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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:  December 13, 2006
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Lessons from the Duke Case and Hurricane Katrina

Young white men from wealthy families can become scapegoats too. But scapegoating is a bad thing to do and, when the wrong scapegoat is picked, something even in this life to rue.

Different people want the Duke Three (Reade Seligmann, Collin Finnerty and David Evans) to be guilty of kidnapping, rape and sexual assault for different reasons.

Take Ruth Marcus, the white Washington Post reporter who wrote in a June 28 article titled "Reasonable Doubt at Duke": "In an odd way, I hope Nifong's proved right, because the alternative -- that he began with a dubious case and stuck with it as it became shakier -- is so troubling."

It sure is "troubling."

It's even more" troubling" that apparently nothing has been done to remove a rogue prosecutor (Durham County, North Carolina District Attorney Michael B. Nifong) from the Duke case, if not his office and the North Carolina state bar, even though Kirk Osborn, a Reade Seligmann attorney moved for removal on May 1 and many people have filed grievances against Mr. Nifong with the North Carolina state bar and many of them have copied North Carolina's Governor (Michael Easley) and Attorney General (Roy Cooper).

The News & Observer recently reported: "Michael Cornacchia of New York, one of [Collin] Finnerty's attorneys.... wrote to the U.S. attorney general, the FBI director, the congressional delegations of North Carolina and Long Island [and] [t]he case merits an immediate investigation by the U.S. Department of Justice...."

But the federal government apparently has not learned an important Katrina lesson: when local authorities obviously are not up to the task (or willing) to do what needs to be done to protect innocent Americans, the federal government ultimately will pay the price for standing by and watching instead of acting to help the innocent.

The media initially made former FEMA Director Michael D. Brown the scapegoat for Katrina. They preferred to tell who the story of an uncaring and incompetent federal government victimizing the poor black people of New Orleans, not the story of Louisiana having failed for decades to prepare for a hurricane like Katrina and having corruption and competence problems that facilitated and exacerbated the damage wrought by Hurricane Katrina.

The media mostly ignoring FEMA's limited statutory role (assisting first responders) and capability as well as the failings of New Orleans, a black-dominated city, under Ray Nagin, a black mayor known for bungling, bluster and racist oratory (remember his insistence that New Orleans remain "a chocolate city"?) who did not have a workable master plan for a natural disaster and recklessly refused the requests of Mr. Brown and, at Mr. Brown's request, President Bush, to order a mandatory evacuation.

The media decision was to scapegoat Mike Brown, even though he was an experienced disaster manger who had been lauded by Congress for the way he had dealt with the four major hurricanes that struck Florida is quick succession in 2004 and had been warning (albeit unsuccessfully) of the need to prepare for precisely the kind of catastrophe that Hurricane Katrina became.

For detail, see The Hurricane Katrina catastrophe inside story: Mike Brown answers my questions.

To those who still do not appreciate what Mr. Brown had to try to deal with in dealing with the authorities in Louisiana, especially the New Orleans authorities, please take note that New Orleans' black Congressman William "Keep Cold Cash in Freezer" Jefferson won his runoff election with 57% of the vote and the support of Mayor Nagin (himself re-elected since Hurricane Katrina). [Note: Congressman Jefferson has not been indicted, yet. Nor has he explained how $90,000 in marked bills ended up in his freezer]

Like Mr. Brown, each of the Duke Three is white...and a scapegoat.

When told that Mr. Brown was being pilloried by the media, President Bush replied, "Better him that me or [Homeland Security Secretary Michael] Chertoff.

Heartfelt, presumably, but hardly words of which President Bush can be proud.

The Duke Three have been scapegoated as the sacrifice required for Mr. Nifong to be elected and as punishment for white racism historically.

Duke English Professor Karla Holloway (and chair of the Race Subcommittee of Duke President William Brodhead’s Campus Cultures Initiative and member of the Group of 88) is not wrong about everything related to the Duke case.

In The Scholar & Feminist Online (published by The Barnard Center for Research on Women), Professor Holloway wrote: "In nearly every social context that emerged following the [2005-2006 Duke University Men's Lacrosse] team's crude conduct, innocence and guilt have been assessed through a metric of race and gender. White innocence means black guilt. Men's innocence means women's guilt."

Many people have assessed innocence and guilt "through a metric of race and gender."

BUT...everyone needs to respect the facts and the law and, based on the facts and the law, the Duke case never should have been brought and should have been dismissed months ago.

If the Duke Three, who are young white men, are innocent of the felony charged pending against them in the Duke case (and the evidence of innocence, lack of evidence of guilt and their polygraph tests all indicate that they are), their accuser (Crystal Gail Mangum), who is a young black woman who has told conflicting stories and is an ex convict stripper, is guilty of falsely reporting that they kidnapped, raped and sexually assaulted her.

Brooklyn College Professor Robert K. C. Johnson analyzed Professor Holloway's brief article and was particularly targeted her attitude toward justice.

