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"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:  September 13, 2006
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Topic category:  Other/General

The Duke Three Should Prevail With the Truth, Not Silence

On September 10, these words were included in a long and thoughtful anonymous post at Friends of Duke University website: "Who would have guessed when this whole saga began that Cash Michaels would turn out to be the paragon of honesty and good journalism."

On September 10, these words were included in a long and thoughtful anonymous post at Friends of Duke University website: "Who would have guessed when this whole saga began that Cash Michaels would turn out to be the paragon of honesty and good journalism." (NOT my post.)

A lifelong New Yorker, I was not aware of Mr. Michaels, North Carolina journalist and television personality,before the Duke case. I have followed his work onthe caseand communicated with him about it. I very muchappreciate his outstanding work on the case. I would have been disappointed if he had NOT reported the "hush money" story, because it WAS newsworthy (and now the accuser's credibility is even disputed by her cousin). I have been delighted with the way Mr. Michaels has followed the evidence. I don't have a problem with him following any of it and questioning anyone. If the facts warrant prosecution against anyone for underage drinking, or facilitating underage drinking, or excess noise, I wouldsupport prosecution by a fair and objective prosecutor. I take exception to a politically motivated prosecution that perverts the criminal justice system and exacerbates racial tension. I am not an apologist for Duke lacrosse players.

My last two articles have been defenses of Mr. Michaels against a recent, reprehensibleJohnsville News hit piece. The Johnsville News has treated me favorably, but that would not justify my overlooking its outrageous attack on Mr. Michaels. [There was a tasteless prior criticism in June, but the September one is astonishing.]

The Johnsville News responded to my defenses with an olive branch of sorts:

"The Enemy of My Enemy is My Friend

"God bless Michael Gaynor for (1) writing a story where he puts The Johnsville News in the headline, (2) cranking out 2000 word articles every day for five months informing people of this injustice, (3) confirming The Johnsville News report that Cash Michaels is at best a very sloppy journalist." That's NOTthe apology to Mr. Michaels that is called for and for which I called.

I didNOT confirm that Mr. Michaels is "at best a very sloppy journalist" and reporting that I "crank[ed] put 2000 word articles every day for five months informing people of this injustice" is an example of sloppy journalism. I have written extensively on the case, but hardly "every day for five months."

At least The Johnsville News is right about the Duke prosecution being an "injustice." But, that does not permit The Johnsville News to be unjust to Mr. Michaels or anyone else.

Today ananonymous poster at the Friends of Duke University websitewas misidentified as me. That's unfortunate. I prefer to put my name to what I write. I regret that the misattributor jumped to an erroneous conclusion and then misled others by misattributing.

Ananonymous poster insisted that I have been criticizing "Coach K" (Duke's basketball coach). I don't blameCoach Kfor the American team having to qualify for the next Olympics, and I have notposted a word about him.

Coach K recently held a rally, and did and said what he thought appropriate in the circumstances.

DukeMOM recognized that: "These athletic students shouldn't act like mangey dogs with their tails between their legs-- they need to take their stand as top dog! I feel that this was the point of the rally. I am sure that the 3 innocent boys are on all their minds! Coach K has to be careful not to polarize. And if he came out and said that the 3 boys were innocent and the whole thing a farce, how would that make Duke's President look? Silly? Stupid? Weak? And how would that make his boss Alleva look? Hypocritical? Would that be in Coach K's interest to do that? Would it be in the interest of the lacrosse three to do that? There are things everyone knows who follows this case. It is best to be indirect in public comments that the press is publishing. Coach K is no fool. This rally only helps the cause of the three wrongly accused guys! I think Coach K did the right thing and much more the smart thing! ( It also marginalized Brodhead without directly offending him.)"

I appreciate Coach K's position and agree with DukeMom on this.

Anonymous too agrees about Coach K, but wrongly believes that I am a Coach K critic:

"No way, coach K is an honorable man. He would not hold a rally to scapegoat anyone; he just isn't that type of a man. Coach K and others are trying positively to do what they can to bring some normalcy to the lives of these athletes. What is wrong with that; why do we have to attack them?

