Duke Case: Assigning Blame for Excruciating Endgame
The Duke case will be dismissed, sooner or later, one way or another,
But not soon enough for any defendant or his siblings, father or mother.
The prosecution simply does not have a case.
Stalling, instead of admitting it, is a disgrace.
Do North Carolina Attorney General Roy Cooper and his special prosecutors in the Duke case, James Coman (a former director of the North Carolina Bureau of Investigation and head of the Attorney General's Special Prosecution Section) and Mary D. Winstead (a prosecutor in that section), want to admit that Durham County, North Carolina District Attorney Michael B. Nifong persecuted Reade Seligmann, Collin Finnerty and David Evans (aka the Duke Three)?
No.
Are Mr. Coman and Ms. Winstead paragons of virtue renowned for upholding the highest ethical standards in the practice of law?
"Hoke and Graves [the prosecutors who won a conviction in the first Gell trial] were ultimately tried by the Grievance Committee of the [North Carolina] State Bar for their egregious prosecutorial misconduct in the failure to timely provide Mr. Gell's original defense counsel with exculpatory Brady material to which they were absolutely entitled -- conduct that directly resulted in Mr. Gell's wrongful conviction and near execution...."
Does that instance of prosecutorial misconduct remind you of something?
Mr. McCusker:
"Jim Coman testified on behalf of his office mates at the Bar 'trial.' Under oath, he said, in direct contravention of precedent settled since 1972, that his pals weren't obligated to turn over impeachment evidence to the defense. (See, Hoke and Graves decided to deem the taped phone call of Crystal Morris, wherein she implicated herself and spoke of the need to frame Gell, merely 'impeachment' material, as opposed to 'exculpatory' material, because, while it might have 'embarrassed' poor Ms. Morris, it did not directly prove Gell's innocence. Kinda like the Nifong-Meehan conspiracy. But different. Snakes, just the same.)."
Who would try to excuse such misconduct?
The same fellow who decided to try Mr. Gell again: Mr. Coman!
Mr. McCusker:
"In September, the state's senior prosecutor [Mr. Coman] was in an unusual place: the witness stand. And what he said has caused quite a stir among lawyers around the state. Jim Coman said under oath that the state Attorney General's Office had a policy of withholding a certain type of evidence helpful to defendants. As he described it, the policy would violate 30 years of U.S. Supreme Court rulings.
"Coman now says, however, that his testimony was incorrect. Even so, one prominent law professor said that the prosecutor's September statements may open the door to challenges of numerous convictions in cases tried by the attorney general's staff.
"Coman was testifying at the State Bar about the character of two proteges, David Hoke and Debra Graves. They were charged with breaking ethical rules by withholding favorable evidence from former death row inmate Alan Gell. The evidence included a taped telephone call in which the state's star witness said she had to 'make up a story' for police."
"Make up a story"!
Would the state's star witness in the Duke case do that?
More Mr. McCusker:
"Hoke and Graves didn't have to turn over the tape, Coman said, because it wasn't 'exculpatory'; it didn't prove Gell's innocence.
"The tape could have been used to 'impeach' the witness, or undercut her credibility, Coman acknowledged. But he said case law didn't require impeachment evidence to be turned over to the defense.
"Handing over impeachment evidence has been law since a 1972 U.S. Supreme Court decision. But Coman went on to say it wasn't just his opinion, it was the policy of the Attorney General's Office.
"An odd policy.
"'The prevailing view when I was there the first time, both under Judge [Lacy] Thornburg and Attorney General [Mike] Easley and now Governor Easley,' Coman said, 'was that just because something embarrassed a witness or might be impeaching to them, did not in and of itself, unless it went to being exculpatory, was not something we had to turn over.'"
NOW it makes some sense that Governor Easley waited until public opinion had turned on Mr, Nifong before he turned on Mr. Nifong too, doesn't it?
Mr. McCusker:
"In a recent interview, however, Coman backed away from that description of policy and said his September statements were not correct -- not on the case law, and not on the attorney general's policy.
"'I was not very precise,' he said. 'My use of the term "impeaching" or 'impeachment'"... would have not been accurate.'
Mr. Coman later strained credulity even more, by saying that the Gell case was the only one in his 20 years at the North Carolina Attorney General's Office in which evidence was not handed over as required.
And that unfortunate lacrosse team party was Crystal Gail Mangum's first performance as a stripper.
When it comes to turning over exculpatory evidence to the defense, Mr. Coman is, at best, dense.
But, he's great when it comes to prolonging the agony of the innocent and creating suspense.
But he's not so stupid that he will take the Duke case to trial against the lawyers who successfully defended Mr. Gell when Mr. Coman opted to have retried: Joseph Cheshire, Brad Bannon and James Cooney.
Mr. Coman may be ethically challenged and overvalue his ability, but he's not looney.
Commenter "Jen" at Crystal Mess: "Putting aside the startling corruption problem though, it HAS to occur to Coman and Winstead that there is no way they can win this case. It's a loser and because of that I think they'll decline to prosecute. No one wants to prosecute a loser."
Right.
Mr. Nifong did his worst to ruin the Easter season for the members of the 2005-2006 Duke University Men's Lacrosse Team last year, and the team of Cooper, Coman and Winstead apparently will wait until Easter 2007 has passed before they dismiss the remaining charges, at last.
It's not that Ms. Winstead would not like to prosecute and vindicate Mr. Nifong, somehow.
