Michael Gaynor
January 16, 2007
Duke case: Dino Costa and Ruth Sheehan agree
By Michael Gaynor

Dino Costa is a talk radio host based in Denver, Colorado. A self-described ultra conservative, his program is broadcast daily on the five station, statewide, Radio Colorado Network. In addition, Mr. Costa hosts a twice weekly television program on FSN Rocky Mountain, "Raw Sports With Dino Costa." His website can be accessed at www.dinocosta.com. His email address is dino@dinocosta.com.

Ruth Sheehan is a columnist for The News & Observer, a North Carolina newspaper covering Raleigh, Cary and Chapel Hill as well as Durham. A liberal, her columns are accessible at www.newsobserver.com/news/sheehan; her blog, at http://blogs.newsobserver.com/ruth/index.php. Her email address is rsheehan@nando.com.

It is good news when they agree and they agree that the Duke case should be dismissed.

Mr. Costa realized that very early..

Ms. Sheehan is to be commended for realizing it too, despite very understandable reasons to believe a woman who cried rape and the prosecution.

Hero of the Hoax Dr. William Anderson December 30, 2006 post on the LieStoppers message board:

"[T]he N&O editors still are holding out hope Ah, precious hope! that Reade, Collin, and Dave really are rapists.... we see that the N&O officially is STILL equivocating with a 'maybe they did, maybe they didn't' approach.

"This simply is unacceptable. Nifong has NO case; he has committed crimes in pursuing his non-case; and he has lied throughout the process. One would ask just what more would the people at the N&O want.

"Of course, this is the newspaper that did more than any other entity to create the hoax in the first place. The 'crimes' of the N&O are not limited to the original articles or even Ruth Sheehan's infamous column. Remember it was the N&O that distributed the truly evil 'wanted' poster, something for which the paper STILL is covering up after nine months."

Ms. Sheehan does not work in a pro-Duke Three environment.

"Kempermanx" December 30, 2006 LieStoppers post: "Let's not forget that the N & O editor/publisher is Black. I am sure that's racist to point out and I am sure it has nothing to do with the N & O's position, and the N & O just discovered that the moon is made of green cheese!"

It is very good news is that Ms. Sheehan, who is blonde and was raped in her youth, finally agreed with Mr. Costa, who was the subject of a sexual harassment complaint that was determined not to be credible, that the Duke case should be dismissed.

Mr. Costa on the Duke case:

"A heinous crime has been perpetuated by trusted members of the district attorney's office in Durham, with the compliance, if not the full endorsement of two judges who previously sat on the bench in this matter. A case so unethical in design and execution, that it boggles one's mind to not think that this is only a bad dream.

"This is not Iraq, this isn't any third world country, this in fact is Durham, North Carolina, a city and a state in the United States of America. When considering the facts and considering that this is happening in this country, 'chilling' doesn't even begin to describe the horrible injustices done to the innocent in this case.

"Where is the black leadership in this country...besides out to lunch? If you took this case, with all of the injustices that are a part of it, made everyone in this case white who is black, and made everyone in this case black who is white, and every alleged black leader in America would have pitched tents and would have been in Durham since last March. The lack of accountability and condemnation by the black leadership in this country with regard to this case is appalling and an insult to anyone with even half a brain."

Full disclosure: I have appeared three times on Mr. Costa's radio show, the first time on December 27, 2006, after Mr. Costa noted my article titled "Duke case: Cash Michaels can't save this prosecution," posted the day before, and twice this month.

The last time I was Mr. Costa's guest on his radio show, Martin Luther King Day (January 15, 2007), Mr. Costa challenged me to identify a single black organization that had condemned the Duke case.

If there is one, I'm not aware of it.

I did point out the some prominent black individuals appreciated that the felony charges against Reade Seligmann, Collin Finnerty and David Evans (aka the Duke Three) obtained by despicable Durham County, North Carolina District attorney Michael B. Nifong were not supported by credible evidence and worked to help the truth prevail, particularly author Thomas Sowell, sportswriter Jason Whitlock and the late Ed Bradley of "60 Minutes" fame.