"If it makes MG happy to think he is the only moral being left on earth, let him think that. I do not buy it. I have all the faith and trust in Coach K and the teammates of these students. I am sure the teammates of Dave, Collin, and Reade are thinking of them every moment of the day. I know they do. Why is this poster (whoever MG is) so desperate to turn us against each other? Does he gain from it? If this guy thinks he is a friend of the Duke 3, he should get his head examined.

"He said it himself 'with friends like Coach K who needs enemies?' No, that is no how it goes; this is more like it: 'with friends like him (6:50 and 6:55 am poster) who needs Nifong?' I suggest we collectively ignore this guy. His rhetoric is not difficult to recognise. Let us just ignore him. He is not adding any value to our discussions anyway."

All this misdirected vituperation because I believe that each of the Duke Three should have done what only David Evans did: dispel the myth that he is monster who kidnaps and rapes by publicly proclaiming his innocence and the charges against the Duke Three "a fantastic lie."

The group think approach yearned for by those controlling the Friends of Duke University website is succinctly stated in this anonymous September 7 post: "We all come to this site because of our common belief in the innocence of Reade, Dave and Collin. We must understand that while we may have differing opinions about procedures, our objective is to give support and encouragement to the families and players of Duke Lacrosse. Let us remember that they read this blog and we should measure our words carefully so that they feel supported, not criticized."

Giving support and encouragement to the players and their families is a worthy purpose. But it is not what should be the primary goal, much less the only goal:making known the whole truth about that lacrosse team party last March and the outrageous investigation and still pending prosecution that followed.

I am the MG referred to by the anonymous poster.

I had written about the Duke case three times before a family member emailed me on May 24 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 family member was interested in pointing me in a specific direction: "Perhaps you might like to investigate the possibility that MR. Nifong is in deep financial trouble. If he does not win the election, he has no right to a pension which he desperately needs. There is real grist for the mill in that subject. Answers the question: 'Why would a DA not look for the truth?'"

I am an independent commentator. I took an interest in the case immediately and wrote about it a couple of days after the first two indictments, urging that Crystal Gail Mangum be referred to an accuser instead of a victim. I am a lawyer, but not part of the defense team, so I remain free to praise what I believe praiseworthy and criticize what I believe deserves criticism.

I have long believed that criminal lawyers do not serve the innocent well by defending them as though they are guilty. I believe that there is a safe middle ground between maintaining complete silence and conducting a press conference and submitting to unbridled interrogation. And I believe that David Evans wisely took that safe middle ground by publicly stating that the Duke Three are innocent of the heinous criminal charges against them and that the gang rape claim is a "fantastic lie." David Evans did not answer questions, but he stood tall and dispelled the image of him as a monster who kidnapped and raped. I believe that Reade Seligmann and Collin Finnerty should have been prepared to do the same over the weeks of waiting to see which innocent young men would win the victim lottery, and I blame lawyers for not preparing them. I think the suggestion that only David Evans could have spoken out as he did without hurting his case is nonsense.

In addition, I believe that people who know the Duke Three should have come forward to attest to their general good character (at least, confidence that they were not kidnappers and gang rapists). In particular, I wanted soap opera star Susan Lucci, Collin Finnerty's longtime Garden City neighbor (perhaps for his whole life), to have spoken up for him, and I said so, both privately and publicly.

When I posted a piece called "Paging Susan Lucci," the FODU moderator pronounced it "excellent" and quickly listed it, only to be swiftly convinced to de-list it by someone with both clout and the instinct of a censor.

So Friends of Duke University and I differ on "procedure." I have not been posting comments there recently, but some think otherwise and my views have been misrepresented at the site, both deliberately and unintentionally, it seems to me.

DukeParent09 attacked me, while urging teammates and friends of the Duke Three to speak up for them. (Ironically, even thoughI wanted them to speak earlier, now that an outrageous and unconstitutional gag order is in place, I would urge them to protest the gag order without risking disqualification as a witness, for anyone who might bea witness, The defense jointly moved to modify the gag order a few days after it was issued, but they did not publicly challenge it immediately and the scope of the order was not appreciated by the media.)

This anonymous posterwanted teammates and friends of the Duke Three to speak up and, as to her criticism of me, DukeParent09 to tone down:

"Nobody here is talking about Collin and Reade talking

"We are asking the other Dukies including their friends and teammates to have some courage and come forward.

