Duke Case Lessons Should be Learned and NOT Forgotten
"Those who do not learn from the mistakes of the past are doomed to repeat them.”
"Those who do not learn from the mistakes of the past are doomed to repeat them.”
"Water under the bridge" refers to experiences and conflicts which we have decided to forget. This idiom compares these memories of the past to water which has passing under the bridge. Example: "Aren't you still angry about what he said?" Answer: "No, that was a long time ago. It's all water under the bridge."
There are a plethora of lessons to be learned from the Duke case. Treating them as "water under the bridge" would be foolish.
David Evans should learn not to host stripper parties and not to facilitate underage drinking.
Collin Finnerty and Reade Seligmann should learn to be more selective in accepting invitations.
Crystal Gail Magnum should learn that Sir Walter Scott was right when he wrote, "Oh, what a tangled web we weave, When first we practice to deceive."
Mike Nifong should learn that a prosecutor's duty is to pursue the truth regardless of political considerations, not to prosecute for political advantage.
Much of the mainstream media should learn that a criminal accusation should be investigated objectively, not hyped.
Duke University President Richard Brodhead should learn that fairness has to trump political correctness and suspending an indicted Duke student sends the message that the Duke University presumes that student to be guilty instead of innocent.
Duke lacrosser Ryan McFayden should learn that his email to teammates after the off-campus team party last March (body: "tommrow night, after tonights show, ive decided to have some strippers over to edens 2c. all are welcome.. however there will be no nudity. i plan on killing the bitches as soon as the walk in and proceding to cut their skin off while cumming in my duke issue spandex.. all in besides arch and tack please respond") was hideous, not hilarious. (Mr. McFayden deserved to be suspended for his email, but Collin Finnerty and Reade Seligmann did not deserve to be suspended under the circumstances.)
Friends of Duke University should learn that the Duke Three need supporters, not apologists reading from an approved script.
Jason Trumpbour, FODU front man, describes that organization as "a group of alumni and parents who are deeply concerned about what is happening to three members of the Duke Community" (fair) and "hardly rich or influential" (to be extremely generous, unduly modest, surely if relations and connections are taken into account) in responding to criticism of FODU in an article by Durhamite John Schwade in the August 5, 2006 issue of The News & Observer.
Mr. Trumpbour's response helpfully listed some actions that Durham County, North Carolina District Attorney Michael B. Nifong hopes will be treated "water under the bridge":
"The source of our concern is Nifong’s egregious and systematic misconduct. Nifong has made false and prejudicial extrajudicial statements in violation of the North Carolina Rules of Professional Conduct. He has invited the public to disregard the civil rights of the accused and made appeals to prejudice. He has a continuing conflict of interest due to his political alliance with another attorney who hopes to profit from the Duke case. He has manipulated witnesses. Worst of all is his violation of NCRPC Rule 3.8 which prohibits a prosecutor from avoiding 'pursuit of evidence merely because he or she believes it will damage the prosecutor’s case.'"
To be sure, Mr. Nifong is an abomination and there is an important lesson to be learned from the way he has proceeded: that prosecutorial abuse must not be tolerated.
Mr. Trumpbour: "Corruption is defined as the conversion of what belongs to the public to private use. From the very beginning, Nifong has treated this case as a personal opportunity for himself. What even his most ardent supporters fail to notice is that many of the choices Nifong has made—assigning the case to himself, co-opting the police investigation, racing to obtain indictments before the primary election and conducting an unconstitutionally suggestive lineup that is likely to be suppressed—all undermine the case he insists is a personal mission for him."
Likewise, the issuance on July 17, 2006 by Judge Kenneth Titus of a gag order that applies not only to attorneys, but to all potential witnesses (even including the defendants) in the Duke case was an egregious abuse of judicial power akin to the abuses of prosecutorial power itemized by Mr. Trumpbour. And the judges handling the case should not have out aside Reade Seligmann's meritorious motion to remove Mr. Nifong from the case.
Both prosecutorial and judicial abuses need to be exposed and rectified if justice is to prevail and the criminal justice system is to merit public confidence.
It is the privilege and duty of the voters of Durham County, North Carolina to refuse to elect Mr. Nifong on November 7, 2006 and of the North Carolina bar to deal with Mr. Nifong's professional misconduct. If what should be done is done, truth and justice ultimately will have won and future misconduct will be deterred instead of encouraged.
Compared to the prosecution and the court, the defense has been admirable. But it too is not above criticism. It has played into the hands of the prosecution, for example, by not releasing all of Mr. Nifong's production promptly and thus let Mr. Nifong's media defenders hold out the hope that the defense was leaking selectively and Mr. Nifong had compelling evidence when he does not.