I am also aware of individual blacks, even in Durham, who know who they are and have helped the cause of justice in the Duke case disgrace, but who do not want to be identified, so I did not name any of them.

The criminal justice system needs to be colorblind. The Constitution contemplates it.

The Duke case is an astonishing oddity that must never be repeated: innocent young (white) men from out-of-state being railroaded to suit the political need of a rogue prosecutor.

The Scottborough case already sent the message that innocent young black men should not be railroaded.

How many messages are needed?

Tragically, Mr. Nifong was not alone: he had enablers in Durham and many people wanted Ms. Mangum's ludicrous gang rape tale to be true, because it fit perfectly with their anti-racism, anti-sexism, anti-elitism agenda.

BUT, the tale was a desperate fabrication revised many times and recently revised further in anticipation of the Duke case going to trial.

North Carolina journalist and television commentator Cash Michaels, who is black and who obtained access to the material Mr. Nifong had when he obtained the indictments of the Duke Three, told me, privately, before Election Day 2006: "What evidence does the DA have,' and 'Can he prove this case?' Since then I've gotten answers to both 'Nothing' and 'No.'"

I urged Mr. Michaels to say so publicly, in the hope that Mr. Michaels could help stop Mr. Nifong from fooling the overwhelming bulk of Durham County's black voters, but Mr. Michaels declined, reminding me, sadly, of Bill Dana's Jose Jimenez character saying "Is not my job!"

Mr. Michaels' latest article on the Duke case is "Duke Case Bloggers Attack Accuser's Baby."

Mr. Michaels admittedly trolls for white racists and apparently succeeds in attracting them.

His latest article quoted a couple of reassuring emails:

"One Duke Three supporter, Jim Gober, not only an attorney from Atlanta, but a 1972 Duke alumnus as well, actually thought the apparent bigotry warranted an apology.

"'Dear Editorial Staff You deserve an apology from those people who have responded with ignorance and racism to your previous editorials about the Duke Lacrosse case,' attorney Gober wrote. 'Hopefully, they are not associated with my alma mater, Duke University.'

"He added that in his opinion, 'money and quality lawyering has exposed the DA as a fraud who presents a danger of false prosecution to all residents of Durham County.'

"Another writer, Jim Quigley from Lenexa, KS stated, 'Although I have been a supporter of the three indicted Duke lacrosse players and favor a change of venue, I was shocked that a writer to your paper used denigrating anti-black racial epithets to express their displeasure with your paper and to condemn the black population of Durham.'

"'Such behavior is destructive to the honest discourse this case requires, and, although I am a Kansan, not a North Carolinian, I would like to apologize to your paper and the black community of Durham for this deplorable behavior.'"

When it comes to that "deplorable behavior," Messr. Quigly and Michaels are absolutely write. Racial epithets are destructive, not constructive; stupid, not smart; sick, not sensible.

So is prosecutorial abuse, of course.

Mr. Michaels:

" However Duke Pres. Richard Brodhead's concern about what he also called 'destructive assaults' on faculty and students, could not have anticipated the intensity of racial hatred directed not only towards the alleged victim of the assault by some supporters of the three white Duke defendants indicted, but astonishingly, towards her newborn baby as well.

"'One more social parasite has arrived,' wrote a purported Duke Three supporter named 'Try-ton X' to the abc11tv.com message board of the ABC-owned television station in Durham under a thread titled 'The Trick Baby has Arrived' on Jan. 4, the day after the little girl was born.

"'That's what the ghetto breeds lots of children and lots of irresponsibility,' wrote another purported supporter, 'EwolSmith' under 'Accuser Gives Birth.'

"Some of the other posters there wrote disparaging comments like, 'Dat jus my Baby Daddy!..Dat jus my baby Daddy!...Dat jus my Baby Daddy!!"

Yes, as I expected, the Duke case has inflamed passions, exacerbated racial tensions and brought out the people who say "Dead Man Walking" to Reade Seligmann in a courtroom or target an innocent baby and expect applause instead of condemnation.

