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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 28, 2006
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Topic category:  Other/General

Duke Case: Sometimes It IS Simple

The Ninth Commandment is not complex: "Thou shalt not bear false witness against thy neighbour."

It is a commandment, not a suggestion.

It obviously covers false gang rape claims.

Yet the President of Duke University (Richard Brodhead) and the editor of Duke's student newspaper (The Chronicle) who wrote the October 27 editorial on the Duke case titled "Bloggers Get Point, Miss Complexity" each unhelpfully tried to complicate the Duke case.

The Duke Three are charged with three first-degree felonies--kidnapping, rape and sexual assault--based on the word (and that's about it) NOT of God, but of an ex-convict stripper named Crystal Gail Mangum.

President Brodhead said something sensible when he recently addressed the North Carolina NAACP: "it seems to me that everyone who is a party to this issue, in this community or elsewhere, has got to understand that our collective community faith requires us to stand together for truth and justice, even in the face of difficult situations, and emotions."

ABSOLUTELY!  It's that simple.

But President Brodhead cravenly complicated the matter, by stating: “I do understand that …what was alleged to have happened has a special emotional charge to it because of the idea of white men commandeering Black women for their pleasure has a painful history.  It has a history that one would not ignore, and that history was aggravated.”

In the Duke case, all that is at issue is whether there is competent evidence that proves beyond a reasonable doubt that any of the Duke Three is guilty of any of the felonies on which each of them has been indicted.

In the absence of such evidence, each of the Duke Three is entitled to have the charges against him dismissed or to be acquitted of those charges.

It became obvious awhile ago that if all of the available evidence had been presented to a grand jury, no fair-minded grand jury would have found probably cause to indict any of the Duke Three.

It is as simple as that.

North Carolina journalist and television commentator Cash Michaels looked back over his coverage of the Duke case and commented:

"[A]s I look back over my stories from the beginning, the common theme has always been, 'What evidence does the DA have,' and 'Can he prove this case?'

"Since then I've gotten answers to both — 'Nothing' and 'No.'"

Mr. Michaels got the right answer to each question.

The Duke case represents the perversion of justice, not the pursuit of justice.  It is a persecution, not a prosecution.  It is politics at its worst. It is a race-based prosecution: accuser Mangum, who is black, claimed she had been raped when she was about to be incarcerated for her own protection and that her attackers were white.  She told conflicting stories and repeatedly failed to identify any individual.  Then Durham County, North Carolina District Attorney Michael B. Nifong devised an identification procedure that violated local, state and federal guidelines and mocked the constitutional protections known as due process of law and equal protection of law.

The Duke Three lost the sacrificial lamb lottery conducted by Mr. Nifong, with Ms. Mangum picking the unlucky.

But:

(1) None of the Duke Three ever owned a slave, black or white.

(2) None of the Duke Three ever imposed segregation on anyone.

(3) Each of the Duke Three was born long after the federal civil rights laws were enacted and therefore could not have impeded their enactment if they had wanted to do so.

Scapegoating any of the Duke Three to make some people feel better is sick, not sensible.

Colin Hall, a student senator at North Carolina Central University, opined early that  Duke students should be prosecuted "whether it happened or not," as "justice for things that happened in the past." 

But the Ninth Commandment and the United States Constitution surely trump that kind of hate thought.

The  mainstream media, led by The New York Times, got it horribly wrong in rushing to judgment after Ms. Mangum claimed that she had been gang raped at a party held by the 2005-2006 Duke University Men's Lacrosse Team.

All but one of the team members are white (Ms. Mangum gave the Black member a pass, insisting that only whites attacked her).

The story was about as likely to be true as lightning striking the same place three times in ten minutes, but the Left wanted it to be true so much that they treated it as such.  Example: the stripper was called the victim and not identified by name, thereby delaying the day of reckoning when the facts that make her not credible were ascertained by investigation..

Editorial: "When the spring media storm descended upon Duke following allegations that members of the 2005-2006 men's lacrosse team raped an exotic dancer, Duke's reputation received a major blow."