Professor Holloway had written:

"Justice inevitably has an attendant social construction. And this parallelism means that despite what may be our desire, the seriousness of the matter cannot be finally or fully adjudicated in the courts. The appropriate presumption of innocence that follows the players, however the legal case is determined, is neither the critical social indicator of the event, nor the final measure of its cultural facts. Judgments about the issues of race and gender that the lacrosse team's sleazy conduct exposed cannot be left to the courtroom. Just as aspects of their conduct that extend into the social realms of character and integrity should not be the parameters of adjudicatory processes, the consequence of that conduct will not be fully resolved within a legal process. Those injured by this affair, including the student and the other young woman who were invited to dance under false pretenses and then racially (at least) abused, as well as Duke's campus and Durham's communities, are bodies left on the line - vulnerable to a social review that has been mixed with insensitive ridicule as well as reasoned empathy. Despite the damaging logic that associates the credibility of a socio-cultural context to the outcome of the legal process, we will find that even as the accusations that might be legally processed are confined to a courtroom, the cultural and social issues excavated in this upheaval linger."

Professor Johnson made Professor Holloway's dangerous words more intelligible as well as rejected them:

"Holloway advances four basic arguments:

1.) The courts will not reach the desired outcome to advance her on-campus aims, and so their results must be preemptively dismissed.

'Justice,' claims Holloway, 'inevitably has an attendant social construction. And this parallelism means that despite what may be our desire, the seriousness of the matter cannot be finally or fully adjudicated in the courts.' Therefore, since the presumption of innocence 'is neither the critical social indicator of the event, nor the final measure of its cultural facts,' judgments about the case 'cannot be left to the courtroom.' In a sentence that captures Holloway’s obtuse writing style, she asserts, 'Despite the damaging logic that associates the credibility of a socio-cultural context to the outcome of the legal process, we will find that even as the accusations that might be legally processed are confined to a courtroom, the cultural and social issues excavated in this upheaval linger.'

"Coming from a professor who is teaching a course called 'Language of Constitutional Law,' this viewpoint is chilling. But those who have such a dismissive attitude toward events 'confined to a courtroom' are unlikely to champion due process and standard procedures. In this respect, the article helps explains why Holloway had no trouble signing the Group of 88's statement, despite its blatant dismissal of principles of due process."

Ms. Marcus is not vested in the Duke Hoax, so she followed the evidence and changed her mind.

Ms. Marcus on her initial take:

"At the start, I presumed they were guilty. The rape charges against three members of the Duke lacrosse team sounded like a plausible case of Jocks Gone Wild. It wasn't hard to imagine that a bunch of rowdy, hard-drinking players could have crossed the line from watching a paid dancer to sexually assaulting her.

"After all, these were students who had plunked down $800 for a pair of strippers and were angry that their cash had bought only a few minutes of bare flesh. The show was called off when one player asked about sex toys and 'said he would use the broomstick on us,' according to the second dancer."

Ms. Marcus on the effect of the evidence:

"[T]he more evidence that has emerged in the case, the more it appears that there is way more than reasonable doubt that the three accused committed rape.

"The paucity of physical evidence; the accuser's prior unsubstantiated rape charge; her changing stories that night; sloppy and unreliable identification procedures -- any of these alone, and certainly all of them together, make it hard to understand why the prosecution is going forward and impossible to imagine that it could win a conviction."

Specifically:

"[H]ere's what makes me doubtful:

* There's almost no physical evidence. Two rounds of DNA testing failed to produce any evidence of semen from Duke players -- as might have been expected, given the accusation that the woman was orally, vaginally and anally penetrated, along with being choked, beaten and kicked. (DNA from one of the students, David Evans, may match material taken from the accuser's fake fingernail.) Indeed, although the prosecutor claimed the medical report found injuries consistent with sexual assault, the nurse-in-training who examined the woman found only swelling of the vaginal walls -- something that might be explained by the fact that the woman reported using a vibrator as she performed for a couple hours earlier.

* The second dancer told police that the rape charges were a 'crock' and that she and the accuser had been apart for only five minutes at the party.

* The accuser made an earlier, seemingly unsubstantiated allegation of being the victim of a gang rape. She said she was attacked by three men in 1993, when she was 14, but didn't file a police report until three years later. The matter was dropped after she failed to provide a statement to the investigating officer.

* She gave six different accounts of what happened the night of the incident: She did not originally mention rape to the police when they found her in a car outside a grocery store; raised the rape allegation after being taken to a substance abuse facility; later said that 'no one forced her to have sex'; and gave accounts of the alleged incident that differed in various ways, including the number of attackers and the type of assault.

* It's true, and totally understandable, that rape victims often provide inconsistent accounts. But even if a sexual assault did occur in this case, there's ample reason to question whether the right students were charged. The accuser said her attackers were named 'Bret, Adam and Matt'; the indicted students are Reade, Collin and David."

Since Ms. Marcus wrote that, even more information has come out demonstrating that Reade, Collin and David are innocent and their accuser is a false accuser. The "60 Minutes" expose, including interviews with Reade, Collin and David as well as Kim Roberts Pittman (the second ex convict stripper) and a video of the false accuser pole dancing at an unsavory establishment not long after she had claimed to have been gang raped and while she was claiming to be terrified of white men and in terrible pain requiring a prescription drug.

But the anti-Nifong vote was divided, so Mr. Nifong managed a plurality victory, thanks to overwhelming black support, and the Duke case will continue until justice finally prevails.

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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