I'm pro-life. I'm glad Ms. Mangum chose to give birth instead of to abort her third child, regardless of the circumstances under which that child was conceived.

People need to get a grip. Responsibility needs to be individual, not familial, and people have to look beyond skin color to ascertain the facts. Of course, it is not for Mr. Nifong's son or nephew to pay for Mr. Nifong sins or a baby to be dissed because the baby's mother is "troubled" or worse.

Mr. Costa on sexual assault charges in America:

"The system has to change because it is so very flawed, extremely biased, one sided, and filled with double standards.

"Any women can pick up a telephone at any moment, place a phone call to a police station, report that she has been violated in any one of a number of ways, and immediately, without any kind of anonymous inquiries being made first, a full scale investigation is launched that places the accused in a defensive position from the word go.

"Lives have been ruined, families have been torn apart, income and jobs have been lost, reputations are stained forever in some instances...this is grossly unfair.

"What happens to the alleged victims in sex cases reported that turn out to be a bunch of bunk? Nothing! They slink back into their own world clothed in anonymity, while the accused is left to pick up the shattered pieces and tries to put their lives back together...some recover, some do not, and this is a tragedy."

Mr. Costa's own unfortunate experience inclined him to suspect the gang rape claiim.

Mr. Costa on his own case:

"Talking with someone and opening my ears to their own personal marital woes cost me in ways I never dreamed. I would never wish what I went through on my worst enemy.

"A jealous husband who then forces his wife to file a complaint, or face being thrown out of their home for good, were the two primary factors involved in my own situation. When this women was confronted to what amounted to being self preservation, she filed a complaint...a complaint that went nowhere and was deemed completely uncredible.

"My employer at the time cut me off immediately, made me feel dirty, judged me immediately, even though there was nothing ever in my past, nor in my immediate personal life at that moment that could give a smidgen of credibility to a claim so outrageous, that to this day I cannot fathom it ever happening.

"My employer did not embrace me or my family, never even made a phone call to see how we were doing, never helped to secure us legal counsel...nothing. We were ostracized and made to feel like outcasts right from the outset.

"Unlike the Duke boys and many others, I was never arrested, never charged with anything, I was merely questioned, and being questioned led to the most haphazard period of my life.

"I loved Denver, loved Colorado, but being as outspoken and as candid as I always am, made this incident something that my detractors fully embraced, they seized upon the news and sought with my then employer to fuel this incident as something that would take me down and put me off the air.

"For awhile they got their wish.

"I was forced to relocate to Jacksonville, Florida to find employment in the radio industry, before coming back to Colorado in June of 2005, supported and embraced by people who put me back on the air here.

"The Duke case and its resulting fallout will hopefully have a long lasting impact on how sexual assault cases in America are handled."

AMEN!

Some good needs to come out of the Duke case debacle!

We need to make that happen!

Ms. Sheehan, a rape victim, initially believed the rape story and went after the 2005-2006 Duke University Men's Lacrosse Team with the zeal of a true believer who felt Ms. Mangum's supposed pain:

Excerpt from Ms. Sheehan's "Team silence is sickening" column, published on March 27, 2007.

"Members of the Duke men's lacrosse team: You know.

"We know you know.

"Whatever happened in the bathroom at the stripper party gone terribly terribly bad, you know who was involved. Every one of you does.

"And one of you needs to come forward and tell the police.

"Do not be afraid of retribution on the team. Do not be persuaded that somehow this 'happened' to one or more 'good guys.'"

BUT, nothing criminal "happened in the bathroom"!

Last June, Ms. Sheehan publicly called for a special prosecutor in the Duke case. I happily wrote "Give it up, Mike Nifong! Even Ruth Sheehan says so," posted on June 25, 2006 and concluding: "Ms. Sheehan, IF Mr. Nifong had evidence to support the indictments, he would not need to be put out of his misery. As it is, he needs to be off the case, out of office and disbarred."

Ms. Sheehan followed the evidence and was calling for dismissal of all charges in the Duke case as 2007 began.