Yes, but not nearly as serious as the self-inflicted one, that is, the one the Duke Administration inflicted on Duke University by treating the gang rape claim as bona fide instead of bogus, or maintaining neutrality by NOT suspending.  Suspending Reade Seligmann and Collin Finnerty and ordering them to stay off campus sent a message that Duke University presumed them to be guilty, no matter what Duke said about not prejudging.  Actions often do speak louder than words.

Editorial: "And then the bloggers took off, many of whom now lambaste Durham District Attorney Mike Nifong and the mainstream media's handling of the case. They're not too fond of the Duke administration either."

Someone had to come to the rescue!  The bloggers did!  The mainstream media was part of the problem instead of part of the solution.  They were using the Duke case to promote its own political agenda. The big problem was that the black woman was the victimizer instead of the victim and the Duke Three were the victims of her and a shameless political opportunist named Michael B. Nifong, who joyously used the gang rape claim to save his job by pandering to the black voters in Durham County, North Carolina.  Mr. Nifong, the mainstream media and the Duke administration deserved lambasting.

Editorial: "Although bloggers have been able to push news coverage by focusing on a number of nuances in the scandal, they often miss-sometimes in a very dangerous way-the crucial complexities of the sentiments on campus."

The bloggers made the big picture visible to those willing to see.  They focused on the basics, not only nuances.  They realized that although having strippers at the party was a big mistake, the great scandals were (1) a bogus gang rape claim, (2) a district attorney who used the opportunity to ignore his duty to be a fair and impartial minister of justice and instead to play the race card, and (3) Duke University treated the bogus gang rape claim as a good reason to make the Duke students charged look guilty by suspending them.

Editorial: "When DNA results came back April 11, The Chronicle ran a staff editorial that called for national media to make the lacrosse story look less like a 'made-to-be-Lifetime-movie special.' The editorial asked journalists to maintain ethics and reclaim credibility by continuing to focus on developments in the lacrosse case."

It's true that the national media lost credibility, but "maintain ethics"? The national media had abandoned ethics in rushing to judgment.  The presumption of innocence was replaced with a presumption of guilt. The national media's "party line" was to sympathize with the accuser (calling her a victim being one example) and to skewer the lacrosse players as villains covering up a gang rape in which some of them participated. The truth was otherwise, however.

Editorial: "During what has been a 'lull' in media coverage, bloggers have retained their focus on the lacrosse scandal and have continued to shape public opinion."

The national media is reluctant to admit its major mistakes.  It prefers to go into "lull" mode.

Editorial: " When the lacrosse scandal first broke, bloggers had the luxury of watching the pieces come together from a distance as major media scrambled. By April, bloggers came into the game in a major way, and have made a number of very good points since. They have even scooped major media on several occasions."

Bloggers have a luxury that the mainstream media lack?  The bloggers came into "the game in a major way" and "made a number of very good points" because the mainstream media got it wrong and there were "a number of very good points" to be made.  Scooping major media happens when there is news that does not fit the mainstream media's agenda.  The New York Times' motto--"All the news that's fit to print"--should be "All the news that fits our agenda."

Editorial: "KC Johnson and John in Carolina, among other bloggers, have noted many times that the fault with the mainstream media's coverage of the case has been its tendency to make the lacrosse scandal a 'black-white,' 'good-bad' issue.

More precisely, the mainstream media grossly exaggerated the sins of the lacrosse players and minimized those of their accuser. The fact that the accuser is black and the accused are white made it a black-white issue. The mainstream media tried to make it good black versus bad whites.  That fit their political agenda, but not the facts.

Editorial: "Correct, but now it seems the tides have turned and the bloggers themselves have gone down a similar road. They have villainized President Brodhead, major media and Nifong while making the lacrosse players themselves into absolute angels. Down here on the ground-from the campus perspective-things aren't quite that simple."

