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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  January 11, 2007
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Duke Case: Big time Boomerangs

Boomerang: “an act or utterance that backfires on the originator.”

 
In the Duke case, big time boomeranging has begun, with more coming soon. 
Ultimately, it will be many real villains of the incredible story who will swoon.

  Crystal Gail Mangum, false accuser, and Michael B. Nifong, egregious prosecutorial abuser, have plenty of gall.
But can either or both of them be so deluded as even now not to see the huge handwriting on the wall?

   Then there are Duke University’s Group of 88 and its President, Richard Brodhead?
Will all or some become defendants and wish they had behaved decently instead?

   On the Duke case, “60 Minutes” will be back.
Ed Bradley died, so Leslie Stahl is on the track.

   Only as to exactly when and how the remaining bogus charges will be dismissed is there a bit of suspense,
Because there’s uncertainty as to whether Ms. Nifong is completely dense and Ms. Mangum has some sense.
Examples of major Duke case boomerangs:
(1) Yes, the co-captains of the 2005-2006 Duke University Men’s Lacrosse Team choosing strippers as “entertainment” for an off-campus spring break team party last March;

  (2) Ms. Mangum (a) falsely crying rape when she was about to be incarcerated for her own good, (b) fabricating and embellishing outrageously and disgustingly, (c) falsely identifying Reade Seligmann, Collin Finnerty and David Evans (aka the Duke Three) as her supposed attackers, (d) pole dancing at a disreputable establishment open to the public and trying unsuccessfully to get prescription drugs at Duke University Medical Center not long after she supposedly was gang raped and (e) failing to confess long ago that she had made up the tale of horror and then targeted three young white men from wealthy out-of-state families because she thought it to be in her best interests to do so (to specify five);

  (3) Durham County, North Carolina Distirct Attorney Nifong (a) treating Ms. Mangum’s ludicrous story as true, (b) appointing himself lead investigator in the Duke case, (c) refusing the offer of three co-captains to take polygraph tests, (d) not having Ms. Mangum polygraph tested, (e) refusing to consider overwhelming evidence of Reade Seligmann’s innocence, (f) manipulating grand jurors into indicting the Duke Three, (g) dismissing the North Carolina state laboratory DNA test results that he had requested because they did not implicate any white team member, (h) hiring  private laboratory (DNA Security) to do further DMA testing and conspiring with the director of DNA Security (Dr. Brian Meehan) to conceal exculpatory test results that destroy Ms. Mangum’s alleged credibility, (h) lying to the court and the defense about the existence of such exculpatory evidence, (i) making outrageous and utterly unethical statements that finally became the subject of a complaint against him by the North Carolina State Bar, (j) persecuting a black cab driver (Moezeldin Elmostafa) for confirming Reade Seligmann’s bona fide alibi, (k) avoiding like the plague personal discussion of the “facts” with Ms. Mangum and (l) refusing to dismiss all the bogus charges charges against the Duke Three or to remove himself from the Duke case (even though the district attorneys of North Carolina’s 99 other counties urged him to do so) (to specify a dozen);

   (4) The Durham County, North Carolina Democrat primary voters choosing Mr. Nifong as their district attorney candidate, by a plurality, on May 2, 2006;

   (5) The Durham County, North Carolina voters electing Mr. Nifong as their district attorney, by a plurality, on November 7, 2006; and

   (6) Duke University faculty members known as the Group of 88 who issued the notorious “Social Disaster” statement that was published as an ad in The Duke Chronicle last April and, generally, have refused to admit that they were terribly wrong to have done so.
Set forth immediately below is the “Social Disaster” ad that, itself, was a social disaster and, I hope, will boomerang bigtime on the 88.

"We are listening to our students. We’re also listening to the Durham community, to Duke staff, and to each other. Regardless of the results of the police investigation, what is apparent everyday now is the anger and fear of many students who know themselves to be objects of racism and sexism, who see illuminated in this moment’s extraordinary spotlight what they live with everyday. They know that it isn’t just Duke, it isn’t everybody, and it isn’t just individuals making this disaster.

"But it is a disaster nonetheless.

"These students are shouting and whispering about what happened to this young woman and to themselves.

