WEBCommentary(tm) - Duke Case: Combat Lies with Truth

In my view, the way to respond to the big lies of the extreme political correctness crowd is by telling the whole truth, not just most of it. When the defense feared that the prosecutor would lie, conceal facts, even falsify evidence, their reluctance to tell the whole story was understandable. But that danger has passed and the current problem is restoring the reputations of ALL the members of the team vilified for months. All but a handful of the players would be better off with the whole truth known.

My "Duke Case: Follow Money, Discover All, Do Justice" article, posted July 1, 2007, pleased some, pained some and perplexed others.

That figures: people tend to be selective about the truth to be known and some think that because I enthusiastically supported the persecuted players against bogus charges, I should defend each and every one of them against anything (or at least ignore relatively minor misconduct, because they have been persecuted).

That article became "the fourteenth Michael Gaynor article that has been linked" atTalkLeft (hopefully, by now, TalkLessLeft).

Predictably, North Carolina journalist and television commentator Cash Michaels took the opportunity to blast the article as "baloney" and what I wrote about him as "pure garbage" (while protesting TalkLeft's rules).

So that article MUST have merit! (Note: Mr. Michaels and I DO agree that taking money from someone else's purse without permission is wrong.)

"A year ago, these same people spoke of monstrous capital crimes for which those found guilty would spend decades in prison, and which, they claimed reflected the state of the nation, yet they are now reduced to twittering about an alleged petty theft, which no law officer, including their own low fallen hero considered worthy of pursuing. It is all they have, so they cling to it like the last lifebelt from their vainglorious but last Titanic, knowing that were they to let go, they and their fantasy will sink without trace.

"How low they have fallen, they who once presented themselves as champions of the oppressed. Not only has their cause been exposed as a hoax, their Messiah as a charlatan and their princess a liar, but they themselves are now stripped naked before us, their vindictiveness and bile exposed for all to see.

"The tragedy, for them, is that they know it, they know they humiliate themselves and demean their cause with every word, and that apart from their tiny group of educationally challenged supporters and intellectually bankrupt attack dogs on EZboard, they are universally ridiculed. Yet to finally let go would be to give up their last hope. It is often said that love and hate are two sides of the same coin, and can it be made clearer than by these defeated remnants of Nifong's once proud troops as they embrace this title tattle like some vengeful Miss Havasham refusing to give up her faded bridal gown?.

"We can feel pity for these people but we can no longer allow them to inflict their pain on us, or seek to divert us with their half truths and insinuations. We are here to discuss grown up issues, not to provide therapeutic catharsis for the bereft.

"This is a serious message board devoted to the defense of those charged with serious crimes, whereas the so called 'crime' they wish to debate, if any such crime occurred, would be more appropriately discussed on a forum dedicated to the subjects of shoplifting, pick pockets and small town graffiti, because it is in that insignificant realm where it belongs."

"I know you will not like the way this thread has gone, and will no doubt delete a lot of the more abusive messages, however, I think some valid points have been made and that we have to address the dishonesty of those who are attempting to promote these allegations. Even if what they claim may have happened did happen, it was a crime, and it is deeply offensive to attempt to attribute to it any equivalence to any of the original allegations.

"Even if these allegations are correct I believe that it could be successfully argued that no crime occurred, and I believe that both Nifong and Cooper appreciated that fact.

"It also needs to be acknowledged that, given the circumstances which occurred, the two women were very lucky that their hosts were from the Duke lacrosse team, had their hosts been many other groups of men, these women would have risked violent retribution, whether or not the men's perception of what was happening was correct.

"These allegations must be accepted for what they are, at the very least the vindictive final shots of a group of people who refuse to accept that they were mistaken."

The political correctness extremists will do what they do, Sarah, but the allegation that money was taken from at least one stripper came from David Evans, in his March 17, 2006 written statement, not the Group of 88 or the New Black Panther Party, and David specified two teammates as possible takers.

Neither of the persons David specified was Reade Seligmann or Collin Finnerty. Nothing in any of the three co-captain written statements implicated either of those then sophomores in anything more than being present at the party. Thus, it is ironic that Reade and Collin were the first two scholar athletes falsely identified and wrongly indicted. Talk about being in the wrong place at the wrong time and the price of being a team player.

TalkLeft poster Mark Rougemon was perplexed as to " why [I] wrote [the article], what points was [I] trying to make."

Fortunately, an astute relative of a member of the 2005-2006 Duke University Men's Lacrosse Team not only understood, but clearly stated that understanding in an email to me about the article, as follows: "'Discover All' is really the heart of your new [article]. I do appreciate why you wrote it- throwing a light on ALL the events of the party in theory should stop all those who continue to say 'something must have happened...we'll never know..'"

That relative has no illusions about the difficulty of enlightening those who don't want to be enlightened: "Unfortunately we have seen that the actual facts matter little to many of those who cling to their beloved 'meta issues' and won't let inconvenient things such as facts, truth and justice derail their lack-of-thought process. Like us, you have taken the time to read the case documents; clearly most of the opposition has not, preferring to base their statements on conjecture and emotion."

