Commentaries, Global Warming, Opinions   Cover   •   Commentary   •   Books & Reviews   •   Climate Change   •   Site Links   •   Feedback
"And ye shall know the truth, and the truth shall make you free." - John 8:32
WEBCommentary Contributor
Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  July 24, 2006
Print article - Printer friendly version

Email article link to friend(s) - Email a link to this article to friends

Facebook - Facebook

Topic category:  Other/General

The Duke Three Should Learn from Justice Thomas, "Willie" and Racine

In 1991 Clarence Thomas was nominated and confirmed as an Associate Justice of the United States Supreme Court and William Kennedy Smith was accused and acquitted of rape. The Duke Three would do well to study (1) how Justice Thomas dealt with a sensational sexual harassment charge and media circus that seriously threatened his confirmation, (2) how Mr. Smith, the Kennedy family and the legal team led by Roy Black dealt with the rape charge; and (3) what Jean Racine wrote about innocence.

In 1991 Clarence Thomas was nominated and confirmed as an Associate Justice of the United States Supreme Court and William Kennedy Smith was accused and acquitted of rape. The Duke Three would do well to study (1) how Justice Thomas dealt with a sensational sexual harassment charge and media circus that seriously threatened his confirmation, (2) howMr. Smith, the Kennedy family and the legal team led by Roy Black dealt with the rape charge; and (3) what Jean Racine wrote about innocence.

Justice Thomas did not bear the burden of a family fortune or atake-charge father. He was born in a small Georgia town. His father abandoned him when he was a year old. His mother did not. She and he went to live with her father when he was seven, and his maternal grandfather provided what his father did not, and more. That grandfather sold fuel oil and ice, and grandson helped with the deliveries and learned his grandfather's lessons about the benefits of hard work and the need for self-reliance.

Justice Thomas's reading reinforced his belief in self-reliance. In 1975, the year after he graduated from Yale law school, he read Race and Economics, by Thomas Sowell. Mr. Sowell criticized government's social reforms and urged individual action to overcome circumstances and adversity. Young Clarence Thomas understood.

On July 8, 1991, President George H.W. Bush nominated Justice Thomas to replace the retiring Thurgood Marshall, America's first black United States Supreme Court Justice. The notion of a conservative black man who had criticized affirmative action and refused to pledge to support abortion on demand replacing Justice Thomas was anathema to the Left and so organizations like the NAACP and the National Organization for Women adamantly opposed his nomination, NOW's Florence Kennedy declared, "We're going to bork him," referring to the Left's slimy, successful campaign in 1987 to block the confirmation of Judge Robert Bork to be a United States Supreme Court Justice.

It appeared that Justice Thomas would be confirmed, to the consternation of his extremist opponents, but losing is as anathema to the Left as it is to Durham County, North Carolina District Attorney Mike Nifong and Anita Hill, a liberal former employee of Justice Thomas who obviously had a romantic interest in him that was not reciprocated, came forward to oppose his nomination (and have her fifteen minutes of fame), charging that he had sexually harassed her when she worked for him at the United States Department of Energy and the Equal Employment Opportunity Commission (which Justice Thomas had led).

Like the accuser in the Duke rape hoax,Ms. Hill hadmade contradictory statements that her apologists tried to explain away. But, Ms. Hill was a well-spoken lawyer and she did not have a criminal record or a sordid employment history.Hersudden challengethreatened Justice Thomas's confirmation,

Whether or not Justice Thomas would be confirmed depended on what Justice Thomas did,NOT who his father was or how much money his family had and would invest in his confirmation battle.

Fortunately, Justice Thomas had the right mother and maternal grandfather and had read the right book at the right time.

Justice Thomas did not hide, or plead the Fifth Amendment, or devise a subtle strategy. He did what the American peopleexpect under such circumstances: he personally rose to the occasion, confronted thescurrilous charges against him anddenounced his persecutors. With respect to those charges, he thundered: " far as I'm concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the US Senate rather than hung from a tree."

In addition, Justice Thomas presented compelling testimony by other female associates that made Ms. Hill's belated sexual harassment complaint look opportunistic and politically motivated instead of justified.

The Committee sentJustice Thomas'snomination to the full Senate without recommendation and the Senate confirmed, 52 to 48, with Justice Thomas receiving "yea" votes from 41 Republicans and 11 Democrats and "nay" votes from 46 Democrats and 2 Republicans.

