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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:  November 22, 2006
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Topic category:  Other/General

Duke Case: Sowell, Yes; NC NAACP, No

Incisive commentator Thomas Sowell, who happens to be black, "gets" the Duke case:

"While District Attorney Nifong is at the heart of this tawdry perversion of the law, many others have joined in the rape of justice. A local newspaper responded to the recent '60 Minutes' expose of how phony the rape case is by editorializing that the Duke lacrosse players are not model citizens. Their neighbors have complained about their playing loud music, and one of them got into a brawl somewhere. 

"Surely no one is so feeble-minded as to believe playing loud music or even getting into a brawl proves you are a rapist. But it shows how desperate some people are to take sides instead of wanting the truth to come out and see justice done, whatever that might be. 

"It is especially painful to see the local NAACP joining the stampede to convict the Duke players, not only without evidence but in defiance of a growing body of evidence that points in the opposite direction. How many black men have been railroaded to jail or even to the gallows by the same lynch mob mentality, whether carried out by a jury or by the Ku Klux Klan? And is all that the NAACP has learned from this tragic history is that it just depends on whose ox is gored?"

With Election Day 2006 passed and Durham County, North Carolina District Attorney Michael B. Nifong having won election with a plurality of the votes cast because the anti-Nifong vote split, North Carolina journalist and television commentator Cash Michaels finally admitted publicly that he believes the Duke Three are not guilty of the "major crimes" of which they have been accused: rape, kidnapping and sexual assault, each in the first degree, each a felony.  It is something that thoughtful voters might have taken into account if they had known.

The Johnsville News, which, in my view, repeatedly went much too far in criticizing Mr. Michaels' coverage of the Duke case, highlighted this development in its own coverage of the case, as follows:

"Michael Gaynor:

"'Kramer' meltdown moves Cash Michaels "<http://www.renewamerica.us/columns/gaynor/061121>  — Mr. [Cash] Michaels is not only well known in Durham County, North Carolina, but the person covering the Duke case. As such, much is expected of him. Provoking racists, white or black, is something he should be far above....Ironically, Mr. Richards' racist rant prompted Mr. Michaels to publicly post his opinion on the merits of the Duke case. Mr. Michaels referred to the members of the 2006 Duke Men's Lacrosse Team as 'a bunch of drunken, perverted, dishonest athletes who went behind their coaches back to commit a minor crime, only to be accused of a major crime, just because they thought they were men enough to hire lost women to debase themselves for their pleasure.' Thank you, Mr. Michaels."

What would Dr. Martin Luther King think of the Duke case?  Would he be pleased that whites too can be "railroaded" on bogus charges?  Is THAT progress?

I doubt it.

"I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character."

So declared Dr. King.  (I think he meant for everyone's children to be so fortunate.)

On April 4, 2006, ironically, the 28th anniversary of Dr. King's martyrdom, however, the North Carolina NAACP,  by Rev. Dr. William J. Barber II, its State Conference President, addressed the Duke case, as follows:

"The current events and allegations surrounding the Duke Lacrosse Team and a twenty-seven year old African American student-mother taps into deep emotional and historical themes of our flawed society.  The allegations contain the lethal and polarizing elements of sexual violence, racial degradation, alcohol intoxication, and elitism.  How we maintain community and do justice requires tenacity to seek the truth and willingness to face the truth, whatever it is."

The truth must be faced, and justice must be done.  The truth is that the "twenty-seven year old African American student-mother" is stripper with a sad criminal, medical, employment and sexual history who falsely accused the Duke Three of gang rape.  THAT is an ugly truth that needs to be faced, not denied.   THAT was the problem, not sexual violence or elitism.  The Duke Three did not make racist comments, according to the second stripper, who initiated such "racial degradation" as there was at the party by making a taunt of a sexual nature and tying it to the color of the skin of the person taunted.  (To be sure, that person's reaction was highly inappropriate, but neither person's remarks were crimes.)   

"We in the NAACP historically have fought for the protection of all people’s civil rights.  We have fought and stood with black men when they were accused of raping white women and the majority community wanted to engage in passing swift judgment, bypassing the judicial system with mob tactics.  We have also been there and stood with black women and white women who were brutalized and victimized sexually because of racial and macho hatred.  These black and white sisters found themselves up against a system that would rather cover up the truth than face it.  We have been there when black men have been found innocent after a rush to judgment and, sometimes, even after they had been lynched.  We have been there when women have been victimized and the actions of the perpetrators were dismissed by suggestions that the victim herself deserved what happened to her or by statements like, boys will be boys."

Now they've been there for a gang rape hoax in which a black woman is the hoaxer, a white prosecutor is the enabler and three young white men from up North are the victims.  The sooner they acknowledge the truth, the better.

"We bring to this crisis the perspective of these historical experiences and wisdom.  How we proceed will have great impact upon our ability to remain a community and meet the demands of justice."  

"How we proceed" IS critical.  Refusing to recognize a hoax will have a great impact.  A great NEGATIVE impact. That perspective and wisdom do not seem to have served the NC NAACP well in the Duke case.

"The following is a list of steps, which ought to be taken by the community in order to insure justice, integrity, and healing:

"First, we must clearly denounce any code of silence, which seeks to inhibit ascertaining the facts."

