Mr. Nifong snatched victory from the jaws of defeat in the primary, barely, by posing as the champion of an innocent local black women against rapacious rich white Duke lacrosse players.
There were huge problems--the black woman was a stripper with a criminal record and without credibility, there had not been any kidnapping, rape or sexual assault, three team co-captains were offering to take polygraph tests and there would have been plenty of DNA evidence implicating particular players if the stripper's story was true but it wasn't and so there there wasn't and instead there was DNA evidence that contradicted what the stripper had said about her recent sexual activity.
But a primary was not to be won by prosecuting the stripper for making a false report, so Mr. Nifong arranged with the head of a private laboratory retained to do additional DNA testing to conceal some of the test results and plunged on with a bogus prosecution that could (and did) bring him short-term success and the Duke Three and their families and friends enormous expense and stress.
Durham is overwhelmingly Democrat and the black vote is critical to Democrat electoral success, including the elections of Democrats Michael Easley and Roy Cooper, currently North Carolina's Governor and Attorney General.
When it came to reigning in a rogue district attorney, Governor Easley and General Cooper were in a quandary: do so and alienate the black voters who agree with North Carolina Central University student Chan Hall that wanted to see white Duke students prosecuted "whether it happened or not" as "justice for things that happened in the past".
Governor Easley did not mention until this year, and then in New York, that Mr. Nifong had broken a promise to him in 2005 not to seek election in 2006. Some Durham voters might have appreciated knowing that before they voted, if it is true, Governor.
General Cooper never sought to intervene, but graciously did what Mr. Nifong asked him to do--take over the prosecution of the Duke Three--after the district attorneys in North Carolina's other 99 counties called for Mr. Nifong's removal from the Duke case.
So much for leadership by the Governor and the Attorney General.
Lest anyone doubt that the likes of Governor Easley and General Cooper might not have considered the personal political consequences of questioning the indictments in the Duke case, see Wilmington Journal's editorial on the Duke case, entitled "OUR VOICE, ''WE'RE WATCHING YOU, MR. COOPER'', WEEK OF JANUARY 18-24, 2007."
Both of North Carolina's United States Senators (Elizabeth Dole and Richard Burr) are Republicans, but Democrats dominate North Carolina at the state level and they are in control in Durham and Durham County.
Those Senators should have joined the call of Walter Jones, a North Carolina Republican, for a federal investigation, but the reality is that the Duke case is a major Democrat scandal, led by a Democrat district attorney desperate for election and dependent upon the black vote for it and tolerated for many months by higher-ranking Democrats who were loathe to risk offending those black voters who would have been offended if they had publicly challenged what Mr. Nifong was doing (and not doing) in the Duke case.
Winning over liberals to the cause of justice in the Duke case is a noble goal, of course, and Brooklyn College History Professor Robert KC. Johnson, a self-described centrist Democrat who has not voted Republican, has tried hard and usually very well to do so.
But a noble end does not justify any means and the dichotomy with respect to the Duke case should not be liberal/conservative. or Democrat/Republican, or black/white, but pro-prosecutorial responsibility/pro-prosecutorial abuse.
Professor Johnson has invoked the names of two prominent conservative Republicans--former federal judge and independent counsel Kenneth Starr and United States Supreme Court Justice Clarence Thomas--in an apparent to attract liberals to agree with him about the Duke case.
But Judge Starr and Justice Thomas do not deserve to be lumped with Mr. Nifong.
Professor Johnson: "Nifong...is rapidly achieving the apparently unachievable: overseeing an investigation that brings to mind the worst conduct of both sides in the Lewinsky affair. Like Ken Starr in decisions such as subpoenaing secret service agents, Nifong is so convinced of the moral guilt of his targets that he’s taken actions (such as arresting the cab driver) that only make him seem like an out-of-control prosecutor."
Actually, Mr. Nifong initially believed that there had been a rape, but he realized at the latest when the second set of DNA results came back that there was no credible evidence of kidnapping, rape or sexual assault and proceeded anyway, for personal purposes, in violation of his duty to be a fair and impartial minister of justice.
As Independent Counsel, Judge Starr did what he swore to do: zealously pursue the truth. He did not conceal it, or fabricate evidence, or lie to the court or defense counsel.
Comparing Mr. Nifong with Judge Starr might please liberals, but there is a critical distinction between a zealous, but honorable, advocate like Judge Starr and a scoundrel like Mr. Nifong.
Professor Johnson: "[Sam] Dash served as special counsel to Sam Ervin's Watergate committee; known for his detailed questioning style, he uncovered Nixon's knowledge of the White House taping system during his questioning of Alexander Butterfield. Unlike Cox, however, his legacy was tarnished by events in the 1990s, when he served as "ethics advisor" to Kenneth Starr."
Professor Johnson did not exactly state that simply working for Independent Counsel Starr was :tarnishing," but to tarnish means to bring disgrace upon and any insinuation that working for Judge Starr when he served as Independent Counsel was disgraceful is...tarnishing. [Note: Stuart Taylor, Jr., who led the exposure of the Duke case as a hoax and is co-authoring a book on the Duke case with Professor Johnson, declined to serve as then Independent Counsel Starr's spokeman, but NOT because he considered doing so tarnishing, or Independent Counsel Starr, dishonorable.)
Likewise, Professor Johnson's invocation of Justice Thomas in an otherwise on-target article exposing North Carolina Central University Law Professor Irving Joyner as a hypocrite was inappropriate.
"Based on his comments in the lacrosse case,...it appears that Joyner’s personal preferences on criminal justice issues actually resemble the positions of not the national NAACP but of Clarence Thomas. Some might find it a little . . . unusual . . . that it has taken around three decades as a lawyer for Joyner’s vehement pro-prosecution standpoint to suddenly emerge.
"For instance, Joyner aggressively defended Mike Nifong’s involvement in the April 4 lineup, when the district attorney, in his role as supervisor of the investigation, ordered Durham police to violate their own procedures and confine the lineup to suspects. 'You would expect the prosecutor to consult with the Police Department,' Joyner told the Herald-Sun in late February. 'That is a normal role and function of the district attorney."'
Ironically, Justice Thomas was the target of false sexual harassment charges concocted in a desperate, but barely unsuccessful, liberal Democrat attempt to block confirmation of Justice Thomas in 1991, because he was a conservative black Republican.
Like Justice Thomas, the Duke Three were wrongly targeted based on a political agenda.
Unlike 88ers, potbangers and apparently many Nifong voters, Justice Thomas believes in a colorblind, dispassionate criminal jurisprudence and does not allow intense emotion, or vehemence, to trump the fair and objective administration of justice.
Justice Thomas is the type of jurist the Duke Three need and people like Mr. Nifong dread.
Instead of unfairly comparing Mr. Nifong with Judge Starr or Justice Thomas, Professor Johnson should call upon his choice for president, Senator Barack Hussein Obama, to support the Duke Three.
I think all presidential aspirants--be they Republican, Democrat or Independent--should be asked to do so, and do so.
John Edwards, the former United States Senator from North Carolina, may have been too busy hiring the vehemently anti-Catholic, anti-Duke Three Amanda Marcotte as his blogmistress to comment constructively on the Duke case, but perhaps he will get around to doing so before his campaign collapses.
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.