Excerpt from Ms. Sheehan's "It's time to drop charges" column, published on January 1, 2007:

"Nifong's explanation for dropping the rape charge only added to the excruciation factor: The accuser said she now cannot remember whether a penis was involved in the alleged attack.

"I cringe just typing the words.

"As the victim of a date rape more than 20 years ago myself, I can attest that there are some details you can train your mind to glance over.

"Whether a penis was involved is a detail one is unlikely to forget.

"What kind of dimwitted fools does Nifong believe us, and the potential jurors, to be?

"I ask this, of course, from some experience.

"I was one of the hopelessly naive who fell hard for Nifong's original depiction of the case."

VERY HARD, Ms. Sheehan.

Ms. Sheehan on being hoodwinked:

"In statements the State Bar now says violated ethics rules, Nifong described in detail the horrors of the alleged gang rape, including an attempted strangulation and racial insults.

"Like others, I was outraged. And I wrote about it. I make no apology for that. It is not my job to wait for cases to be resolved and then walk through the aftermath and shoot the dead."

I FULLY AGREE THAT MS. SHEEHAN SHOULD NOT APOLOGIZE FOR WRITING ABOUT THE DUKE CASE. (She would be well advised, however, to apologize for jumping or letting herself be pushed to the wrong conclusions.)

It appears to me that (1) Ms. Sheehan's own horrible personal experience made her more susceptible to being hoodwinked and (2) Mr. Costa's very problematic personal experience inclined him to be suspicious of the rape story.

The solution is to follow the evidence, regardless of your initial inclination.

The tale was not true, but it does not mean that a black woman claiming to have been raped by a white man or white men is lying.

That too needs to be remembered.

On January 15, 2007, I emailed Ms. Sheehan, requesting that she support my polygraph suggestion and setting forth my article making it, titled "Duke Case: '60 Minutes' Again and How to Stop the Pain,"

Ms. Sheehan responded with a request to post my article.

I approved and explained:

"As a man, I don't want false rape charges.

"As a husband and a father of a daughter, I don't want rapists escaping justice.

"Since everyone has a mother and a father, an evenhanded approach seems fair.

"We need a fair policy aimed at the truth being ascertained, whether or not the defendants can have superb lawyers and investigators and experts retained and tv shows to undo grave damage.

"Let's learn some lessons from the debacle that is the Duke case."

In "False rape claims, polygraphing, and the Duke case," posted on September 20, 2006, I drew attention to each of the Duke Three having passed a polygraph test and their accuser (Ms. Mangum) not having been polygraphed and found it "curious" that Durham County, North Carolina District Attorney Michael B. Nifong not only refused an offer to be polygraph tested made by the three co-captains of the 2006 Duke Men's Lacrosse Team, but apparently did not even ask Mr. Mangum to take a polygraph test (I doubt she volunteered).

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.

Mr. Nifong complained of a "wall of silence," but when team members volunteered to be polygraphed, it was Mr. Nifong who did the rebuffing.

Why?

Could it be that Mr. Nifong feared that Ms. Mangum, the accuser and an ex convict, would not pass, he thought he needed to be pursuing some white lacrosse players in order to win the Democrat primary last May and the case he planned to use to snatch electoral victory from the jaws of defeat would have collapsed much too soon?

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 were 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.

Dr. Eugene J. Kanin of the Department of Sociology and Anthropology at Purdue University is the author of 'An alarming national trend: False Rape Allegations' (Archives of Sexual Behavior, Vol. 23, No. 1, 1994, pages 81-90).

The abstract for this article states: "With the cooperation of the police agency of a small metropolitan community, 45 consecutive, disposed, false rape allegations covering a 9 year period were studied. False rape allegations constitute 41% of the total forcible rape cases (109) reported during this period. These false allegations appear to serve three major functions for the complainants: providing an alibi, seeking revenge, and obtaining sympathy and attention. False rape allegations are not the consequence of a gender-linked aberration, as frequently claimed, but reflect impulsive and desperate efforts to cope with personal and social stress situations."