In addition, only Reade Seligmann's alibi evidence was made public. Whether it was a deliberate defense strategy or not, it was a boon to Reade's defense and a burden to the defenses of his co-defendants. The obvious suspicions were that they had something to hide or needed time to create a plausible alibi. The reality is that they too were innocent, and they (or their lawyers) feared that releasing details would give the prosecution additional time to harass innocent witnesses and perhaps do even worse.
David Evans quickly appeared in public after he was indicted to proclaim his innocence as well as the innocence of his indicted teammates, and passed a polygraph test. That is particularly important, since polygraphs are important tools regularly used by police and prosecutors and William Kennedy Smith was not charged with rape until his accuser had passed TWO polygraph tests. The co-defendants should have done the same earlier, or promptly after David did. They waited weeks, but at the end of June Collin Finnerty's father publicly announced that each of the Duke Three had passed a polygraph test.
Lawyers, particularly local lawyers, tend to defend the innocent and the guilty the same way (to the benefit of the guilty and the detriment of the innocent), and they are reluctant to charge a prosecutor and/or a judge with misconduct, but the innocent do not deserve to be defended as though they are guilty and when a prosecutor or a judge exceeds his or her authority and/or abuses his or her discretion, that's what a lawyer is supposed to do.
There are many other important--and obvious--lessons to be learned from the Duke mess. Example: the merits of a case should not be judged on the basis of skin color or race.
Duke Law School Professor James Coleman, who chaired a committee to investigate the lacrosse program, concisely explained what was happening in the Duke case and why it threatens everyone, especially poor blacks:
"You've got a prosecutor playing to race. It's disgusting. If he's willing to [make race an issue] to go after what he thinks are three white kids with influence, what will he do going against some poor black kid in a case where people are saying, 'You've got to convict somebody?'
"To me, a prosecutor who's willing to cut corners in any case is a prosecutor who's subverting justice."
William A. Chafe, Duke's Alice Mary Baldwin Professor of American History, wrote an article posted in The Duke Chronicle on March 31, 2006, opining that "[t]he events that occurred [at the lacrosse team party] are part of a deep and troubling history."
"Racism has always constituted the original sin of our democracy.... Race also stood as a primary source of power for those whites with privilege.
"But so did gender....Sex stereotypes, like race stereotypes, provided vehicles for the collective denigration of whole peoples-witness the pernicious humor associated with portraying women as scatter-brained, or blacks as lazy buffoons. Sex and race were both instruments of domination. White men of means could access and exercise power. Through most of our history, African Americans and women could not....
"Worst of all, sex was an instrument by which racial power was manifested and perpetuated.... White slave masters were the initial perpetrators of sexual assault on black women, but subsequent generations continued the pattern, which is why black parents, for so many generations, feared letting their daughters take on domestic service roles in white households, where white males could molest them.
"To make matters worse, white men portrayed black women as especially erotic, more driven to sexual pleasure and expressiveness than white women; and then, in a perverse form of projection, created the specter of black men seeking to rape white women. That is why most lynchings of black men in the late 19th and early 20th century were justified by accusing black men of lusting after white women-even though there was little evidence that such attacks ever took place.
"So sex and race have always interacted in a vicious chemistry of power, privilege, and control....
"What has all this to do with America today, and with Duke? Among other things, it helps to put into context what occurred in Durham two weeks ago. The mixture of race and sex that transpired on Buchanan Boulevard is not new. Whether or not a rape took place (and this is an issue that needs to be assessed objectively and with full fairness to everyone), there is no question that racial epithets were hurled at black people. Nor is there any question that white students hired a black woman from an escort service to perform an erotic dance. The intersection of racial antagonism and sexual exploitation is all too familiar.
"The real issue is how we will respond to this latest example of the poisonous linkage of race and sex as instruments of power and control....
"The choice is ours to make."
Professor Chafe is right that the issue of whether or not a rape took place "needs to be assessed objectively and with full fairness to everyone" and that the choice of "how we will respond" "is ours to make," but by now it is obvious that no rape occurred; black strippers showed up even though white or Hispanic ones had been ordered; and the lacrosse team party, though shameful, was NOT "the poisonous linkage of race and sex as instruments of power and control" Professor Chafe imagined it to be. (I have been advised that at least one women's sports team at Duke hired male strippers, so the problem is not gender specific, Professor.)
