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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:  November 19, 2006
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Topic category:  Other/General

Duke Case: Professor Crowley Just Doesn't "Get It"

William J. Doherty is a retired New Jersey police officer who became familiar with North Carolina as a Marine. Unsurprisingly, he is disgusted with the way the Duke case has been mishandled by the Durham Police Department and the Durham County District Attorney's office.

Recently Mr. Doherty also took exception to Duke Geology Professor Thomas Crowley's letter to The Herald-Sun warning against dropping the case.

Mr. Doherty emailed Professor Crowley as follows:

"Why did you have to mention that you were a Duke Universityprofessor? Couldn't you sent a letter to the paper and just use[d] your name?

"When I was in the Marines back in 1969, I could protest the war, but could not embarrass the Marines by going in uniform.

"Your letter showedhow ignorant you are[about] the law and the fact that you told Prof. [Robert K.C.] Johnson, that you did not know about the TOX report, is another error in your letter. You not only embarrassed yourself, but the University you work for."

Professor Crowley replied:

"Dear Mr. Doherty,

"thank you for your comment. on all previous opinion letters that I have written, and which were not directly related to my area of specialty, I have never identified myself as a duke professor - I don't write 'private citizen' instead but just sign my home address.

"on this particular letter I had to break with tradition because, rightly or wrongly, I felt it would be disingenuous NOT to identify my affiliation. perhaps I was wrong in that but I think it could be debated both ways.

"I do not believe someone has to be a total expert in a particular matter before they can express their view in a newspaper letter. it turns out that yes indeed I was wrong on the toxicology report. but in fact I do not think it affected my main conclusion about the accuser passing out on the porch of the lax house. sure it could have come from the other drug she was taking, and yes she has fainted before, but is it just coincidence that that was the time she passed out? an alternative and perhaps even more likely explanation is that it may have been related to something that just happened to the woman.

"I am sorry I cannot go on at greater length on this - I cannot reply to all letters and usually reserve some response where I think a shred of reason exists between the parties - so far that seems to be no more than ~20% of the email I receive.

"the basic point I was making, and rightly or wrongly still make, is that I continue to harbor doubt about throwing out the case. Maybe I am wrong but I have a right to express that doubt -- especially since for the last few months the public seemingly has heard little about opposing views on the case. and I certainly have not heard of anyone being bludgeoned by emails and letters from lawyer for mis-stating some fact on the case when the writer was in favor of throwing out the case. this is what has bothered me about the case - it seems to be entirely one-sided and I am sorry to say I am not convinced that is just because the evidence is all one-sided. there is just too high a correlation between Duke critics of my letter and invective to make me think this is just about logic and justice.

"finally, i want to emphasize again that in no way do I think the lax team guilty-- I am just not so convinced of their innocence that I think the case should be thrown out at this time."

Professor Crowley, we can agree on this: you are NOT a "total expert" on the Duke case or the law, but you have a right to write to a newspaper.

Your position that the Duke case should continue because "there is just toohigh a correlation between Duke critics of [your] letter and invective to make[you] think this is just about logic and justice" is mind-boggling to me.

If those people outragedbyyourmissive had calmly pointed outyour basic mistakes, you'd have seen the light and supported dismissal pf the Duke case?

Whether or not the Duke case should be dismissed should not depend upon Professor Crowley's sensitivity to "invective."

Let's start with the basics of criminal prosecution: no one is supposed to be convicted of a crime unless that person is proven to be guilty of the crime by the submission of competent evidence proving guilt beyond a reasonable doubt, and no one is supposed to be indicted unless there is probable cause to believe that person is guilty of the crime for which he or she is indicted.

The key is...EVIDENCE!

Not speculation.

Professor Crowley is...a speculator. He speculates that theremay be evidence of guilt.

If Professor Crowley was one of the Duke Three, would he want the case to continue based on speculation?

I doubt it.

Professor Crowley conceded that the toxicology report does not support the date rape drug speculation. Still, hethinks the Duke case should proceed: "in fact I do not think it [Professor Crowley's unawareness of the toxicology report] affected my main conclusion about the accuser passing out on the porch of the lax house. sure it could have come from the other drug she was taking, and yes she has fainted before, but is it just coincidence that that was the time she passed out? an alternative and perhaps even more likely explanation is that it may have been related to something that just happened to the woman."

The Duke Three are not supposed to be convicted based on "an alternative and perhaps even more likely explanation...that it [the accuser passing out on the porch] may have been related to something that just happened to the woman."

The Duke Three have been charged with raping, kidnapping and sexual assaultingthe accuser. The prosecution needs to prove rape, kidnapping and sexual assault of the accuser by each of them, not that they were at a party at which "something...happened to the woman."

Apparently NOTHING happened to the accuser. But surely being at a party at which "something...happened to the woman" is not an indictable offense.

In the absence of evidence that the Duke Three raped, kidnapped and sexually assaulted the accuser (whose credibility Professor Crowley simply seems to assume, notwithstanding a mountain of evidence impugning it), like DNA, or a confirming witness, or an admission, or the Duke Three failing their polygraph tests instead of passing, or the accused passing a polygraph test), the indictments of the Duke Three were travesties of justice.

Yes, I agree with Professor Crowley that "someone [does not have] to be a total expert in a particular matter before they can express their view in a newspaper letter," but surely a Duke professor so identifying himself should have attained greater familiarity with the case than Professor Crowley did before opining on it.

Professor Crowley's attitude is astonishing: "what has bothered me about the case - it seems to be entirely one-sided and I am sorry to say I am not convinced that is just because the evidence is all one-sided."

There is no evidence of guilt, Professor. We have that from lawyers and journalists who have had access to the evidence. Do you have reason to believe there IS evidence of guilt? If so, please share. Otherwise, be fair.

How many women (besides the accuser, of course) have come forward to say that any one of the Duke Three ever disrespected them, much less sexually assaulted them?

Answer: NONE.

Do you really think the Duke Three would have been indicted if they were black, Professor?

Don't you "get" that Mr. Nifong pretended he had a case against the Duke Three in order to be elected ?

Do you really think that Duke Law Professor James Coleman is mistaken about prosecutorial abuse in the Duke case?

Do you really think the identification procedure was appropriate?

Do you really think that Duke President Brodhead and the Gang of 88 don't owe the Duke Three an apology?

Do you really think that theReade Seligmann and Collin Finnerty should be barred from campus because they have been indicted in the Duke case, regardless of everything that is now known?

Do you really think that it's "perhaps even more likely" that the accuser passed out on the porch because "something[had] just happened to" her?If so, why do you think so? What facts lead you to jump to that conclusion? And do you also think Dukelacrosse players make her pass out at The Platinum too? If so, how did they do that?

Professor Crowley, you need to read up on the law, particularly due process, equal protection, the presumption of innocence, probable cause, reasonable doubt, evidence and speculation.

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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