Some feminists apparently think any rape claim must be true, but that thought defies reality.

Ms. Mangum was transported to the Durham Access Center by police officers who believed that she met the criteria for involuntary commitment. That strikes me as a stressful situation for Ms. Mangum. Ms. Mangum did not allege physical or sexual assault at the lacrosse team party until involuntary commitment loomed.

Surely it should have occurred to the police and the prosecution that Ms. Mangum's gang rape claim (of which there were multiple, significantly difference versions) was an "impulsive and desperate" attempt to cope with a personally stressful situation.

Dr. Kamin recognized that legitimate rape cases were discounted before pressure from women's groups caused them to be taken seriously but concluded that now false rape claims are treated as legitimate.

Dr. Kamin:

"Currently, the two main identifiable adversaries involved in the false rape allegations controversy are the feminists and the police. The feminists are by far the most expressive and prominent on this issue. Some feminists take the position that the declaration of rape as false or unfounded largely means that the police do not believe the complainant; that is, the rape charges are real reflections of criminal assault, but the agents of the criminal justice system do not believe them (Brownmiller, 1975; Russell, 1984). Some feminists virtually deny the existence of false rape accusations and believe the concept itself constitutes discriminatory harassment toward women (see Grano, 1990). On the other hand, police are prone to say the reason for not believing some rape complainants resides in the fact that the rapes never occurred (Payton, 1967; Wilson, 1978; Jay, 1991). Medical Examiners lend support to this police position by emphasizing the ever-present possibility that rape complainants may be lying (Shill, 1969, 1971).

"METHODS

"This investigation is essentially a case study of one police agency in a small metropolitan area (population 70,000) in the Midwestern United States. This city was targeted for study because it offered an almost model laboratory for studying false rape allegations. First, its police agency is not inundated with serious felony cases and, therefore, has the freedom and the motivation to record and thoroughly pursue all rape complaints. In fact, agency policy forbids police officers to use their discretion in deciding whether to officially acknowledge a rape complaint, regardless how suspect that complaint may be. Second, the declaration of a false allegation follows a highly institutionalized procedure. The investigation of all rape complaints always involves a serious offer to polygraph the complainants and the suspects. Additionally, for a declaration of false charge to be made, the complainant must admit that no rape had occurred. She is the sole agent who can say that the rape charge is false. The police department will not declare a rape charge as false when the complainant, for whatever reason, fails to pursue the charge or cooperate on the case, regardless how much doubt the police may have regarding the validity of the charge.

"In short, these cases are declared false only because the complainant admitted they are false. Furthermore, only one person is then empowered to enter into the records a formal declaration that the charge is false, the officer in charge of records. Last, it should be noted that this department does not confuse reported rape attempts with completed rapes. Thus, the rape complainants referred to in this paper are for completed forcible rapes only. The foregoing leaves us with a certain confidence that cases declared false by this police agency are indeed a reasonable- if not a minimal reflection of false rape allegations made to this agency, especially when one considers that a finding of false allegation is totally dependent upon the recantation of the rape charge.

"We followed and investigated all false rape allegations from 1978 to 1987. A ranking police official notified us whenever a rape charge was declared false and provided us with the records of the case. In addition, the investigating officers provided any requested supplementary information so that we could be confident of the validity of the false rape allegation declarations.

"FINDINGS

"Regarding this study, 41% (45) of the total disposed rape cases (109) were officially declared false during this 9-year period, that is, by the complainant's admission that no rape had occurred and the charge, therefore, was false. The incidence figure was variable from year to year and ranged from a low of 27% (3 out of 11 cases) to a high of 70% (7 out of 10 cases). The 9-year period suggests no trends, and no explanation has been made for the year-to-year fluctuation.