This independent commentator never portrayed the lacrosse players as angels, but he recognized President Brodhead, major media and District Attorney Nifong as villains.  What would you call a District Attorney who turns down polygraph test offers, ignores evidence of innocence and abuses his prosecutorial authority to get three young white men to persecute? Or major media who assume that there was a crime and call the accuser a victim? Or a university president who has behaved the way Duke University President Richard Brodhead has behaved?

Editorial: "Most troubling, though, is the fact that sometimes such assertions are made from afar with little true reporting. An informed-complex-understanding of the situation requires in-depth conversations with administrators, lacrosse players, lacrosse parents, defense lawyers, hundreds of students, alumni and many more."

Not everything is complex.  Some things are simple. You don't have to visit North Carolina to become familiar with North Carolina law, much less the United States Constitution.  Or to know what Mr. Nifong has done and said, and what has been reported in newspapers in North Carolina and beyond.

Editorial: "Without context, speculation can be a very dangerous matter. Indeed, such speculation can lead one to jump on a simple faux pas or take a professor's quote out of context. Doing so breaks the very ethical standards of journalism bloggers castigate major media for overlooking. And if you're in the game, you need to play by the rules. The best bloggers covering the case have dug deep and haven't been afraid to point out their own mistakes."

Now that it's obvious to fair-minded people that the lacrosse players have been demonized, the editor acknowledged that speculation without context can be dangerous. 

Message to editor: Speculation WITH context can be dangerous. And your bias is obvious: bloggers "break" "ethical standards of journalism" while major media merely "overlooks" them.

Editorial: "This said, there are no editors in the blogosphere and few checks to make bloggers consistently accountable for what they write. Indeed, some continue to remain anonymous. Visitors to such blogs should remember that bloggers are bloggers-many have interesting views but they are not reporters, they are not experts and they are certainly not objective."

Many bloggers ARE experts.  Examples: Robert K.C. Johnson is a professor of history at Brooklyn College and the CUNY Graduate Center, where he teach 20th century U.S. constitutional, political, and diplomatic history. William L. Anderson, Ph.D. teaches economics at Frostburg State University in Maryland, and is an adjunct representing the collective effort of several writers, researchers, editors, and/or illustrators.  Mike McCusker (CrystalMess.com) and I are experienced attorneys.

Editorial: "Six months after DNA results came back negative, questions about major media, the administration and the controversial District Attorney Mike Nifong have certainly popped up. Most Duke students now show their unabashed support for the team."

The questions were there before, they became more widely appreciated, thanks largely to the defense team and the bloggers.

Editorial: "Through it all, the lacrosse scandal has raised questions that strike at the very heart of what this University is about. But it's an injustice to this place to oversimplify matters."

Yes, oversimplification is an injustice.  Persecuting people for crimes they did not commit because their accuser is black, they are white and their prosecutor needs black votes is an even greater injustice.

Editorial: "It is indeed the media's job to get the full story. If bloggers want a voice in the discussion on the table, they-like the mainstream media-should set aside black and white conclusions and start focusing on the true blue and white."

Luke 6:42: "Or how can you tell your brother,'Brother, let me remove the speck of chaff that is in your eye,' when you yourself don't see the beam that is in your own eye? You hypocrite! First remove the beam from your own eye, and then you can see clearly to remove the speck of chaff that is in your brother's eye."

The bloggers were basically right.  Blogosphere errors in the Duke case pale into insignificance before major media transgressions.  The mainstream media got the Duke case wrong from the start, because the wrong story suited them perfectly.  The mainstream media needs to admit it and to resolve to focus on the truth. 

Some things ARE black and white, or right or wrong. 

What was done to the lacrosse players, especially the Duke Three, was utterly wrong.  The accuser, Ms. Mangum, enabled District Attorney Nifong to persecute the lacrosse players, and the mainstream media enabled Mr. Nifong to keep his job by doing so, instead of exposing him for the scoundrel he is.

To its credit, "60 Minutes" and the late Ed Bradley tried to make amends for the mainstream media, but the anti-Nifong vote split and Mr. Nifong won election with a plurality of the votes cast.

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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