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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:  January 3, 2007
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Duke Case: Susan Estrich, Excruciatingly Slow

Susan Estrich celebrated New Year’s Day by posting “Duke Prosecutor’s Fourth Victim.”  The best that can be said for Ms. Estrich is that she’s getting better, but that’s not much.

Yet Ms. Estrich is currently the Robert Kingsley Professor of Law and Political Science at the University of Southern California and a member of the Board of Contributors of USA Today. She writes the "Portia" column for American Lawyer Media and is a contributing editor of The Los Angeles Times. She was appointed by the president to serve on the National Holocaust Council and by the mayor of the City of Los Angeles to serve on that city's Ethics Commission.

Ms. Estrich also is a rape victim who is inclined to believe rape claims and to sympathize with rape claimants, so it is not shocking that when Ms. Estrich finally deemed the Duke case a complete travesty of justice, she still classified false accuser Crystal Gail Mangum as a victim.

Ms. Estrich still owes the members of the 2005-2006 Duke University Men’s Lacrosse Team and the families and lawyers an apology.

Ms. Estrich on January 1, 2007:

“There are four victims of District Attorney Mike Nifong’s twisted tactics in the Duke Lacrosse case.

“The first three, of course, are the young men who never would have been charged with anything had Nifong adhered to the standard practices in his own office. With luck, they will ultimately be exonerated, and be able to move on with their lives, albeit after having endured a chapter in hell.

“The fourth victim is unlikely to be so lucky; she will not be exonerated at trial, and she will not be able to move on with her life. She will be destroyed by this case, and while she is partly to blame for that herself, the other part of the blame rests squarely on Mike Nifong’s shoulders.”

Ms. Mangum surely is not a victim in the same sense as Reade Seligmann, Collin Finnerty and David Evans, aka the Duke Three.

Lumping their false accuser with the Duke Three seems odd to me.

The dictionary gives several definitions of victim.

One definition is “one that is tricked or duped.”

I’m sure Ms. Mangum tried to do some tricking and duping, but I don’t know that Mr. Nifong tricked or duped her.  Rather, he seems to have pretended she was truthful and she was hoping he’d win a conviction and then civil attorney Willie Gary would use the conviction to win a huge monetary judgment.

NOT my idea of victimhood.

Still, Ms. Estrich took off her blinders and saw some of the light.

Ms. Estrich: “The woman [Ms. Mangum] is a liar. That is the English translation of the latest round of maneuvers, in which the prosecution dismissed the rape charges because the woman could no longer say, as she once did, that she had intercourse with three men at the party. In other words, she lied when she said she did.”

When a former President of the Harvard Law Review and the campaign manager for the abysmal presidential campaign of Michael Dukasis (the Democrat from Massachusetts who lost in 1988) is right, she’s right.

Ms. Estrich is also right that Ms. Mangum still poses a challenge to the defense team: to be gentle with her if she ever testifies.

Ms. Estrich:

“The challenge for defense attorneys, in dealing with a woman who can’t remember whether she had intercourse with three men on a day when she must have had it with two others (to judge from the DNA on her body and underwear), is not to hit so hard that you provoke sympathy.

“If she can’t remember now, how come she was so sure then?”

Ms. Estrich no longer believes Ms. Mangum! (Perhaps she heard that her fellow Harvard Law Review colleague, Stuart Taylor, is now 99.9% sure that Ms. Mangum lied and knows that he is loathe to claim absolute certainty, so continuing to hold out would be really stupid!)

Whatever the reason, Ms. Estrich is not buying the notion that Ms. Mangum is so honest that the rape charges were dropped because she was not certain about whether she was penetrated by a male sex organ or a broomstick, but she was kidnapped and sexually abused, so there should be convictions on those charges and an escape from conviction of rape on a “technicality,” because Ms. Mangum would never overstate.

Ms. Estrich:

“Actually, she [Ms. Mangum] wasn’t sure, she was just making it up, she will be an admitted liar of the worst sort the moment she opens her mouth. She lied about rape. Dropping the rape charge does not remove the statements she made claiming rape from the case. Rape shield laws do not protect her when other contemporaneous sexual acts might explain the physical evidence of sexual contact and of bruising.