". . . We want the absence of terror. But we don’t really know what that means . . . We can’t think. That’s why we’re so silent; we can’t think about what’s on the other side of this. Terror robs you of language and you need language for the healing to begin.

This is not a different experience for us here at Duke University. We go to class with racist classmates, we go to gym with people who are racists....It’s part of the experience. [Independent, 29 March 2006]

"If it turns out that these students are guilty, I want them expelled. But their expulsion will only bring resolution to this case and not the bigger problem. This is much bigger than them and throwing them out will not solve the problem. I want the administration to acknowledge what is going on and how bad it is.

"Being a big, black man, it’s hard to walk anywhere at night, and not have a campus police car slowly drive by me.

"Everything seems up for grabs--I am only comfortable talking about this event in my room with close friends. I am actually afraid to even bring it up in public. But worse, I wonder now about everything. . . . If something like this happens to me . . . What would be used against me--my clothing? Where I was?

"I was talking to a white woman student who was asking me “Why do people -- and she meant black people -- make race such a big issue?” They don’t see race. They just don’t see it.

"What Does a Social Disaster Sound Like?

"You go to a party, you get grabbed, you get propositioned, and then you start to question yourself.  [Independent, 29 March 2006]

". . . all you heard was 'Black students just complain all the time, all you do is complain and self-segregate.' And whenever we try to explain why we’re offended, it’s pushed back on us. Just the phrase 'self-segregation': the blame is always put on us. [Independent, 29 March 2006]

". . . no one is really talking about how to keep the young woman herself central to this conversation, how to keep her humanity before us . . . she doesn’t seem to be visible in this. Not for the university, not for us.

"I can’t help but think about the different attention given to what has happened from what it would have been if the guys had been not just black but participating in a different sport, like football, something that’s not so upscale.

"And this is what I’m thinking right now – Duke isn’t really responding to this. Not really.  And this, what has happened, is a disaster.is This is a social disaster.

"The students know that the disaster didn’t begin on March 13th and won’t end with what the police say or the court decides. Like all disasters, this one has a history. And what lies beneath what we’re hearing from our students are questions about the future.

"This ad, printed in the most easily seen venue on campus, is just one way for us to say that we’re hearing what our students are saying.

"Some of these things were said by a mixed (in every way possible) group of students on Wednesday, March 29th at an African & African American Studies Program forum, some were printed in an issue of the Independent that came out that same day, and some were said to us inside and outside of the classroom.

"We’re turning up the volume in a moment when some of the most vulnerable among us are being asked to quiet down while we wait.  To the students speaking individually and to the protestors making collective noise, thank you for not waiting and for making yourselves heard.

"We thank the following departments and programs for signing onto this ad with African & African American Studies: Romance Studies; Psychology: Social and Health Sciences; Franklin Humanities Institute; Critical U.S. Studies; Art, Art History, and Visual Studies; Classical Studies; Asian & African Languages & Literature; Women’s Studies; Latino/a Studies; Latin American and Caribbean Studies; Medieval and Renaissance Studies; European Studies; Program in Education; and the Center for Documentary Studies. Because of space limitations, the names of individual faculty and staff who signed on in support may be read at the AAAS website: http://www.duke.edu/web/africanameric/"

What "happened" was that a hoax was perpetrated and the Duke Three and the families and teammates and their families were the victims!

If and when the 88 are sued as a result of their issuance of the incendiary “Social Disaster” ad and/or other malicious and/or reckless things or acts, their names will appear in the complaint or the complaints!

Duke students being railroaded should be presumed to be innocent, instead of used to promote political and personal agendas.

Then again, what should be expected of faculty at a university led by Mr.  Brodhead?

Not long after the hoax began, President Brodhead issued the following “Response to the Duke Lacrosse Situation”:

”Dear Duke Alumni and Parents,

“Last week I wrote to you about the allegations against members of the Duke men's lacrosse team, which have troubled me and everyone else at the university and our surrounding city. Today I have written to our community to announce five steps we are taking to address the issues raised by those allegations. They include an investigation of and changes to the lacrosse program, an investigation of our administrative response to this situation, an examination of Duke's student judicial process and practices, an evaluation of our campus culture, and the Richard H. Brodhead appointment of a presidential council to offer guidance on these matters. I also look forward to continuing a dialogue with leaders in Durham and at North Carolina Central University.