On August 22, 2006, an anonymous poster at Friends of Duke University website passionately took people like Professor Chafe to task:
"The Duke Professors that were ever so quick to proclaim the players as guilty - to denounce that class of people as the problem - to pile on and attend the campus protests where the presumption of innocence was burned in effigy - these professors should resign and hang their heads.
"Take responsibility for your actions and participation in the mob justice that dominated the area in the spring. This was racism and classism at work and on full display sanctioned by Duke Professors and administrators.
"SHAME ON YOU!"
Fortunately no one was lynched, and the Duke three promptly made bail, but Anonymous is essentially right.
That said, an anonymous poster at the Duke chronicle website also has a 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!"
The nature of the party is indefensible, but it does NOT follow that there was a gang rape and framing the Duke Three for such heinous crimes as kidnapping, rape and sexual assault is not suitable punishment for a lapse in moral judgment.
On May 24, 2006, I received an emailed stating in part as follows: "Your article on the Duke case is wonderful. As a family member of one of the accused, I can tell you how much we appreciate it when intelligent people take the time to assess the situation and write about it fairly as we feel you have done."
The article referred to was "The Deplorable Duke Political Persecutions," posted on May 23, 2006. I perceived the Duke case as enormously important for America as well as the young woman who made the gang rape charge, the young men first accused and then indicted, their families and friends, and, of course, the lawyers involved in the case.
"When a young white woman who chose to visit Kobe Bryant in his hotel room later charged him with rape, it soon became apparent that she was hoping for the local prosecutor to pave the way for her to hit the jackpot by way of a civil suit. Convinced that there was ample reasonable doubt that Mr. Bryant had committed a crime, I criticized the prosecutor for pursuing the case. I do not believe that a prosecutor should pursue a case where there is reasonable doubt, especially when there is or will be a civil suit in which the plaintiff hopes for a free ride at taxpayer expense. Unsurprisingly, the criminal case against Mr. Bryant eventually fell apart, and Mr. Bryant later settled the civil claim in order to get on with his life.
"When a young black woman who chose to strip at an off-campus Duke lacrosse party later charged Duke lacrosse players with rape, I suspected that it was not the Duke lacrosse players were guilty only of bad taste, not rape. Subsequent developments have repeatedly confirmed my suspicion. But, the local prosecutor continues to prosecute three Duke players on what surely seems to be a phony rape charge.
"Today the news is that documents show the accuser first claimed that she was not raped, then claimed that she was raped by twenty Duke lacrosse players and eventually whittled that down to three (the same number she settled on when she charged some non-Duke males with rape years ago).
"What we appear to have here is an accuser who should be prosecuted, three Duke lacrosse players who never should have been indicted, a prosecutor abusing his office and the New Black Panthers out to exploit the situation while posing as champions of black womanhood. (The KKK championed white womanhood.)
"America's top legal commentator, Stuart Taylor Jr., had written that 'the available evidence leaves [him] about 85 percent confident that the three members who have been indicted on rape charges are innocent and that the accusation is a lie.'"
Mr. Taylor opined that the Duke case has a large rogues gallery that does not include the Duke Three, but "does include more than 90 members of the Duke faculty who have prejudged the case, with some exuding the anti-white racism and disdain for student-athletes that pollutes many college faculties" as well as "former Princeton University President William Bowen and civil-rights lawyer Julius Chambers [who] went out of their way to slime the lacrosse players in a report on the Duke administration's handling of the rape scandal — a report that is a parody of race-obsessed political correctness."
Mr. Taylor's compelling conclusion: "Something is rotten at Duke, as at many universities. I don't think it has much to do with lacrosse."
Likewise, something is rotten in the criminal justice system of Durham, North Carolina, and it has much to do with politics in general and race-based politics in particular.
That said, both fundamental fairness and the helpful of acknowledging a problem in order to solve it instead of denying reality require acknowledgement that the men's lacrosse team party was a shameful affair. David Evans hosted and hired the strippers. Parties at strip clubs may be tax-deductible, but the choice of "entertainment" (regardless of color or race) is deplorable on moral grounds. The lacrosse players who skipped the party were fortunate to do so. If underclassmen did not know strippers were coming, they should have left as soon as they came and then they would not have any blame. An honor graduate of an elite Catholic high school attending such a party surely should have left. A girlfriend who had graduated from an elite Catholic high school and was attending a Catholic college deserved at least that much respect.
Mr. Taylor has made a great contribution in recognizing the truth about the Duke case and helping it catch up to the lies. That's the first step toward rectifying a sad situation being exploited by opportunists and racists. Mr. Taylor's upcoming book on the Duke case should cover many of the lessons of the Duke case that need to be learned and not forgotten.
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.