“The defense attorneys will obliterate her, permanently painting her as the worst sort of nut and slut. We will not hate the boys, we will hate her. The defendants have no choice: their freedom depends on destroying her credibility.”

Correction, Professor Estrich: Every though the prosecution is supposed to have to prove each and every element of each charged offense beyond a reasonable doubt and the defense is not supposed to have any burdem perhaps in Durham, North Carolina their freedom depends upon showing that Ms. Mangum is NOT credible.  Still, Ms. Mangum does NOT have credibility to destroy.

About Mr. Nifong, Ms. Estrich is right: “Mike Nifong does have a choice. He doesn’t have to build a case on someone who shouldn’t be carrying it. It’s his job to recognize that and act accordingly-- for her sake, and the community’s, as well as the defendants.”

As a rape victim, Ms. Estrich’s preference for making rape easy to prove is unsurprising and Ms. Estrich obviously appreciates that the Duke case illustrates why the law was what is was before so-called rape law reform.

Ms. Estrich:

”In the bad old days, before rape laws were reformed, a number of jurisdictions enforced a special corroboration rule in rape cases that provided that a case could not go to the jury on the uncorroborated testimony of the victim. The idea behind the rule was, as Sir Matthew Hale famously warned, that rape is a crime ‘easy to charge but hard to prove, and harder still to disprove’ even by one who is innocent.

“So special rules were needed, or so it was thought, to protect men against acts of spite so easily launched and so difficult to disprove.

“Every jurisdiction that had corroboration requirements ultimately got rid of them, as a formal matter, but informally, of course it matters whether there is corroborating evidence.”

Wisely, Ms. Estrich concedes that not every rape claim should be decided by a jury:

”No study has ever found that women lie about rape any more often than men (and women) do about other crimes, but that doesn’t mean that every complaint belongs in a criminal trial. The job of the prosecutor, especially because of the special stigma that comes simply with the charge of rape, is to screen out those cases that should not, or cannot, be won, and not bring them in the first place.”

Mr. Nifong’s personal and political interests stopped him from screening out Ms. Mangum’s gang rape claim, and Ms. Estrich is concerned that the ease of rape prosecution no longer will be the same.

Amazingly, Ms. Estrich is still saying that Mr. Nifong really believed there was a gang rape:

“The complaint filed by the North Carolina bar against the prosecutor [Mr. Nifong] this week recounts many of his early statements in the case, including his certainty that a rape had taken place, at a time when he had no reason for any such certainty.

“I’m no fan of punishing lawyers for what they say to the media, even when it’s the prosecutor overstepping. What troubles me about NIfong’s comments is less that he said them to the media than that he believed them himself.

“He had no reason ever to be certain of her story, given what we now know. There were obvious questions about her condition that night; obvious issues about her credibility; and an utter failure to corroborate the key element of her story with DNA tests. And that doesn’t even begin to address the problems with her identification of the defendants, who didn’t match her initial descriptions and were selected from an array composed only of team members, protecting her against making the mistake of choosing someone who wasn’t there.

“Not to mention the alibis of the boys she did select. This was a train wreck waiting to happen from the get-go.

“Who did he think he was helping by ignoring the obvious?”

Professor Estrich, he was helping himself to the lion’s share of the black vote that he desperated needed to win the Democrat primary for district attorney on May 2, 2006 in a three-way race with a female former assistant district attorney (Freda Black) who would have won but for the way Mr. Nifong exploited the Duke case and a black attorney (Keith Bishop) who otherwise would have gotten plenty more black votes in that primary.

AND: If Mr. Nifong really believed Ms. Mangum, he would not have refused to consider evidence of innocence that Reade Seligmann attorney Kirk Osborn (whom he had known for about twenty-five years) tried to show to him or behaved so badly with Kerry Sutton, another attorney representing innocent members of the 2005-2006 Duke University Men’s Lacrosse Team.

Mr. Nifong was NOT mistaken, Professor Estrich.  Get real!