“I hope you will read the following letter http://www.dukenews.duke.edu/2006/04/rhbletter.html. I want you to know that I believe a stronger and better university will follow our united efforts to address the problems before us.”

I believe that Mr. Brodhead’s resignation or removal is the first step toward “a stronger and better” Duke University.

It is NOT as if Mr. Brodhead was NOT put on notice.

Example: An April 10, 2006 e-mail to Mr. Brodhead, the text of which immediately follows.

“Dear Mr. Brodhead:

“I write to ask you to consider two questions. First, does your response honor or dishonor the presumption of innocence? Second, is your response one you would welcome if your son were wrongly accused of a horrific crime?

“We now know that the complainant - she is not a victim unless you presume guilt - did not bear the DNA of any of those she accused. Not on her body, not in her body, not under her nails, and not on her clothing. That is certain. In court, it is alone enough that any defense lawyer, any prosecutor, would bet confidently on acquittal. Here it means there will never be an indictment. You can take that to the bank.

“And - we have been told that pictures reveal that before any disturbance arose, (1) this complainant already bore the scratches she falsely blamed on Duke students; and (2) she was severely impaired by alcohol or another substance. We have no evidence that anything she says is trustworthy.

“Had Duke indulged the presumption of innocence - by saying the University respects the presumption of innocence and would withhold comment until the legal process had proceeded far enough to make an intelligent assessment - 46 of its students would not have been so insensitively maligned by the university charged with acting in loco parentis.

“Would you have said any of these things, all from your April 5 letter, about your own son, had he been one of the 46 presumptively innocent students?