Fair-minded people realized that the disgrace was the attempted "borking" of Justice Thomas. Unapologetic Justice Thomas haters insist the Justice Thomas had sexually harassed Ms. Hill and lament the decision not to call Angela Wright, allegedly a witness, to buttress Ms. Hill's charge, BUT, the Democrats controlled the Senate then and, since Justice Thomas had fired Ms. Wright for calling another EEOC employee a 'faggot," it's more probable than not that her testimony would have helped Justice Thomas after she was shown to be a disgruntled former employee who was not credible

The opposition to Justice Thomas was political in the worst sense of the word. But Justice Thomas battled through to win confirmation by confronting his detractors and refusing to submit meekly to "a hi tech lynching."

The Duke Three would do well to profit from Justice Thomas's personal example and philosophy. When David Evans was indicted, he did not stand mute. To his credit, he addressed and rebutted the criminal charges not only against himself but also against the two sophomores (Collin Finnerty and Reade Seligmann), whom he had put in peril by inviting them to an off-campus party at his house at which strippers were the entertainment.

Unfortunately, even though they too have passed polygraph tests, America has yet to hear from either of the sophomores. Reade's team put out detailed and (for the accuser and Mr. Nifong) devastating alibi evidence.But, Mr. Nifong tried to move the timeline and the taxi driver who had driven Reade that night (a black man, by the way) suddenly was arrested on an entirely unrelated (and apparently entirely undeserved) warrant. So Collin's team has not detailed his alibi evidence, even though his father finally publicly stated that it covers "every minute."

Suggestion to those accused of a crime: If you CAN account for every minute, do it and LETapernicious prosecutortry to move the timeline. There are only 24 hours in a day and 60 minutes in each hour, no matter how egregiously a prosecutor abuses his power. Waiting until the trial to explain what supposedly happened makes sense if the explanation is not solid and the longer and more closely it is examined, the less plausible it becomes. But, if it IS solid, let the truth be known sooner rather than later. Don't be a weak-kneed waiter.

As for Mr. Smith, he was in a world of trouble back in 1991. He was accused of rape by a credible young lady whom he had invited to visit one of the Kennedy mansions and walk with him on the nearby beach. There was no denying that there had been a sexual interaction. She was physically injured, and it was not the kind of injury that is self-inflicted by an erotic dancer's own vibrator during a performance sexual in nature. She did not have a criminal record. She was not a stripper. She was not an "escort."

In order to establish reasonable doubt, Mr. Smith had to testify. He had to be prepared to testify and to be cross-examined. He had to be transformed from "Wilie" to "young Will." And he was. Roy Black IS a great lawyer. Rush Limbaugh and Roy Black do not share the same political views, but Rush retained Roy when he was targeted by a politically ambitious Democrat prosecutor in Florida and I bet he will acknowledge that it was a great decision.

The Duke Three also are targets of a politically ambitious Democrat prosecutor, but they don't need Roy Black magic. They just need to tell the truth. They need to be prepared to speak publicly and to testify both directly and on cross examination, but they are gifted Duke students and they've passed the polygraph tests. They are charged with kidnapping, raping and sexual assault, not underage drinking and excessive loudness. They are no more likely to have kidnapped and raped their accuser than the prosecutor!

The Duke Three are all white Yankees from wealthy families and Durham is the hometown of their accuser and Mr. Nifong, but telling the truth boldly (not technical defenses and timidity) will level the playing field for them.

In 1677, Jean Racine, French poet and tragedian, wrote Phedre. Two quotes from itsuggest two different legal strategies, one bold and the other subtle, between which an accused can choose. The first--"Innocence has nothing to dread"--suggests that the innocent should not fear proclaiming and proving their innocence immediately and insistently. The sooner the Duke Threeuse it, the sooner their nightmare will end and the nightmares of their persecutors will begin. The second--"Crime like virtue has its degrees; and timid innocence was never known to blossom suddenly into extreme license"--suggests an exquisitely subtle (and silly) strategy--try to presentthe threecollege lacrosse stars as meek youngmentoo timid to have perpetrated the crimes of which they are accused. If you think that's a fine strategy, there is this bridge connecting Brooklyn and Manhattan....

The great pity of the Duke rape hoax is that none of the Duke Three had the benefit of knowing Justice Thomas's maternal grandfather. But perhaps they could read Thomas Sowell's book!

Michael J. Gaynor

Send email feedback to Michael J. Gaynor

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,,, and 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

Read other commentaries by Michael J. Gaynor.

Copyright 2006 by Michael J. Gaynor
All Rights Reserved.

[ Back ]

© 2004-2024 by WEBCommentary(tm), All Rights Reserved