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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:  September 1, 2006
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The Search for a Duke Case Hero

Diogenes on Sinope used to stroll through the marketplace in ancient Athens during the day with a torch.  When asked about it, he would answer, "I am just looking for an honest man."

Diogenes on Sinope used to stroll through the marketplace in ancient Athens during the day with a torch.  When asked about it, he would answer, "I am just looking for an honest man."

Would Diogenes have had success in Durham, North Carolina in searching for a hero if he met the accuser in the Duke rape case, or the other stripper at the infamous 2006 Duke Men's Lacrosse Team party, or the Duke Three, or their teammates, or the people who investigated the accuser's charge, or the prosecutor in charge of the case, or the prosecutor's assistants, or the judges hearing the case, or the Duke Administration officials and faculty members who suspended the indicted sophomores and jumped to the conclusion that the gang rape claim had to be true?

Are there heroes in the Duke case? 

Is there ONE hero in the Duke case?

As former President Clinton might say, it depends upon how you define hero.

One website (www.occdsb.on.ca/~sel/cahero/whatis.htm) offers this definition of a hero or a heroine:

• someone who sets goals.
• someone who puts their life on the line for someone else.
• someone who makes a difference.
• someone who tries hard to be a better person.
• someone who cares for others.
• someone who comforts people.
• someone who is helpful.
• someone who recognizes a problem and tries to solve it.
• someone who puts a plan into action.
• someone who is a leader.
• someone who never gives up even when the going gets tough.
• someone who works hard.
• someone who stands up for his or her beliefs.
• someone who does something extraordinary.
• someone who doesn't take things for granted.
• someone who is humble.
• someone who finds good in everyone.
• someone who does good deeds daily.
• someone who tries their best.
• someone who thinks of others before themselves.
• someone who fights against injustice.
• someone who inspires others.
• someone who strives to achieve a goal.
• someone who puts him or herself behind others.
• someone who does selfless things.

In "Duke Case Heroes and Villains," I opined: "Unfortunately, there has been much more villainy than heroism in connection with the Duke case."

It was easy to identify villains: "The accuser will be perceived as a victimizer instead of a victim. The prosecutor, who posed as a hero, will be recognized as a villain, a shameless political opportunist, a zero. The president of Duke University will be exposed as a slave to political correctness instead of a man of courage. And it will be obvious that much of the media was too quick to believe the worst, too determined to be first, too inept to distinguish the genuine from the fake and too slow to correct its mistake."

Stuart Taylor, America's top legal commentator, had helpfully put the Duke case in perspective last May.  He did not refer to a pantheon of heroes, but to a "rogues gallery," writing that the Duke case rogues gallery does NOT include the indicted players, 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."

But not being a rogue does not make a person a hero. Finding a hero is hard and, by Cash Michaels' high standard, probably impossible. 

I reiterated what I have said since the story broke: "That 2006 Duke Men's Lacrosse Team party last March was shameful, to be sure...."  But I accorded the accolade hero to one of the players.  Not David Evans, the co-captain who publicly spoke so well (and I'd say heroically) after he was indicted, because he "could have saved the 2006 Duke University Men's Lacrosse Team's season and spared sophomores Collin Finnerty and Reade Seligmann suspension, them and finally himself indictment, and all of them and their families and friends the resultant notoriety, anxiety and/or exorbitant expense if he had refused to hire and host strippers last March."  In the land of the blind, the one-eyed man is king.  With the deafening silence of the lacrosse team members (surely on advice of counsel from the moment lawyers got involved in the case and perhaps as a result of general legal advice given long before the party), Mr. Evans' public performance was the best by default (and it WAS very impressive, if not quite the equivalent of Lincoln's Gettysburg Address in the circumstance).

The one I identified as a hero was team member Rob Wellington, whose  proud father wrote in a profound piece comparing his son and Duke University President Richard Brodhead.   

Professor Robert K. C. Johnson had written:

"After the two initial indictments — when the risk of being the third player targeted by Nifong hung over all other 44 players on the team — Wellington swore out an affidavit confirming that he was with Reade Seligmann throughout the period of the alleged crime. He did so before Seligmann produced, among other items, cellphone records and an ATM videotape confirming that Seligmann is demonstrably innocent.

