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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:  August 21, 2006
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Duke Students Should Protest Gagging Duke Case Witnesses

The Chronicle, Duke University's independent newspaper, broke the story andwas on top of the Duke case, as it should have been. With school beginning again, The Chronicle again should take the lead and condemn the outrageous, unconstitutional gag order issued during the summer.

The Chronicle, Duke University's independent newspaper, broke the story andwas on top of the Duke case, as it should have been. With school beginning again, The Chronicle again should take the lead and condemn the outrageous, unconstitutional gag order issued during the summer.

On July 19, 2006,The Chronicleposted a powerful and poignant article by John Taddei, to which Greg Beaton and Ryan McCartney contributed: "Living A Nightmare: Lax players speak out." Ironically, two days earlier, Judge Kenneth Titus had issued a gag order to stop potential witnesses from communicating with the media, and two days later the defense lawyers had filed a joint motion, among other things, to "limit its purview to the lawyers involved in the prosecution and defense of the case and remove from its purview all potential non-lawyer witnesses, including the members of the 2006 Duke University Men's Lacrosse Team." The motion is still pending, making it much harder for The Chronicle to do a much needed follow-up to an outstanding article.

Obviously there arestill somewho prefer that the lacrosse players live a nightmare and NOT speak out. That is an outrage up with which The Chronicle (and the Duke University student body and faculty) should not put!

The awesome article initially focused on Bo Carrington, a lacrosse team member lucky enough not to be indicted but admittedly dumbstruck for some time after the false gang rape claim was asserted:

"Bo Carrington wanted to say something, anything. Surrounded on the quad in the middle of Duke's West Campus, the lacrosse player wanted to convince protesters that neither he nor any of his teammates were rapists. But Carrington, a sophomore, couldn't muster a word.

"'You know what happened that night!' shouted one member of the crowd. 'Why aren't you saying anything?'

"They had known who he was right away--that he was one of them, even as he walked across campus without a single piece of Duke lacrosse gear adorning his formidable 6-foot-4, 220-pound frame.

"Carrington began to speak up in response but the words eluded him. It was maddening, but he was speechless."

Mr. Carrington explained more than three months later how he then felt: "It's awful because you want people to know the truth, you want people to know what really happened, but they don't want to hear that."

His problem: "If nobody's guilty then you can't tell them who's guilty."

The Chronicle described what campus life was like for members of the Duke Men's Lacrosse Team: "During those weeks in early April, Carrington and his teammates encountered pictures of themselves plastered around campus like WANTED posters. Posters that, in their minds, conveyed a predetermined judgment: guilty."

The court had not issued a gag order then, but it would have been superfluous, because the lawyers had taken control and advised the team members to do what Durham County, District Attorney Michael B. Nifong really wanted them to do: stay quiet while he publicly challenged them to tell "the truth" about what happened at that unfortunate party.

The Chronicle succinctly summarized what happened and suggested the detrimental effect it had on the team members:

"The team issued no public statements in the weeks following DNA testing, except a release drafted by the team's captains that declared their 'unequivocal' innocence. As the media and public continued to deliberate, some concluded that the players were standing complicit in their solidarity to protect the guilty parties within their ranks.

"'my gut reaction was let's get out, let's tell our side of the story, this is a joke, let's get out there and make sure people know this is false,' Tony McDevitt said.

"But the lacrosse player followed the strict advice of lawyers and bit his tongue."

That created the false impression that there was a cover up when there was none: "'A lot of people said in the beginning, "Oh this is like a wall of defense. This team is tight like brothers,'' McDevitt said. 'Granted, we are a tight team. I love evbery one of the guys on my team, but if something like that happened there's no way everyone would be like that. It's wrong in every sense.'"

Earlier, the whole team had rebelled against conventional legal wisdom. Newsweek reported it this way: "The order had come, signed by a judge, requiring that the Duke lacrosse team give DNA samples. The prosecutor was trying to identify the three players who had allegedly raped an exotic dancer at the house rented by three of the team's co-captains on the night of March 13-14. All 47 players had gathered in a classroom near the lacrosse field to hear their lawyer, Bob Ekstrand, tell them what they needed to do. Ekstrand was about to tell the players that they could appeal the order as 'overbroad,' too sweeping in its scope, when the players got up and started heading for their cars to drive downtown to the police station. (The team's one black player was not required to go; the accuser, who is black, claimed her attackers were white.)"

But, team members generally defer to the alleged wisdom of their lawyers and held their tongues.

Mr. McDevitt told The Chronicle he preferred to speak: "I don't want to be quiet about the issue. I feel that leads [others] to be more inclined to think that something suspicious is going on."

Quite right.

The Chronicle also reported: "Despite the unending carousel of questions, many other players have also embraced an open dialogue about the situation. In turn, the players have received an outpouring of support from their friends, families and colleagues."

Commendable. And one more reason why the unconstitutionally broad gag order is outrageous.

Mr. Carrington frankly explained what it was like to be a team member while the accuser and the prosecutor decided which three would be falsely accused and wrongfully indicted and prosecuted: "Half of you wants it to be you to take the bullet for the team. The other half wants to stay as far away from it as you can."

