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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:  March 16, 2007
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Duke Case: Fair, Smart and Right from the Start Independent Women

The real Duke lacrosse scandal is that the criminal justice system was perverted because (1) a pathetic†political opportunist saw his chance and took it, (2)†his pandering to black voters worked in Durham County, North Carolina and (3) the politically correct/hardline feminist folks especially in the media and at Duke wanted it to be true.† The Hoax had the trifecta of race, class and gender and therefore was "too good" for so much of the media to†doubt. It†was the lives of wealthy white males from out-of-state that Mr. Nifong was trying††to wreck, so the leftist media was not inclined to believe instead of check.

All this because Mr. Nifong craved a bigger pension, election at last and his fifteen minutes of frame and so tried to frame.

What a shame!

BUT...the Independent Women's Forum in no way is to blame

Feminists including television's Susan Estrich, Nancy Grace and Wendy Murphy†and The News & Observer's Ruth Sheehan were easily deceived and quick to feel aggrieved, but women who checked Independent Women's Forum instead of the mainstream media for news on the Duke case were not (or should not have been).

LieStoppers recently announced: "The Independent Women's Forum, a Washington D.C. based, non-partisan, non-profit organization is hosting a panel tomorrow evening, Thursday March 15, 2006 at 5:00 pm which will discuss Defendant Nifong, the media coverage, and the role of Duke University professors in the Hoax. Panelists include Stuart Taylor Jr., senior writer and columnist for National Journal magazine and Christina Hoff Sommers, author of Who Stole Feminism? and The War against Boys. IWF's Allison Kasic, who was featured on the cover of the New York Times Magazine in May 2003 as one of the top student activists in the country, rounds out the panel. CNN legal analyst Jeffrey Toobin will moderate."

Being in Washington, D.C. that afternoon, I stopped in to catch the first part of the program entitled "What Went Wrong at Duke? A Look at the Prosecutor, the Press and the Professors in the Duke Lacrosse Scandal."

It was a long title, but I still†regretted that the Duke administration was not included in†it, because the way the Duke administration responded to the bogus rape claim was wrong too.†

Members of the 2005-2006 Duke University Men's Lacrosse Team were told at the direction of the Duke administration NOT to talk to their parents and led to believe that things would be fine (since there was no gang rape).

It will be fitting if Duke is sued for practicing law (and practicing it badly).

Parents of the badly advised (by Duke) players have every right to feel betrayed as well as dismayed.

Yes, the Duke administration thought it could handle the matter.

So what?

It had no right to tell students not to talk to their parents, even if it expected the parents (and lawyers retained by non-parent lawyers) would "interfere."

It's called conflict of interest.

The Duke administration was NOT solely interested in the best interests of the players, obviously.

The players and the parents deserved better from Duke.

They deserved advice untainted by a conflict of interest.

Unfortunately, Durham County, North Carolina Michael B. Nifong saw and seized his opportunity and persecuted players in the erroneous expectation that he could do so with impunity (since prosecutors have a great deal of immunity).

Duke apparently was surprised that it could not control events, but miscalculation does not excuse its prejudicing†the players by discouraging parental involvement (and congratulations to the first player who realized that his parents cared infinitely more about him than Duke--he knows who he is).

The Independent Women's Forum's Charlotte Allen figured out early that the real scandal was the way the players were mistreated† and her posts during April of 2006 on the IWF website showed a commendable concern with due process and evidence instead of rushing to an erroneous misjudgment.

From "Presumed Guilty at Duke, Despite Lack of Evidence" (Great title!), posted on April 13, 2006:

'La Shawn Barber is tracking the case of the white Duke University lacrosse-team members accused of gang-raping, sodomizing, and beating an African-American stripper hired for a party on March 14--a case that looked big until, uh, all 46 white members of the team were DNA-tested and the results came up negative. (The alleged victim claimed that she had lost several fake fingernails torn off as she clawed her assailants in an attempt to escape, and the DNA tests were run on the nails as well as the players.) Nor was there any other evidence of a sexual assault at the party premises, according to police who arrived there one minute after someone called the police to complain about racial threats coming from the house.

"Nonetheless, Durham County D.A. Mike Nifong plans to go ahead and press charges anyway, against somebody or other on the team based on some kind of evidence or other. And the usual array of man-hating fems and whites-hating black demagogues is holding the usual array of marches, candle-light vigils, letters to the editor, and calls for the summary imprisonment of all Dukeís white lacrosse players (whose season has already been suspended), even though no charges of any kind have been filed against any of them.

"The situation, as La Shawn points out, is outrageous....

