Michael Gaynor
November 1, 2006
New York Times: still stuck on stupid in Duke case
By Michael Gaynor

The New York Times has grossly misreported the Duke case from the start.

If even one of the Duke Three actually had committed even one of the felonies on which all of them have been indicted, it would have fit the Times' agenda.

The problem: None of them did and wishing and suggesting otherwise won't make it so.

Those felonies were figments of the imagination of Crystal Gail Mangum, an ex convict stripper.

The indictments of the Duke Three were the result of the "marriage" of Ms. Mangum's desire to play victim and the desire of Durham County, North Carolina Michael B. Nifong to stay employed by the Durham County District Attoreney's office (he could not find any other legal employment and started there as an unpaid volunteer) by winning enough African-American votes to upset Freda Black, who was the favorite to win and then send him packing until word that Duke lacrosse players had gang raped Ms. Mangum spread across Durham, North Carolina, the United States and beyond).

As a North Carolina district attorney, Mr. Nifong was bound to be a fair and impartial minister of justice, not an opportunistic political hack. Instead, Mr Nifong acted despicably. He chose willful blindness, refusing to talk directly to Ms. Mangum, or to consider evidence of innocence, or to use polygraph tests.

Fortunately, the truth caught up with the lies in the courtroom of public opinion as it became clear that (1) Ms. Mangum is not credible and (2) Mr. Nifong does not have evidence to prove guilt because the Duke Three are innocent.

Still, The Times tried last August to make the indictments of the Duke Three at least look respectable

It was an impossible mission.

Stuart Taylor, Jr., America's top legal commentator and a Times alum, wrote a withering rebuttal for Slate.

Bloggers like Liestoppers exposed each and every defect.

MSNBC's outraged General Manager Dan Abrams went on television on the day the Times piece was published to refute its contents and to revile it as a bad editorial masquerading as a legitimate news story.

New York Magazine even ran an expose on the Times coverage, pointing out that bloggers had done a much better job that the so-called paper of record. (I continue to call for a Pulitzer Prize for Brooklyn College Professor Robert K.C. Johnson for his coverage of the Duke case, since he'd win one for sure if he covered the Duke case for The Times.)

The Times' Duff Wilson's latest mischief is a Halloween piece titled "Duke Rape Case Shadows an Unusual Campaign," a report on the Durham County district attorney's race.

Mr. Wilson wrote that Mr. Nifong's "opponent on the ballot is a county commissioner who filed as an independent but refuses to campaign and says that if elected, he will not serve."

Mr. Wilson did NOT write that Lewis Cheek is a Democrat like Mr. Nifong or mention at the beginning on his article that Mr. Cheek's purpose is to give North Carolina Governor Michael Easley, also a Democrat, another chance to appoint a decent Durham County district attorney.

There IS some useful information in the article:

"An Oct. 5 fund-raising letter from the Cheek campaign, signed by a retired sheriff, Roland W. Leary, and the campaign manager, Beth Brewer, said, 'We deserve honesty, integrity, good judgment and a sense of fair play.'

"In an interview, Ms. Brewer was blunter, saying Mr. Nifong 'twisted evidence he may or may not have to indict what I think are some pretty demonstrably innocent young men.'"

That was more than enough reason for Mr. Cheek to become a write-in candidate in overwhelmingly Democrat Durham.

Mr. Wilson also reported on "out-of-state money" (as though that's odd):

"Out-of-state money from Duke supporters has also entered the campaign. Parents of two unindicted lacrosse players donated $5,000 to establish a group called Duke Students for an Ethical Durham, aimed at registering Duke students to vote against Mr. Nifong. The group's treasurer, Stefanie Anne Sparks, a paralegal in a law firm that has represented unindicted players, said the group had registered more than 1,000 new voters."

An "Ethical Durham"? What a concept!

Having opened with "out-of-state money," Mr. Duff then blithely mischaracterized the basis for the "attack" on Mr. Nifong:

"Mr. Nifong has been under attack for months by the defense and supporters of the lacrosse players for aggressively pursuing a case based almost entirely on the account of the accuser, which he acknowledges he has heard only from police reports and written statements, and not directly by speaking to her."

Mr. Nifong has been criticized for NOT "aggressively pursuing" the Duke case and instead committing egregious acts of prosecutorial misconduct.

If Mr. Nifong has aggressively pursued the case, he would have accepted the offers of the co-captains of the 2006 Duke Men's Lacrosse Team to give them poolygraph tests and he would have requested that Ms. Mangum be polygraphed too.

If Mr. Nifong had aggressively pursued the case, he would have considered evidence of innocence before seeking indictments.

If Mr. Nifong had aggressively pursued the case, he would not have been able to remain willfully blind.

Making public statements to exacerbate racial tensions is NOT aggressively pursing the case.

Calling lacrosse players "hooligans" is NOT aggressively pursing the case.

Complaining about rich daddies and expensive lawyers is NOT aggressively pursuing the case.

Violating local, state and federal identification guidelines is NOT aggressively pursing the case. (It's trying to frame some young white men in order to win a primary election!)

