Commiserating with Robert Novak, thanks to the Duke case

By Michael Gaynor

Durham County, North Carolina District Attorney Michael B. Nifong wants himself to be elected as district attorney this November and the Duke case to be tried next year and to become the greatest trial in Durham County, North Carolina history (even though the most he can realistically hope for jury nullification hanging the jury). Defense lawyers would be assured of more lucrative employment and a great chance of winning acquittal if there is a trial. But the facts do not warrant a trial. The indictments were improvidently issued, based on misinformation and incomplete information. The case should be dismissed, not tried, and sooner rather than later. Therefore, it should be demonstrated to the voters of Durham County as thoroughly and powerfully as possible that the crimes in the Duke case were the commencement and continuation of the case, not kidnapping, rape or sexual offense. Support for Mr. Nifong has been based on the belief that there must be solid evidence of guilt, not solid evidence of guilt. The actual evidence establishes that the Duke Three are innocent. When enough people realize it, even a timid judge will be able to bring himself to dismiss it, whether or not Mr. Nifong is still district attorney and prosecutor in the case.

Robert Novak is an independent conservative and a distinguished political commentator, not an apologist I don't always agree with him, but I respect him as a man of principle who does his own thinking.

Richard Armitage is the former Undersecretary of State who told Mr. Novak that Valerie Plame Wilson, former Ambassador Joseph Wilson's wife, was a CIA operative. He and Mr. Novak shared a concern that deposing Saddam Hussein would be a worth doing, and he was a source for Mr. Novak.

After Mr. Novak publicly disclosed that Mrs. Wilson was a CIA operative, the Wilson's quickly claimed to be victims of a vicious White House counterattack on Ambassador Wilson that was criminal in nature. That was not the case, it is now evident, but a Special Prosecutor spent plenty of time and taxpayer money looking into the possibility, to the delight of Democrats; Mr. Novak protected his source, Mr. Armitage; and Mr. Armitage protected himself.

What journalist Mr. Novak did — protect his source — was respectable, if not deserved, even though it prolonged the great suspicion of Administration wrongdoing and the investigation and largely contributed to the indictment of Scooter Libby, Vice President Cheney's former chief of state, the only indictment resulting from the investigation, on grounds postdating Mr. Novak's disclosure of Mrs. Wilson's CIA connection. If Mr. Armitage had told President Bush as well as then Secretary of State Colin Powell (or Secretary Powell had mentioned it to the Commander-in-Chief), it seems likely that the investigation would have ended quickly, without any indictment, and there would have one less line of attack on President Bush's integrity and foreign policy.

Mr. Armitage differed with President Bush, Vice President Cheney and Mr. Libby on important foreign policy issues, but that did not excuse his silence. He should have spoken up before the Special Prosecutor instructed him not to do so.

These days I can better commiserate with Mr. Novak for protecting a source, even one unworthy of protection. Especially after noting that a message anonymously posted on the Friends of Duke University website on July 14 that I have repeatedly quoted has been removed. (The poster passionately urged Collin Finnerty's family to let him speak in his own defense three days before Judge Kenneth Titus helped the prosecution by gagging Collin Finnerty, his co-defendants, their 2006 Duke Men's Lacrosse Team teammates and any other potential witnesses.)

From the day Reade Seligmann and Collin Finnerty were indicted in the Duke case, I believed they had not kidnapped, or raped, or sexually assaulted their accuser. I wrote within days to chide the media for referring to the accuser as a victim instead of an accuser and an exotic dancer instead of a stripper. My late mother's final illness (liver cancer) precluded my devoting my attention to the case for several weeks, but not very long after her funeral I focused on the Duke case again and discovered that Stuart Taylor, America's top legal commentator, had delved into the case and pronounced himself "about 85 percent confident that the three members who have been indicted on rape charges are innocent and that the accusation is a lie." Having communicated with Mr. Taylor and followed his work since 1998, I believed it was only a matter of time before the mainstream media would have to admit that it had been had (or allowed itself to be had).