"...La Shawnís got plenty oí links, including this one detailing efforts by the team members and their parents to fight back and this column by John Leo. La Shawn writes:

'The next time a black woman cries white gang rape, people will be more skeptical because the fake rape allegations at Duke will be fresh in their minds. The next time any woman cries rape, people will be more skeptical because the fake rape allegations at Duke will be fresh in their minds. Itís not fair, but itís human nature....

'This fiasco adds fuel to the victimhood fire in America that is already burning out of control. No one is responsible for his own actions, and itís always someone elseís fault that weíve made a sordid mess of our lives. If youíre black, all you need do is tell your sob story to bored, useless "ícivil rights"í groups like the NAACP, and the jaded, left-leaning media will handle your PR."'

From "Mailbag: Crying Rape at Duke," posted on April 17, 2006.

†"Several of our readers complain about our cynical coverage of the gang-rape accusation made by an African-American stripper against white members of the Duke University lacrosse team on March 14--an accusation that has proven problematic, to say the least, when all 4[6] white members of the Duke lacrosse team were DNA-tested and the results came up negative. That hasnít stopped campus feminists from screaming and Durham, N.C. District Attorney Mike Nifong from planning to press charges against someone or other on the team, despite the absence of any evidence connecting any lacrosse player with sexual assault of the woman...."

†From "Crying Rape at Duke: Part 3," posted on April 18, 2006:

"The other shoe has finally dropped from the foot of Durham County, N.C., District Attorney Mike Nifong with the early-morning arrests today of white Duke University sophomores and lacrosse players Reade Seligmann and Collin Finnerty for the rape, kidnap[p]ing, and assault of an African-American stripper hired to entertain the team the night of March 14.

"Itís already strange, for as La Shawn Barber notes, according to a search warrant issued in the case, the woman claimed that she had been raped by three white Duke lacrosse players, whom she named as Adam, Bret, and Matt. Furthermore, as we all know, no DNA matches were found to implicate any of the 46 white players on the Duke lacrosse team, even though there should have been plenty of DNA left behind, for the alleged victim claimed that she had scratched and fought the rapists so hard that she had torn off several false nails, nails that were recovered from the party house by police.

"As we know, the entire team has already been tried and convicted in the minds of Nifong (whoís running for reelection in racially tense Durham) as well as the usual gang of feminist and black agitators. Mary Katherine Ham writes:

'"They shouldnít be presumed guilty because there are racial tensions in Durham; they are not guilty because they are white and privileged and their alleged victim was black; they are not guilty because there is a "culture of sexual entitlement" in collegiate athletics; they are not guilty because they had a stripper at their party; they are not guilty because making an example of them might "raise awareness" of all these important social issues and might, just might, prevent the rape of one woman.'"

At the conference, CNN legal analyst Jeffrey Toobin purported to explain†the theory of the supporters of the heinous, but bogus, charges: "SOME CRIMES ARE SO IMPORTANT NOT EVEN INNOCENCE IS A DEFENSE."

I think Mr. Toobin said that as a joke.

But, it IS reminiscent of what North Carolina Central State student Chan Hall told Newsweek last spring.† Mr. Hall said that he wanted to see the Duke students prosecuted "whether it happened or not. It would be justice for things that happened in the past."

That was NOT a joke.†

That's NOT funny.

Ms.

From "Mailbag: Crying Rape at Duke: Part 4," posted on April†19, 2006 (in response to an request to withhold judgment on the accuser):

"Just to clarify: The expression 'crying rape' (like 'crying murder' or 'crying theft') doesnít mean the accuser is necessarily a liar. It just means sheís an accuser.

"As to whether the woman was telling the truth when she claimed that three drunken lacrosse players ganged up on her in the bathroom and spent 20 minutes savagely raping and sodomizing her (all the while leaving behind no DNA evidence whatsoever and carefully addressing each other by fake names so she wouldnít find out who they were), I offer this transcript (courtesy of La Shawn Barber) of ABC Newsís commentary on a series of time-dated photos taken by a Duke student who happened to be at the party (ABC says the photo times were corroborated by the times on a studentís watch that happened to be photographed):

"'11:02 p.m.: The first picture shows at least 10 students hanging out in a living room, apparently waiting for the dancers to arrive. Most of the students appear to be drinking. By the number of people in this photo, it appears only a fraction of the 47 lacrosse team members are there.

"'12 a.m.: This is the first picture of the strippers. Students are watching the show, but not grabbing or attempting to touch the women. Bruises are clearly visible on the legs and thighs of the alleged victim.

"'12:00:40 a.m.: Another picture taken 40 seconds later shows bruises on the accuserís knees. Her right knee appears to have an open cut.