It's just impossible to prosecute successfully or vindicate him.
Ms. Winstead and Mr. Nifong worked together in the Durham County District Attorney's office during the last millenium and she owes him one, for winning a conviction in the rape case she botched (or is the right word facilitated?).
I'm NOT making any of this up.
Ms. Winstead was the initial prosecutor of Timothy Malloy for an alleged 1992 rape.
Ms. Winstead voiced over portions of TWO cassette tapes containing recordings of telephone answering machine messages critical to Mr. Malloy's defense.
Just as Ms. Winstead replaced Mr. Nifong on the Duke case, Mr. Nifong replaced her on the Malloy case.
Unhampered by the spoiled audio tape, he won!
Can the special prosecutors go to trial and reasonably expect to convict any one of the three on any one of the remaining first-degree felony counts (kidnapping and sexual assault)?
Of course not!
Did Crystal Gail Mangum change her story last December to say that she could not be "certain" anyone actually raped her and that Reade Seligmann did not sexually assault her because he was supposed to marry soon?
Yes.
Did Mr. Nifong voluntarily dismiss the rape charges against the Three?
Yes.
Did Mr. Nifong voluntarily dismiss the sexual assault charge against Reade Seligmann?
No.
Did that make sense?
No.
Can Ms. Mangum be a credible witness for the prosecution if the Duke case goes to trial?
She has a better chance of being hired as a professor by Duke University, which puts its falsely accused players through undeserved adversity.
If the decision to dismiss depended solely on the merits of the prosecution's case, the case would have been finally dismissed weeks ago.
If it depended upon shame, LieStoppers' poetess Joan Foster's perfect parody, entitled "Silence is Sickening" (thanks, Ruth Sheehan, something good finally resulted from your original article, passionate and powerful, but utterly mistaken and misdirected), would have done the trick:
"Governor Easley, Attorney General Cooper, Attorneys Coman and Winstead: You Know.
"We Know You Know.
"Whatever happened in the DA's Office in Durham at the investigation gone terribly terribly bad, you know who was involved. Every one of you does.
"You need to come forward and tell the public.
"Do not be afraid of retribution on the North Carolina Democratic Party. Do not be persuaded that somehow this happened to one or more 'good guys.'
"If what the evidence says is true -- that three young men were Nifonged on a false charge -- the people responsible are not good.
"This seems an elementary statement, I know.
"But I can see loyal party members sitting around convincing themselves that it would be disloyal to turn on fellow 'politicians'-- why, the guys who were involved were just a little 'over the top.' In real life, they're funny. They call their mothers once a week. They share potential party contributors' names with friends. They attend church.
"Last Spring, Nifong was just a little too camera drunk, a little too 'worked up.' It was a scene straight out of 'The Bonfire of the Vanities' by Tom Wolfe. Indicative of election times.
"The alleged racial accusations slung at the players, who were white? Those were just ...'public edification' not 'campaigning.' Ditto for the ugly remarks overheard by the world. 'Hooligans' and 'Rich Duke Daddies.' Har, har.
"After all, this guy is not just Easley's appointed District Attorney, but now an elected DA. The career prosecutor's dream.
"And the three boys? They were... privileged young white Duke kids from up north, for Pete's sake!
"I can see you, Mr. Easley and Mr. Cooper, going down this crooked path, justifying your silence. And it makes me sick.
"Because, of all the occupational hazards that must come with going to school in Durham, one of them should not be false prosecution. And no, forcibly Nifonged by Easley's chosen appointee doesn't make it better!
"Unfortunately, many of us still want to believe there is justice for ALL in North Carolina, there is a tendency to presume that this malicious prosecution was an aberration. That he and his accomplices are 'good guys.'
"I see it in the references to the 'ongoing investigation' farce that endures in the AG's office."I sense it in the 'denial' expressed by spokeswoman Noelle Talley over the 'situation' -- the leak of charges being dropped and the (shocking!) lack of cooperation by the accuser.
"But amateur politics is one thing. The implication that this Nifonging, if true, is somehow a prosecutor that 'got out of hand' is just plain wrong.
"Nifonging is not part of a spectrum of behavior, the regrettable end game when narcissism and ambition are ignited by a faltering campaign and fanned into flames by the larger community's permission.
"No. Obstruction of justice is a crime. A very serious one.
"Those who commit it are criminals, not 'good guys.'
"I don't know what happened in that office, and in that investigation, over in Durham. Ultimately, that will be a matter for the court system to decide. But who was in on it is something the public needs to know. Now.
"They shouldn't have to wait for the political landscape to clear.
"Every member of your team knows who was involved, whether it was Nifong and the false accuser alone or not.
"Until the special prosecutors come forward with that information, free on bond isn't enough.
"Shut down the Hoax."
Instead of shutting it down BEFORE Holy Week, the plan is to wait until after Easter.
BUT NOTHING CAN RESURRECT A CASE THAT WAS BOGUS FROM THE BEGINNING.
There is not a chance of the prosecution somehow winning.
The North Carolina criminal justice system, do not further defile,
By holding out any longer to the local haters the hope of a trial.
Mr. Coman insisted on trying, but could not obtain a conviction against poor Mr. Gell.
Against the Duke defense team, he has less chance than the proverbial snowball in hell.
So 'fess up NOW to the persecution and exonerate the persecuted Duke Three,
Before Joan Foster and Rae Evans decide to take the dreadful delay personally!
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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