"The study of these 45 cases of false rape allegations inexorably led to the conclusion that these false charges were able to serve three major functions for the complainants: providing an alibi, a means of gaining revenge, and a platform for seeking attention/sympathy. This tripartite model resulted from the complainants' own verbalizations during recantation and does not constitute conjecture. Of course, we are not asserting that these functions are mutually exclusive or exhaustive; rather, these rape recantations focused on a single factor explanation. A possible objection to these recantations concerns their validity. Rae recantations could be the result of the complainants' desire to avoid a 'second assault at the hands of the police. Rather than proceed with the real charge of rape, the argument goes, these women withdrew their accusations to avoid the trauma of police investigation.

"Several responses are possible to this type of criticism. First, with very few exceptions, these complainants were suspect at the time of the complaint or within a day or two after charging. These recantations did not follow prolonged periods of investigation and interrogation that would constitute anything approximating a second assault. Second, not one of the detectives believed that an incident of false recantation had occurred. They argued, rather convincingly, that in those cases where a suspect was identified and interrogated, the facts of the recantation dovetailed with the suspect's own defense. Last, the policy of this police agency is to apply a statute regarding the false reporting of a felony. After the recant, the complainant is informed that she will be charged with filing a false complaint, punishable by a substantial fine and a jail sentence. In no case, has an effort been made on the part of the complainant to retract the recantation. Although we certainly do not deny the possibility of false recantations, no evidence supports such an interpretation for these cases.

"RELATED FINDINGS

"In addition to the foregoing, certain other findings and observations relevant to false allegations warrant comment. First, false allegations failed to include accusations of forced sexual acts other than penile-vaginal intercourse. Not one complainant mentions forced oral or anal sex. In contrast, these acts were included in approximately 25% of the rounded forcible rape complaints. Perhaps it was simply psychologically and socially more prudent for these women to minimize the humiliation of sexual victimization by not embroidering the event any more than necessary. This phenomenon has been observed previously (McDowell and Hibler, 1987).

"One of the most haunting and serious implications of false rape allegations concerns the possibility of miscarried justice. We know that false convictions occur, but this study only tells us that these false accusers were weeded out during the very early stages of investigation. However encouraging this result may be, we cannot claim that false charging does not incur suffering for the accused. Merely to be a rape suspect, even for a day or two, translates into psychological and social trauma.

"We may well be faced with the fact that the most efficient police departments report the higher incidence of false rape allegations. In view of these factors, perhaps the most prudent summary statement that is appropriate from these data is that false rape accusations are not uncommon. Since this effort is the first at a systematic, long-term, on-site investigation of false rape allegations from a single city, future studies in other cities, with comparable policies, must assess the representativeness of these findings."

Further, Dr. Kamin noted studies of women on college campuses which show an approximately 50% rate of false rape reports, similar to the study above:

"Quite unexpectedly then, we find that these university women, when filing a rape complaint, were as likely to file a false as a valid charge. Other reports from university police agencies support these findings (Jay, 1991). In both police agencies, the taking of the complaint and the follow-up investigation was the exclusive responsibility of a ranking female officer. Neither agency employed the polygraph and neither declared the complaint false without a recantation of the charge."

My conclusions:

(1) The polygraph should be employed to help evaluate rape claims (as it was by the police in the Midwestern city reported on by Dr. Kamin);

(2) Willingness or reluctance to take a polygraph test should be accorded substantial weight in deciding whether or not to seek to indict;

(3) Grand juries should be notified of offers to take and refusals as well as test results;

(4) The problem of unpunished rapes is not solved by punishing the innocent for imaginary rapes;

(5) The Duke rape case is a hoax and Mr. Nifong was blind, even willfully blind, to the truth and then...worse.;

(6) The indictments of the Duke Three should be dismissed immediately.

(7) Mr. Nifong should be removed for office for serious misconduct.

(8) The North Carolina State Bar should proceed against Mr. Nifong for each and every instance of misconduct by him.

(9) Mr. Nifong should be sued by anyone with a claim against him who cares to pursue it; and

(10) Ms. Mangum should be asked to take a polygraph test, so that it can be ascertained whether she is deluded or dishonest.

Will she take a polygraph test?

Will the new prosecution team ask????

If not...WHY NOT??????????????????????

© Michael Gaynor

 

The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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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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