"'12:03:57 p.m.: About four minutes after arriving, a picture shows the strippers leaving the room. The photo clearly shows that the alleged victim left behind one of her shoes.

"'Between 12:10 a.m. and 12:30 a.m.: No photos were taken between this time.

"'12:30:12 a.m.: The next photo shows the alleged victim on the back porch, carrying what appears to be her purse and a makeup bag. Her clothes are intact.

"'12:30:47 a.m.: A photo taken 30 seconds later shows the alleged victim on the porch and she appears to smile.

"'12:31:26 a.m.: But 30 seconds after that, a photo shows the alleged victim stumbling down the back steps of the house.

"'12:37:58 a.m.: A series of photos are taken, all showing the woman lying on her left side on the back porch, seemingly passed out or asleep. She had visible cuts on her legs and buttocks that did not appear in the previous photos.

"'The cuts may be from falling. The cuts on her buttocks line up with the edge of a screen door she may have hit on the way down.

"'12:41 a.m.: The final photo shows the accuser and the second dancer in a black car. The accuser is in the passengers seat.

"'Many of the photos taken on the back porch show pink splotches, which the defense says is undried nail polish. They claim the accuser was polishing her nails in the bathroom between 12:10 a.m. and 12:30 a.m. - - not being raped.'

"Yes, the alleged victim could well have been raped and beaten that night. But after reading the above, do any of you actually think those crimes occurred at the Duke party house?"

By April 20, 2006, in "Mailbag: Crying Rape at Duke, Part 6," Ms.††Allen was even stronger:

"Ok--more on the alleged but evidence-free Duke lacrosse team rape of a stripper on March 14...this time from reader Beth:

'When you say that the grocery store security guard says that the alleged victim had not been raped, are you trying to imply that a rape or sexual assault occurred between the time she was in the grocery store parking lot and when she arrived at the hospital? The hospital rape examiner said her injuries and demeanor were consistent with sexual assault. If there were no injuries in the grocery store parking lot, how did they get there by the time she was at the hospital?

'Concerning the lack of evidence in the bathroom - wasnít it almost two days between the alleged assault and when the police searched the bathroom? Are you saying the lack of evidence (although there actually was some evidence in the bathroom - DNA of two people on a towel) means nothing happened? You are saying there is no chance someone cleaned up in there? There is no chance the fake nails left in there could have been washed of DNA? Were all the men checked for scratches the day after the alleged rape? What was the result of the examination of all the men? Usually in a rape case if they have a suspect soon after the alleged event they check him for injuries.

'The alleged victim was "passed-out drunk" in the grocery store parking lot, and according to the other stripper, they were both offered drinks at the party. The other stripper did not drink anything, but the alleged victim did, and according to the other stripper, within minutes the alleged victim became glassy-eyed and started stumbling. What do you think this means? Could she have been drugged? Would that explain why she appeared to be "passed-out drunk" in the parking lot?

'What kind of 19-20-year-old men have K-Y jelly in their home? What do you think they needed that for? Why are the "girlfriends" of lacrosse players at Duke called lacrosstitutes? What do you think that means? What kind of young man taunts a stranger by calling him gay and then crosses a street to punch him repeatedly? What kind of character do you think he has? Why did Duke warn the lacrosse coach of the unacceptable nature of his teamís behavior a year prior to the sex party?'

"First, Beth, read this fair and thoroughly reported Newsweek story (thanks, La Shawn Barber). The reason the security guard said that it didnít appear to her that the victim had been raped was because her clothes didnít look disheveled and she was in no particular state of anxiety. Instead, she was apparently passed out in the back of a car. Hey, maybe she really was drugged with a 'date-rape' drug (although there is no evidence whatsoever that any such a drug was even present in the house, much less administered to her). But arenít date-rape drugs designed to induce compliance in a date-rape? Doesnít that contradict the victimís statement that she scratched and clawed at her assailants as she resisted, not complied? Same with the fake nails. Either she lost those nails fighting the rape (which would have resulted in DNA evidence) or she didnít. But is she didnít why did she tell the police she did? Again, you canít have it both ways. And wasnít it a little dumb for the guys to scour the entire bathroom, including the false nails, of DNA, while leaving DNA-soaked towels just lying around? Remember that the second stripper has already changed her story numerous times, has been caught lying about the incident,† has attempted to market her yarn for dollars though a PR firm, and has a conviction for embezzlement, a crime of dishonesty that can be used at trial to cast serious doubt on her veracity.