Unfortunately, National Journal, for which Mr. Taylor writes, is not nearly as widely circulated as Newsweek, to which he also contributes, and he had written about the Duke case for National Journal, not Newsweek. I wanted everyone to read what Mr. Taylor had written, so I wrote a piece titled "The deplorable Duke political persecutions," essentially pointing out that I had previous criticized the prosecutors in both the Kobe Bryant and Michael Jackson cases for pursuing cases where there was ample reasonable doubt and presenting Mr. Taylor's position on the Duke case (which I much appreciated and fully supported).

At this time, there was a dearth of support for the Duke Three and so my article somehow attracted the attention of a passionate family member (NOT an immediate family member) of one of the Duke Three who was eager to applaud me for my writing and point me in a certain direction:

"Your article on the Duke case is wonderful. As a family member of one of the accused, I can tell you how much we appreciate it when intelligent people take the time to assess the situation and write about it fairly as we feel you have done.

"Perhaps you might like to investigate the possibility that MR. Nifong is in deep financial trouble. If he does not win the election, he has no right to a pension which he desperately needs. There is real grist for the mill in that subject. Answers the question: 'Why would a DA not look for the truth?'"

I followed up on this unsolicited email and ultimately met the writer. We both believed — and undoubtedly we both still believe — in the innocence of the Duke Three on the pending criminal charges and the culpability of the prosecution.

I also believed that the silence of the defendants (with the notable exception of a superlative public statement by David Evans) was counterproductive. I think that automatically defending the innocent as though they are guilty and silencing them can be a mistake, especially when the defendants are not the monsters which they are being portrayed as being.

Noting that Mr. Nifong had not wanted polygraph tests and Mr. Evans wisely had taken one anyway and announced it, I urged that his co-defendants do the same. I'm glad that finally happened

I feared that Collin Finnerty would be convicted in the unrelated D.C. assault case, even though ample reasonable doubt would be shown and the case would be tried by a judge, if Mr. Finnerty remained silent and was not humanized. History records that he was convicted. I am far from alone in believing that reasonable doubt had been shown.

An attempt to humanize Mr. Finnerty finally was made, courtesy of NBC, with Dan Abrams doing the interviewing and the interview being broadcast in part on "Today" and in full on MSNBC's "The Abrams Report," of fond memory. It was too little and too late. Unfortunately, the male Finnerty interviewed was Collin's father Kevin instead of Collin and he misstated that Collin had seen the accuser leave as well as arrive (fortunately, he was quickly corrected by his wife and Collin's mother).

A defendant's failure to testify is not supposed to be held against the defendant, but it often is, and not only did Collin not testify in the D.C. case, but it was reported on the first day of the two-day trial that he would not. The defense might as well have said: "No matter what happens during this trial, we dare not risk letting him testify."

The notion that my view that Collin should be trusted not to commit legal suicide while speaking my is not, and never has been shared, by any stalwarts in the defense camp is false. An innocent person simply telling the truth is his or her own best witness. Preparation is appropriate. Duke sophomores can be properly prepared. Collin and Reade could and should have been, not to be a guest of Nancy Grace, but to make statements.

On July 14, a passionate person anonymously posted this message to the family of Collin Finnerty on the Collin's DC Trial part of the Friends of Duke University website (http://friendsofdukeuniversity.blogspot.com/2006/05/collins-dc-trial.html):

"To Collin's family: stop hiding him in the attic. IF he is innocent of all the charges let him hold his head high and face the courts and the cameras and the judges and proclaim to the world who he is. Time to grow up and face the charges like a man — even though you probably are guilty of nothing you need to jump off the speeding train or at least change tracks before they railroad you right into the BIG HOUSE. "

I didn't write it. I didn't ghostwrite it. But I fully agree and I know who wrote it (and I know of other relatives who agreed).