In the Duke case, the problem is NOT that a code of silence has covered up a gang rape.  It is a false charge and the efforts to make it seem true have made things much worse. "Second, we must have deep compassion and concern for the victim and challenge any attempts to demean or destroy her rather than to seek and ascertain the truth."

Whoops!  The NC NAACP prejudged the case!  It turned out that Crystal Gail Mangum was a victimizer, not a victim, and Duke's white male lacrosse players were her victims.  The real victims deserve that "deep compassion ands concern" and protection against "attempts to demean or destroy...rather than to seek and ascertain the truth."  Telling the truth about Ms. Mangum is rightly discrediting her, not demeaning or destroying her.

"Third, we must ensure that the D.A.’s investigation be completed thoroughly and promptly and that serious consequences be meted out if all the allegations are proven to be true.  All of the allegations include sexual violence/gang rape, racial slandering/hate crimes, underage alcohol use, and any prior history of racial bigotry and intimidation must be fully investigated.  We do not want a rush to judgment.  But neither do we want a delay of justice.  While the D.A. completes his thorough and prompt investigation, we want Duke to zealously conduct and complete its own internal investigation."

It turns out that what needs to be thoroughly and promptly investigated are the ways that the Durham Police Department, the Durham County District Attorney's Office and Duke University responded to Ms. Mangum's bogus gang rape claim. Rush to judgment is what the NC NAACP did in declaring Ms. Mangum a victim.

"The idea that Duke should wait until the D.A.’s investigation is completed is wrong-headed.  No one should try to hamstring the new President, who has tried his best to handle a monumentally difficult situation, without bias.  But he should not be surprised by facts he reads in the paper for the first time.  He has fine investigators on his staff.  The reports of past complaints against the Lacrosse Team are readily available to him from the files.  He has access to all of this information, whereas the Buckley amendment and other privacy protection rights hamstring outside investigators in gathering this important background.  A complete profile of the team should be developed for President Brodhead.  He should know who was at the party.  Who was violating Duke’s Code that night?  How many times had they violated the law or Duke’s Codes before?  How was the contract formed for the two dancers to come to the back door?  These and many other facts should be readily available to the President.  His direct involvement will also make him a wiser judge, when he must decide on fair punishment for each student, based on their conduct that night, his past conduct, etc."

Again, the NAACP prejudged: President Brodhead "must decide on fair punishment for each student, based on their conduct that night, his past conduct, etc."   How embarrassing it all must be for the NC NAACP!  Rumors that Duke's male lacrosse players are really bad guys turned out to be really wrong.

"Fourth, we must monitor the legal process to insure justice is carried out in this investigation without special privilege or treatment to anyone is shown, and the procedures for charges, arrest, and DNA---all are followed in a consistent pattern.  Our Legal Redress chair has requested a meeting with the D.A. to discuss these matters. Our position as an organization whose mission is civil rights and community justice is that the investigation of the allegations are fair, meticulous, comprehensive, aggressive, and thorough."

Amazing!  The prosecutor would not meet with a defense attorney who wanted to provide evidence of innocence to avert indictment, but the prosecutor should meet with the NC NAACP Legal Redress chair "to insure justice...."

The prosecutor rigged the identification procedure to spare Ms. Mangum the embarrassment of misidentifying someone who was not a white member of the 2006 Duke  University Men's Lacrosse Team.

"Fifth, those who are calling for justice and fairness in the investigation must not be wrongfully described as a lynch mob no matter how zealous[ly] one seeks to defend their client."

What should we say about those who chanted "Dead man walking!" at Reade Seligmann?  

"Sixth, those who want to ensure justice must insist there be no short cuts to justice and we must demand that the alleged perpetrators have rights to be protected.  We must also be prayerful for whoever committed these acts because whoever did is suffering from a great sickness of the spirit and hatred for humanity."

There goes the NC NAACP again!  No one "committed these acts...." The gang rape claim is bogus. The Duke Three have a right to have their indictments dismissed under the United States Constitution and North Carolina law, since their constitutional rights to due process and equal protection were flagrantly violated and it cannot be fairly concluded that they were not irreparably injured as a result.

"Seventh, we must face this investigation when all of the facts are in."

It's been obvious for some time that the Duke case is a hoax.  We must move on to investigate the false accuser, Ms. Mangum, and the prosecutorial misconduct of Durham County, North Carolina  District Attorney Michael B. Nifong, who played the race card to keep his job at the expense of the Duke Three.

"Eighth, we must face the truth and the justice that the truth demands."

Absolutely!  With minds and eyes open instead of shut. 

"Ninth, we must in this season of Lent, consider in the wake of all that has and will occur, how we repent, repair, restore, and move forward.  We must not engage in retaliatory violence. Our faith must insist that hope can still rise out of hurt, what is meant for evil can yet be turned to good, and out of tragedy can still come triumph."

Out of tragedy CAN come triumph.  But the truth must prevail and the NC NAACP must accept it.  There was no violence at the lacrosse team party, so there could not be violence that was "retaliatory."

"And tenth, we must recognize that in a moment like this moment we need the guidance of God and a moral compass, which keeps us focused, that only the truth can set us free."

ON THAT, the NC NAACP is right.  But it must walk the walk as well as talk the talk. Bogus cases should be dismissed, not tried.

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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