In addition, that relative pointed to a possible downside: "I hope they do not choose to simply seize on the names and actions you have documented to further their ramblings without understanding what I see as your greater message-yes, some unfortunate choices were made by the team, but the much greater injustices have been perpetrated AGAINST the lax players."

I explained to the relative: "I didn't do the documenting, the three co-captains did in their written statements.... I had the written statements off the record since last year and could not write what I wrote [in the article] without using them. I didn't make them public. But they showed up on LieStoppers. So I wrote [the article]."

"But as poster abb at Liestoppers put it: What money? He won't believe there was any money paid to the dancers until he sees it listed on an IRS form 1040, as income. If it does not appear there, then the dancers are claiming it does not exist.

"Meanwhile, ABC is starting up a new comedy series this fall, 'GREEK', about typical college life at sororities and fraternities. I imagine there will be NO drinking, petting, partying, or loud music shown; otherwise everyone at ABC who criticized the laxers will be guilty of a character fault that begins with the letter 'h' (and I don't mean 'hubris', although they probably have that in abundance, too.)"

Telling the whole truth is better than pretending that the Duke case followed strippers invaded a prayer meeting.and some unfortunate choices were not made by some players in connection with that party.

Yes, all the mistakes made by players pale before the egregious "mistakes" made at their expense by others, including the false accuser, the rogue prosecutor, the Duke administration, the Group of 88, the media, the demonstrators, etc.

BUT...not even all those egregious "mistakes" make it "right" for a disgruntled customer to open a stripper's purse and take back money, even though he believed it was unearned and even taken under false pretenses.

We need to learn from the Duke case that due process and the presumption of innocence should be respected and "vigilantism" should not be tolerated.

Sarah is of two minds about me: (1) "I do not always agree with Gaynor's but I think one has to applaud him for his persistence, and that he has been on the right side from the very beginning" and (2) "I do not share Gaynor's politics, and he has a Puritan streak which I find irritating (how many times does her have to tell us he does not approve of hiring strippers before stating that it is perfectly legal to do so?!) however, I concur with the main points he is making."

Many times, Sarah. As a lawyer, I note it is legal. But what is legal is not necessarily moral. I don't want a casual reader to infer that I didn't find the stripper party morally objectionable. I do believe Moses announced Commandments, not Suggestions, and I'm a Catholic, not a Puritan.

"Which is best, from an ethical perspective? 1. Taking money back, without force or threat of force, from someone who appropriated it under false pretences (self-help restitution). 2. Suing the defrauder for restitution. or 3. Letting the defrauder walk away with the loot and making no effort to get it back afterward.

"I say One is best. Three is NDG because allowing the perp to enjoy the fruit of his fraud unmolested encourages fraud. One is better than Two because the latter is costly, time-consuming, consumes public resources, and is likely to prove ineffectual."

"I do not think it is a question of petty theft. It is an action that could be best described as a contractual dispute. We see it everyday on Judge Judy, Peoples Court etc.

"If the passing out Queen wants to take the young men to small claims court I welcome the entertainment value that could be gained from such a proceeding.

"Because if the criminal wants to f*ck with the young men I know that they would return in kind with their massive civil suit placed upon Good Ole Precious for their troubles.

"How funny that the enablers even admit in their own strange way that the LAX players are of better character than the two hustling women. By placing such value on something so insignificant as a contractual disagreement but letting pass the actions of the real low life criminals they are saying the Duke boys should be held to a higher standard.

"The selective indignation is so telling. Why judge the boys differently? Are white people to be judged differently? Are women to be judged differently? I am glad that I am not racist and hold all people to the same standards.

Trinity. of course "the Duke boys" are of better character than the two strippers, but that's not saying much, is it? Actually, they are of better character than most of their peers, I believe. But no one else had the right to open a stripper's purse, much less take out money. David Evans, whose dad is a lawyer, apparently realized it. He wrote: "I don't know if Ryan or him [Peter] took the money, but I yelled and reiterated the bodyguard message and how the cops were going to come and that we needed them out" and "took the money to Dan and told him to give it back and get them out." (That seems to me like a fellow in charge, yet one of his lawyers, Brad Bannon, emailed me, "I think it�s precious that you put so much credence in Newsweek�s characterization of Dave as MC...." Precious?)

The suggestion that a fellow who had his physical manhood insulted thereafter proved his manhood by sneakily taking money from a purse is preposterous to me. The admonition that one who sleeps with dogs wakes up with fleas contains much wisdom. Inviting strippers home is recklessly rolling the dice. To be sure, it does not justify bogus felony charges and bringing down national opprobrium on a whole team, but it would have been criminal to kidnap, rape or sexually offend a stripper if it really happened and taking money from a purse is a wrongful taking, even if the owner of the purse is a prostitute or a pimp.

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.