The post was removed, whether at the instance of the poster, the Friends of Duke University moderator or a defense lawyer or relative who wanted it removed, but it had been posted voluntarily (and not at my suggestion — the posting that is, I previously had used the words "stop hiding him in the attic"), it reflected an attitude I shared then and now and have publicly expressed (albeit less vituperatively, because I don't blame Collin for following the advice, but those who have so advised him), and, but for the gag order, I'd be delighted to watch and listen to Collin make a public statement much like the one his co-defendant David Evans made promptly after he was indicted.

Any criticism of any part of defense strategy posted at the Friends of Duke University website is likely to provoke not only rebuttal (which is fair), but removal as unsupportive and unwanted.

On September 13, "gc" posted this message at the Friends of Duke University website, in response to a post of mine deleted by the moderator:

"Regarding M. Gaynor's earlier posting. I appreciate much of your work, but I believe you are dead wrong on certain points.

"The 3 indicted lacrosse players should continue to follow the advise of their legal counsel and not you. That's what their attorneys are paid for. Mr. Evans was the best person to make a speech. He was captain of the team, he had graduated the day before and was about 23 years old. Reade Seligmann and Collin Finnerty were none of the above. By Collin keeping his mouth shut, Mr. Nifong (and all of us) still don't know the details of Collin Finnerty's alibi, which causes a bit of a problem for Nifong's case.

"Susan Lucci is a star, but also a private citizen. She deserves her privacy. Some of the newspapers printed her address. Why would you suggest she get up and speak about Finnerty? Do you think his parents want or expect that? Ms. Lucci hasn't known Collin his whole life. The Finnerty's only moved into their house about 5 years ago. Please don't write things you know absolutely nothing about."

You help me to commiserate with Mr. Novak, "gc." Of course, you are entitled to approve or disapprove my work, in whole or in part. This is America,

I DO know what I write about. I would not want to cause a heart attack by publicly quoting emails that the writer now regrets, even though they would answer your questions, enlighten you, and explain why I called upon Ms. Lucci to speak (it's my choice to call for her to speak and hers to speak or not to speak).

In my view, Collin Finnerty and Reade Seligmann certainly should have publicly proclaimed their innocence in the Duke case. After all, they ARE innocent. They could have, and should have, done much the same thing as David Evans later did. Honor students at elite Catholic high schools before they went to Duke, they are not the type to kidnap of rape. Their families brought them up much better than that.

The issue in the Duke case is not whether some young white men would have been capable of raping a young black girl. The answer to that question is yes, of course. There are plenty of rapists, white, black and other.

The issue is whether Collin, or Reade, or David raped their accuser in a small bathroom during that Duke lacrosse team party last March. The answer, in each case, is no.

The notion that Collin raped his accuser is even more absurd when one takes into account his intelligent, athletic, longtime girlfriend (a graduate of an elite Catholic girls high school and a student at a Catholic college), who is still his girlfriend and surely would not be if he was guilty in fact, no matter what the law decided.

Regrettably, Collin's defense team is still opting to keep his alibi secret, fearing that the prosecution somehow would undermine it, even though it is legitimate.

The defense is right to suspect the prosecution would try to do that — it did that with Reade's alibi — but the prosecution discredited itself instead of Reade's alibi and the people of Durham and the rest of America can take note that the black cab driver targeted by the prosecution after he confirmed Reade's alibi was acquitted on an unrelated and unmerited charge that never should have been prosecuted.

It's a good thing that Reade's alibi was detailed, especially since he too has been silent.

Leveling with the people is a good thing for the innocent to do. People tend to think that secretive people have something BAD to hide, even when they are just shy, or private, or following legal advice, not guilty.

Since the prosecution in Durham County is perverse, the Duke Three need to prevail in the courtroom of public opinion, and they should do so long enough before Election Day 2006 for the voters of Durham County to vote not to keep Mr. Nifong as their district attorney. With "60 Minutes" doing an expose shortly and Cash Michaels telling his fellow Durhamites what the evidence really shows, not even the Democrat nomination assures Mr. Nifong election.

© Michael Gaynor