Team member John Walsh offered insight into the suffering that resulted from the phony gang rape claim: "My mom, her Easter was the worst Easter of her life--the whole day she's sitting there crying, hugging me and stuff." (Fortunately for him and especially his mom, Mr. Walsh was not selected from the photos of the white team members from who three innocent young men were picked for persecution.) The Chronicle reported that Reade Seligmann "seemed more angry than upset" when he was indicted and that he and his father "drove around Durham attempting to contact individuals and collect information that could potentially corroborate Seligmann's alibi." Mr. Carrington put it this way: "They just got on the horse right away, getting it ready to go. He didn't seem that upset. He seemed more kind of like, 'Alright, now's it's on.'"

It turned out that Mr. Seligmannassembled awesome alibi evidence and The New Black Panthers who threatened him did not have a clue about the kind of person he is.

The team is conflicted on whether there should be an immediate dismissal of a baseless case or a trial at which the Duke Three will be exonerated and the accuser and the prosecutor exposed.

Mr. Carrington: "I think half of us want to get it dropped tonight or today. But at the same time, we want everything to be right out on the table and we want people to know what really happened. Half of you wants it to go to trial so that all of the facts do get shown, but at the same time, those guys are having a hard time right now that you want it to get dropped as soon as possible."

Getting the gag order lifted would facilitate having the case dropped as soon as possible.

The article prompted many posts, including this one by a Democrat that largely explains why what is wrong with Durham led to the media circus that is the Duke case:

"The University simply hasn't done its homework about the true character of politics at the local and state levels in Durham and Raleigh, politics which often comes into play as a sweeping ground-level force pushing nefarious and unjustified prosecution against individuals associated with the Duke community when not only were they innocent of the charges brought so irresponsibly against them but indeed, when political and bureaucratic manipulation had to have taken place for the charges even to have been brought in the first place.

"Duke needs to come to grips with the way things are politically in the city and county in which the university is situated and warn its faculty, staff and students of the political excesses running rampant in Durham and Durham County and all to frequently in the nearby Capital City of Raleigh.

"Paradoxically, a university which has a popular image nationally as 'a Northern sort of place' has become quite anti-Northern in fact in recent years, not merely in how it regards individuals from Northern locales who attend Duke as students but also in how it regards Southerners who look to Duke as a bridge to greater understanding of the economic climate and cultural heritage of the South and the North. Southerners who might have had a chance to attend Princeton or Yale may hope Duke will also adopt a healthy national outlook toward all things intellectual, artistic and academic, but there is actual institutional prejudice against Southerners who wish to know as much about Albany and Philadelphia as they do about Nashville and Atlanta.

"This case simply was never 'there' from Day One, yet practically the entire political and educational establishment in downtown Durham, along with key leadership associates in Raleigh and Charlotte, rushed to the false conclusion that these fine Duke men must have been responsible for the alleged offenses.

"The entire legacy of Dr. Martin Luther King Jr. was turned inside out as Durham pushed away the platforms and tables of the high principles of justice based on the even-handed and factual examination of one case and one individual at a time. Instead, a 'social' and 'political' call for legal 'retribution' became the order of the day.

"The many Democratic liberals holding faculty positions at Duke should realize now, once and for all, that in North Carolina's single most powerful Democratic county out of all 100--Durham County--the local Democratic Party has lost whatever sense of discipline and restraint it might previously have exercised at the community level in matters involving town-gown relations and has failed to support the primary planks of the American civil rights movement which provide that individuals should be judged on the basis of their character and not on the color of their skin, on the geographic region of their hometowns nor on the educational or professional aspirations of their personal lives and careers, especially as all of these factors should happen to figure in any legal proceedings brought into a court of law from the local courthouse to the U.S. Supreme Court.

"And some day, it is to be hoped that Durham's hometown daily newspaper, The Durham Herald-Sun, the first newspaper this writer ever worked for, will resolve to confront the political forces in Durham and the Research Triangle area which too often motivate the local and state Democratic parties to subject certain groups and individuals to civic, political and even judicial adversity purely and simply to please and appease certain demanding interest group constituencies rather than through the responsible administration of the laws of the land.

"David P. McKnight '70

"1990 Democratic Party nominee, U.S. House of Representatives, 9th District of North Carolina." Mr. McKnight is absolutely right.

An anonymous poster made atelling point: "The Duke LAX team had been warned by their coach that previous incidents of underage drinking, hooliganism and boorish behavior on their part had come to the attention of the athletic department. They had been told to mind their manners. Their reaction? Hey, let's party hearty and get some strippers to the team captains' house, so the underaged members of the team who couldn't legally go to a strip club could drink and watch a live sex show!"

That seems true too. But, it does NOT follow that there was a gang rape. Unfortunately, the team's silence--initially a tragic consequence of lawyers defending the innocent the same way they defend the guilty and now buttressed by an outrageous, unconstitutional gag order--has helped the prosecution persecute the Duke Three.

It was not until the end of June that Collin Finnerty's father publicly announced on NBC and MSNBCa key development in the soap opera/circus that is the Duke case:each of the Duke Three had passed a polygraph test. Better late than never. Better sooner than later. Better frank and forthright when the truth is on your side than quivering and quiet, suggesting that there is guilt to hide. In the courtroom of public opinion,speaking upis rewarded and cowering is not rewarded. When the prosecution is a persecution, the courtroom of public opinion (and "60 Minutes") are venues in which the truth can and should be presented (whether, by lawyers, it is applauded or resented).

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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Copyright 2006 by Michael J. Gaynor
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