"By risking Nifong's wrath to tell the truth, Rob Wellington is one of the few heroes of this affair."

Mine too.  That was a heroic act.  I don't know Rob Wellington, don't claim he is without sin and hope he left the party as soon as the strippers came.  But I enthusiastically applaud his heroic act--"risking Nifong's wrath to tell [what I believe is] the truth."

And I gave the entire team credit for what I thought it did rightly:

"[A] June 26, 2006 Newsweek article reported that ALL of the Duke men's lacrosse players behaved courageously (despite legal advice). The article began by reporting a choice that did the entire Duke lacrosse team proud (unlike the choice of "entertainment" for that infamous party last March): "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.)"

My note: I'm confident that the black player would have provided his DNA voluntarily too, if the DA had wanted it.  I give him credit for meeting a far more difficult challenge: refusing to say what some people (especially the DA) wanted to hear, despite threats, because he was there, knew that there was no rape and would not be bullied, regardless of the race or color of the bully.

BULLY FOR HIM!

I criticism him for staying, just like I criticize everyone who stayed, but I don't jump to the crazy conclusion that those who stayed either raped or covered up a rape at the party.

Cash Michaels has chided me (privately) for according even Rob Wellington hero status and the goalie does not make his cut either. Mr. Michaels requires more before he will classify someone as a hero.

Mr. Michaels shocked his detractors, especially the most superficial of them, by following the evidence and recognizing that the known evidence to him (and he knows plenty) does NOT support the pending criminal charges against the Duke Three.  

Mr. Michaels points out (rightly, I believe) that most of the 2006 Duke University men's lacrosse team members bear responsibility for the firing of Coach Pressler.  Coach Pressler had urged them to behave decently. 

That off-campus team party last March was not decent. Decency demands MORE than not kidnapping, or not gang raping, or raping (with or without a broom). 

The legalistic argument that the premises on which the party was held were not owned by Duke University when they were leased and Duke University could not unilaterally impose additional restrictions after it became the new landlord by buying the premises is good law, but it does not absolve anyone of the moral duty to behave decently and the legal duty to obey the law (from laws against underage drinking, excess noise and public urination to the prohibitions on kidnapping, rape and sexual offense).

Mr. Michaels has been excoriated by some for initially thinking the gang rape claim plausible, but Dan Abrams did too, and for according one of more sources too much credibility, but that happens in a world in which virtually everyone has an agenda.

In discussing heroism and the Duke case with me, Mr. Michaels made some powerful points that everyone should appreciate.

Mr. Michaels: 

"I do have high standards for heroism, because I know so many. That coach out in California who met with his team after they allegedly raped that 11 year-old girl, and told them to go speak to authorities about what happened. That coach is a hero because he taught his players that manhood is about owning up to your responsibilities. What they did was wrong, so very wrong, and thinking that she was older is clearly no excuse.

"That coach is a real hero because despite his better instincts, he did not shield his players from their ethical and moral responsibilities as men who now owe society contrition.

"I witnessed no such heroes at Duke University. Indeed Coach Pressler was stabbed in the back by the team that he tried so hard to mold the right way, with character, dignity and respect for others.

"Anyone who attended that party, knew what it was about, and was about to become, and stayed for the main performance, helped to push that knife deeper and deeper into Pressler's back."

The persecution of the Duke Three is an abomination for which the irresponsible people responsible need to be held to account.

But we should not let tunnel vision blind us to the whole reality.

PS The taxi driver who confirmed  Reade Seligmann's alibi and was prosecuted on an unrelated charge for his trouble was acquitted on it.  Maybe Mr. Michaels and I can agree on HIM as a hero.  God knows there's a desperate need for at least ONE!  That man stuck out his neck and the prosecution tried to discredit and punish him for it, but failed to do more than harass him.  That taxi driver at least did his "civic duty," as Mr. Michaels might put it, and acted heroically, in my book.

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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