"Yes, the victim had injuries indicating that something untoward happened to her that night: rape, rough sex, a beating, something. The trouble is, itís highly unlikely, given the state of the evidence, that it happened at that party. And there is even less evidence that either of the two arrested lacrosse players, Col[l]Finnerty or Reade Seligmann, did the deeds. The timed photos donít even place Finnerty at the party, and Seligmann has cell-phone and taxi records showing that he was either on the phone, in a cab, or both, during the 20-minute interval when the alleged rape occurred. Hey, maybe he was literally having phone sex! And remember that Fin[n]erty and Seligmann were arrested on the basis of a legally laughable photo-lineup in which the victim was shown pictures only of members of the Duke lacrosse team. Wait until the prosecution tries to introduce that into evidence?

"As for your last paragraph, Beth, you raise issues of character. No, I donít think that 19- and 20-year-old college students should be fooling around with sex-enhancers, treating their girlfriends like hos, flinging racist epithets at African-American women, or taunting gays on the street. Or inviting strippers to their drunken parties, or sending nasty e-mails. I believe that both the Duke lacrosse team and its coach were properly disciplined for enabling and indulging in highly ungentlemanly conduct unworthy of athletes who have the honor of wearing the Duke jersey. (Do read Anne Coulter and Naomi Schaeffer Riley on the subject).

"These deplorable excrescenses, however, if you have read Tom Wolfeís 'I Am Charlotte Simmons,' are an all-too-common feature of campus life at our nationís elite universities. Indeed, donít campus womenís studies professors actively encourage young women to be 'transgressive'---i.e. dress and behave like, uh, lacrosstitutes? Donít Eve Ensler and her 'Vagina' sisters argue that stripping for a living, or even hooking for a living,† is woman-empowering 'sex work'? Isnít sexual liberation supposed to be a wonderful thing for young women, according to femnist dogma? Remember all the pooh-poohing from Elaine Showalter and others when Wolfeís novel came out last year? So, right, the Duke lacrosse team deserves a bucketful of censure for conduct unbecoming gentlemen. But Finnerty and Reade werenít arrested for conduct unbecoming gentlemen. They were arrested for rape, a felony whose penalty is many years in prison, not getting suspended from the team for a semester. Either a rape occurred at the Duke party house, or it didnít.

"Sure, if youíre a good liberal like fatuous Slate 'legal analyst' Dahlia Lithwick, you can kind of pretend that the evidence is equally distributed on both sides:†††††††††

'And what about all this physical evidence? That unambiguous, objective scientific evidence? Supporters of the Duke students say the lack of a DNA match exonerates them. Peter Neufeld of the Innocence Project says, "Thereís an old saying that the absence of evidence is not necessarily evidence of absence." Nurses say the injuries are consistent with rape. The boys say someone else raped her. Time-stamped photos suggest that the alleged victim was injured before she arrived at the party. Other photos suggest new injuries occurred while she was there. Lost fake fingernails in the bathroom suggest a fight. The lack of any DNA material under those nails suggests she never fought back. Photos say she was intoxicated upon arrival. The second stripper implies she was drugged at the party.'

"Hey, Dahlia, you went to Stanford law school, as you never cease to remind us. 'The absence of evidence is not necessarily evidence of absence' sounds catchy, but doncha remember from your, uh, evidence class that it takes, uh, evidence, to convict someone of a crime in court? And that the burden of proof is on the prosecution, not the defense? And that the standard of proof in a criminal case isnít 'Quien sabe? Hey maybe there was a rape!' but 'beyond a reasonable doubt'?

"On this one, Iím voting with La Shawn:

'The emerging images pop right out at you: two strippers start dancing, the players get rowdy, the strippers get angry and start to leave, the players get angry and call them names as they head out, one of the strippers returns the taunts, the drunk accuser-stripper goes back in to retrieve her shoe (but may not have found it), second stripper is angry at the players and the drunk stripper, calls 911 to report name-calling, has someone else call 911 to report drunk woman in her car, cop arrives and sees drunk woman passed out, drunk woman is taken to a 'substance abuse' center, realizes she may be in big trouble because of her past drunken criminal behavior (leading police on a car chase and trying to run down an officer), claims rape, is sent to hospital where exam reveals injuries 'consistent' with rape, points the finger at three men at the party, media and black "leaders" go crazy and play up race angle, DA - in a fight for political survival - takes the race bait and vilifies 46 men, some of whom werenít at the party, tests all but the black player, and despite no evidence charges two men with rape.'"

The ladies were right.

It took until December for the bogus rape charges to be voluntarily dismissed.

The remaining ridiculous charges--kidnapping and sexual assault--have yet to be dismissed (although they will be).

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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