"And discuss the hoax before it is too late, with the court case underway. Defy the unenforceable gag order.

"And to Duke09 and the other censors, you have been addressing a phantom

"I don't MG think is even in the house. And even if he was, he doesn't strike me as a 'stupid' person as you keep insisting (bull-headed, prolly but stooopid, nah)"

DukeParent09 has a practical side and appreciates the need not to unnecessarily antagonize at least some people: "Oh, and I suppose that all Duke athletes and administrators should loudly and persistently attack all people in Durham who ever believed CGM, no matter what resentment that could cause in the jury pool for the trial. Hey, the jurors might use jury nullification to put these boys away for being on the same team with someone who used the word nigger or made an off color joke about a cotton shirt or sent a foul parody out by email."

On that, DukeParent09 and I agree, and I hope she will join me inprotesting the recent hit pieceon Cash Michaels at The Johnsville News.

Mr. Michaels initially found the gang rape claim credible. So did MSNBC's Dan Abrams.

Mr. Michaels was not provided with access to Mr. Nifong's document production when Mr. Abrams was. It took him longer to reach the conclusion that Mr. Nifong did not have evidence to support his prosecution, but he reached it. Blame the defense for not giving Mr. Michaels access when Mr. Abrams got access, not Mr. Michaels for suspecting that there was some solid evidence ofguilt in those hundreds of pages.

Hurray for Messrs. Abrams and Michaels for following the evidence and overcoming their initial predisposition.

Mr. Nifong does not think of the lacrosse players as heroes because they became victims, and neither do I. He is offended by some things that apparently happened at the party, and rightfully so. He realizes the obvious--that those things do not justify framing the Duke Three for kidnapping, rape and sexual assault.

But Mr. Michaels will not "whitewash" those players who behaved badly, and neither will I.

We receive criticism for not falling in line.

So be it!

BUT, Professor Robert K. C. Johnson, whose fully deserved popularity at the Friends ofDuke University website seems to still be unquestioned, was prompted by The Johnsville News hit piece on Mr. Michaelsto post a piece titled "Michaels Asks Questions" including this well deserved tribute to Mr. Michaels:

"Outside of the mainstream media, ...one North Carolina journalist has stood out. I've read Cash Michaels' column every week since I started following the story, in part because Michaels, who writes for the Wilmington Journal and whose work is part of the BlackPressUSA Network, has access to sources that few, if any, figures in the mainstream media possess.

"From the start, Michaels like most of his readers has openly sympathized with the accuser. But he's also been open to adjusting his perspective as new evidence has come in. And unlike people such as the Herald-Sun's Bob Ashley, he has kept asking questions about the case something I thought was the job of all journalists.

"Most important, in my opinion, Michaels has homed in on the significance of Nifong's habitual disregard for standard procedures. Several weeks ago, he started asking some hard questions about whether the D.A. exploited African-American voters in handling the case; and his most recent column raises serious (and, as yet, unanswered) concerns about both Nifong's procedurally irregular behavior and the seemingly dubious personal character of the case's lead investigator, Sgt. Mark Gottlieb. The piece is a must-read.

"Michaels' conclusions strike me as critical for the African-American community. We all know the sad statistics blacks are far more likely than any other group in this country to be victimized by police or prosecutorial misconduct. So allowing Nifong to get away with his multiple violations of procedure in this case will set a dangerous precedent from which African-Americans almost certainly will suffer in the future.

"I'm, obviously, not from Durham; and so pay special attention to message-board posts when people from the area talk about how their friends and neighbors are viewing the case. There's an interesting pattern: few, if any, seem to have been influenced by the widely condemned Times article. But many, especially in the African-American community, cite Michaels' work. It looks as if they understand that on the lacrosse case, readers are more likely to see quality journalism in the Wilmington Journal than in the New York Times."

Many of the people of Durham, including those who will vote in the upcoming District Attorney election, will be more likely to appreciate that the Duke Three prosecution is a travesty of justice because Mr. Michaels follows the evidence and reports where it leads him, whether it pleases the prosecution or the defense.

That's what Mr. Michaels is supposed to do!

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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