  • Rape is the substitution of raw power for love, brutality for tenderness, and dehumanization for intimacy. It is also the crudest assertion of inequality, a way to show that the strong are superior to the weak and can rightfully use them as the objects of their pleasure.
  • Why are you discussing a heinous crime as if it has occurred?
  • Doesn't this language suggest that you believe the complainant?  
  • If you indulged the presumption of innocence - by disbelieving a lurid tale told by a witness whose credibility is facially suspect - would you have expressed such contempt for the conduct she alleged?
  • Isn't it impossible to express contempt for rape without endorsing a claim you should be presuming false?
  • When reports of racial abuse are added to the mix, the evil is compounded, reviving memories of the systematic racial oppression we had hoped to have left behind us.
  • THE evil? What evil? Evil? That which has only been alleged, and which you and Duke should presume did not occur? Is it evil if it did not happen? Or is the false complaint of rape the first evil, and the acceptance of that false tale the second?
  • Memories of systematic racial oppression? Are you helping the prosecutor with his closing argument in a case which, despite your encouragement, he will never even file?
  • Do these words reflect your belief, propelled by the presumption of innocence, that these young men have been falsely charged - or just the opposite?
  • Such conduct is completely unacceptable both within the university and in our society at large.
  • What conduct? That which has only been alleged?
  • Is it consistent with the presumption of innocence to assert that conduct that has only been alleged is "completely unacceptable"?
  • Do you find acceptable the complainant's trade and abuse of alcohol or drugs?
  • If, as it appears, the complaint is false, defamatory, and malicious, do you find it acceptable? 
  • Wouldn't you be miffed or worse if Duke faculty members spoke out against strippers and prostitutes preying on Duke students?
  • And wouldn't you be outraged if Duke faculty members took the stump to inveigh against defamatory charges by lawbreakers whose claims should be presumed false?
  • I pledge that Duke will respond with appropriate seriousness when the truth is established.
  • Doesn't this suggest - strongly - that you expect the truth to be what the complainant alleged, and not what the Duke students said?
  • Don't you have it exactly backwards, if innocence is presumed? Isn't this statement utterly inconsistent with the presumption of innocence?
  • If you believed the truth were that the complaint was fraudulent - as it now appears - would you have sworn that Duke would take "serious" action when the truth was revealed?
  • If the complainant is a liar, what serious action will Duke take? Did you have any in mind? Or were you threatening serious action only when, as you imply, her claims are proven true?
  • If you say you will take serious action when her claims are proven false - as it now appears - what will that action be?
  • Will Duke sue the complainant for defamation?
  • Will Duke fund the students' suit against the complainant for malicious prosecution?
  • Will Duke publicly criticize the Durham DA, who I understand is running for reelection?  
  • But it is clear that the acts the police are investigating are only part of the problem.
  • If the acts being investigated did not occur - if there were no rape; if the complainant is a liar - then obviously those acts, not having occurred, are not a problem.
  • Aren't you standing the presumption of innocence on its head, again?
  • But if the dark aspect is not the whole truth, this is not a moment to take comfort or mount defenses.
  • The dark aspect? You mean the tale told by the complainant? Aren't you implying that tale is dark because it is true? Surely it is not dark if it is contrived.
  • Don't mount defenses? To whom are you speaking? Are you saying those wrongly accused should simply roll over, confess to something they did not do?
  • If these allegations has been made by an impaired white stripper against black Duke students, would your response have been the same? Think hard on this one. We both know the answer.
  •  I assure you, however, that the Duke disciplinary system will be brought to bear as soon as this can appropriately be done.
  • Is this the presumption of innocence? Threatening disciplinary action before you know the DNA results, before you have seen any of the exculpatory evidence now coming to light?
  • If you were a judge, wouldn't you recuse yourself - and admit that you are severely prejudiced? I assure you that your letter would get you recused at the courthouse, and in a heartbeat. But then you were not making any attempt to react objectively, as would a judge - were you? Your bias was open and obvious, politically correct.
  • I know you do not intend to punish Duke students' use of alcohol. If that were the offense, you'd be threatening 2/3 of the student body.
  • What, then, is the offense, and who committed it? Do you have a count? Do you have any evidence? Have you drawn up the charges?  
  • Have these students already been punished by the false charges, and by Duke's endorsement of them?
  • Their lives are in turmoil, perhaps stained forever, and your response is a big part of that injustice. What more do you wish to do to them, acting in loco parentis?
  • We learned the full magnitude of the allegations only gradually. 
  • Why do you feel compelled to apologize for taking so long to repudiate the presumption of innocence?
  • Can you read your apology without realizing that you are saying that you got all lathered up over mere allegations, which came from a source that you would quickly have rejected as unreliable had the skin colors been reversed?
Had my son been there that evening, I hope he would have had the good sense to walk away. And that, of course, is what most of those young men - kids - did wrong: They were simply there. My son is a good kid. He abhors racial discrimination and physical and mental abuse of all kinds. But I cannot be certain what he would have done had he been invited to that party, had he been standing there drinking beer when the stripper walked in; and I doubt many fathers could honestly say otherwise.

“I can tell you this much. When I was at Duke in the early 1970's, I saw a stripper in a dorm, right on the campus. I saw a lot of beer drinking in dorms. I'm sure it still goes on. It is bad conduct. But those who engage in it should not be publicly villified by the university. And that is what you have done.

“You have a responsibility to Duke students who appear to have been falsely charged with a hideous crime. You have failed miserably to discharge it. I am embarrassed at the incident, which your conduct has magnified and aggravated.

“Please step back. Consider how you might begin to level the scales of justice, at least try to revive the presumption of innocence. It is time for another letter. Your first one was way out of line. If you were an elected official, you should be recalled; a judge, recused; a university president - canned. None of that will happen, because you have a nose for political correctness, which is apparently triumphant at Duke, far ahead of the presumption of innocence. I am sorely disappointed. Please try again.”

President Brodhead continued to stick to his guns until the Duke case was in free fall and Mr. Nifong, nearly politically dead.  Seeing the huge handwriting on the wall, he unapologetically invited Reade Seligmann and Collin Finnerty to return to Duke University, in what seems to me to be part of a legal strategy to attempt to mitigate damages in anticipation of a lawsuit.

The writer of the wise warning letter made but one mistake: assuming that the criminal justice system in Durham County was not corrupt and therefore there would not be an indictment.   

Durham County and Duke both desperately need purifying instead
Of continued shameless leadership by Messrs. Nifong and Brodhead.

Michael J. Gaynor

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Biography - Michael J. 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.

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.

Gaynor's email address is gaynormike@aol.com.


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