Keeping the case going past Election Day 2006 is NOT aggressively pursing the case. (It's aggressively pursing election!)

Mr. Wilson continued:

"The flaws and gaps in the evidence have mounted. No DNA from the defendants was found on the dancer. At least one of the accused appears to have a strong alibi. A second woman hired to strip at the party has said she saw no evidence of an attack. And the array of photographs that led to the identification of the three defendants was not presented according to federal, state and local police guidelines for lineups."

Flaw: "an often hidden defect that may cause failure under stress"; "a usually immaterial defect or weakness in something."

A rigged identification procedure is a "flaw"?

"Gaps"?

There is no credible evidence to support any of the charges against any of the Duke Three.

There are not gaps in the prosecution's case.

The prosecution does not have a case: no DNA, no confirming witness, no persuasive medical evidence, a complainant with criminal, medical, employment and sexual histories that shout "Doubt me!."

Mr. Wilson did get some basic facts right:

"The accusation against the players, by a student at predominantly black North Carolina Central University here, broke last March in the midst of a tough Democratic primary campaign for district attorney, and Mr. Nifong, who ultimately won that election, has been accused of seizing on the case to win black support. At the time, he asserted that he had 'no doubt' a rape had occurred, and called the lacrosse players 'a bunch of hooligans' whose 'daddies could buy them expensive lawyers' whenever they got into trouble.

"'I'm not going to allow Durham's view in the minds of the world to be a bunch of lacrosse players at Duke raping a black girl from Durham,' he told a local television station."

Nothing about why Ms. Mangum is NOT credible, Mr. Wilson. Not even her many conflicting versions of what she alleged happened to her at the lacrosse team party last March.

Instead, Mr. Wilson depicted Mr. Nifong, who has disgraced Durham as well as himself, as downright heroic:

"In a recent interview, Mr. Nifong was defiant about pursuing the case in the face of defense attacks and questions about the strength of the evidence.

"'They've come out really strong with the idea they would either scare me or the victim away,' he said. 'That's never worked for me, which they should know by now, and it didn't work for her, either. And so here we are.'"

Kim Roberts Pittman might call that "a crock."

Ironically, Mr. Nifong WAS scared.

He was scared to give polygraph tests to the co-captains.

He was scared to give a polygraph test to Ms. Mangum.

He was scared to consider evidence of innocence.

He was scared of losing that primary to Freda Black.

He's scary too.

Only God knows what he will do.

But Mr. Wilson found someone to say a good word about Mr. Nifong:

"'He's a good person, he's a good lawyer, but he's in a situation he has never been in before,' said Ronald L. Stephens, a local judge who was district attorney before Mr. Nifong."

I sure hope he never tried to frame anyone before!

The "hopeful" conclusion to Mr. Wilson's article: "'People who are upset about the lacrosse case, they will be vocal but I don't think significant,' said Frank Hyman, a former city councilman and longtime political observer, who backs Mr. Nifong. 'I think most people are going to recognize this needs to be settled in court and not in the press.'"

The case will be settled in court, of course. I hope the defense moves to dismiss after discovery is over and the court does what a North Carolina statute mandates: dismiss.

North Carolina General Statutes Section 15A-954(a)(4): "The court on motion of the defendant must dismiss the charges stated in a criminal proceeding 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."

That happened in the Duke case: the defendants' due process and equal protection rights were flagrantly violated and they have been irreparably prejudiced.

The Fourteenth Amendment provides; "No State...shall...deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

In North Carolina, that "irreparable prejudice"standard is not high. Example: itwas held to have been met by a majority of the judges of North Carolina's highest court, in North Carolina v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971), a case that involved a charge of unlawfully operating a motor vehicle on a public street while under the influence of intoxicating liquor.

The opinions in the case make it quite clear that the defendant actually was intoxicated. As a dissenting judge put it: "Upon the facts in this record his guilt is so obvious that reasonable men, women or children could not arrive at a different conclusion."

BUT, as that same dissenting judge declared, "defendant's constitutional right to counsel was violated by an arrogant, overbearing jailer whose discharge might well serve the orderly administration of justice."

SO, the majority ruled that the defendant's prosecution had to be dismissed, because the majority (unlike the two dissenting judges) could not say that there was not "irreparable prejudice": "Before we could say that defendant was not prejudiced by the refusal of the jailer to permit his attorney to see him we would have to assume both the infallibility and credibility of the State's witnesses as well as the certitude of their tests. Even if the assumption be true in this case, it will not always be so. However, the rule we now formulate will be uniformly applicable hereafter. It may well be that here 'the criminal is to go free because the constable blundered'....Notwithstanding, when an officer's blunder deprives a defendant of his only opportunity to obtain evidence which might prove his innocence, the State will not be heard to say that such evidence does not exist....Defendant has been deprived of a fundamental right which the constitution guarantees to every person charged with crime. For that reason the prosecution against him must be dismissed."

Surely the Duke case "must be dismissed" for an even more flagrant violation of the Duke Three's constitutional rights that was WORSE than a blunder: the horrendous prosecutorial misconduct of "minister of justice" Nifong.

© Michael Gaynor

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Michael Gaynor

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... (more)

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