Ms. Estrich:

“Just exactly who did Mike Nifong think he was doing a favor by pushing forward a case with an alleged victim who, the minute she spoke, would inevitably be massacred as a lying slut?

“Her? Her family? Her community? So that later there would be pressure to charge her for lying? Did he really think he was doing her any favors?”

HIMSELF!

Ms. Estrich:

“It’s the prosecutor’s job to avoid this kind of mess, not make it. Maybe all Mike Nifong ever cared about was getting elected, no matter how many victims he created. For all his claims to be standing up for the woman in this case, he in fact was doing just the opposite.

“If he felt sorry for her, he should have gotten help for her, not given her the one-way ticket to hell which this prosecution is certain to be. With friends like Mike Nifong, who needs enemies?”

Now that’s a good question!

But Ms. Estrich herself has not tried to be a friend to Ms. Mangum.

On June 17, 2006, I wrote an article titled “Suggestion to Crystal: pray, learn from Cynthia, apologize.”

Ms. Estrich was not with me in urging Crystal to admit that she should not have claimed to be the victim of any rape or other crime at that lacrosse team party last March.

Ms. Estrich was treating Ms. Mangum as a victim instead and condemning the team members, their parents and their lawyers.

On June 4, 2006, Ms. Estrich wrote an article titled "Needed: A Special Prosecutor for the Duke Rape Case."

Mr. Estrich was urging better competition for the dream team defending the Duke Three!

Really!!!

Ms. Estrich:

"Is Mike Nifong, the local prosecutor, really any match for Bob Bennett, the legendary Clinton defender hired by the Duke team parents? Should we expect him to be? So why not hire Bennett's equal to represent the state?"

“There simply must be a fancy lawyer or law firm in North Carolina that has not been involved in this case to date, and would agree to take it on, devote the resources necessary, match the defense in every way, and give the accuser and the people the same high quality representation that the defense will receive."

As I wrote in “Susan Estrich: Out of Control,” posted on July 18, 2006: “A special prosecutor for the Durham District Attorney and Ms. Mangum would have been a better suggestion.”

Ms. Estrich frankly acknowledged her lonely (and loony) position then: "By now, I think I maybe the only 'expert' commentator who has not given up completely on the prosecution in the Duke rape case."

Undeterred, on July 12, 2006, Ms. Estrich wrote "Another Team Rape" (insinuating that Ms. Mangum was the victim of a "team rape").

Ms. Estrich:

"This is not the Duke lacrosse team.

"There are no fancy lawyers, no committee set up to support the players, no Bob Bennett on board to spin the press. There have been no national press conferences, no visiting anchorpeople clamoring for interviews. The team isn't ranked, the players weren't stars — no one has any money. And it's ugly.

"When six prospective members of the Fresno City College football team arrived at the Fresno, Calif., Police Station to be questioned about the alleged rape of an 11-year-old runaway, the only advice they had came from a lawyer whose son once played for the team.

"For free, he told them that if they didn't do anything wrong, they should provide statements to the police — and if they had done 'something to be concerned with, even if it was consensual, or if they had done something to abet or aid, they might want to exercise their Fifth Amendment rights.' This, according to the local paper.

"The police do not always get roadmaps so easily. The Duke boys didn't give them statements. They don't give roadmaps to the police. They never talk to the police without having their own lawyers present.

"Two men have already been arrested and are in custody. The Duke defendants are all out on bail.

"The police were called last Saturday night after the girl left an apartment that had apparently been rented for the players, most of whom come from out-of-state, where two-year colleges routinely don't offer football. The sheriff has said that evidence at the scene supported the girl's story. According to the lawyer, the boys said 'she was tall and had some development. ... They all said she "looked like she was 18 or 19 to me."'

"Maybe so. But as the lawyer told them, it's no defense to child molestation that you don't know it's a child — and no defense to oral copulation with a child under 18 that you don't know her age.

"The girl had run away from a group home. Her life no doubt wasn't very good to begin with. For the boys, convictions will likely ruin the chance they had to escape. The two-year college scholarship might have lead to another one, to a four-year school, to a degree, to a different life.

"All for what?

"Stupid. Stupid. Stupid. It wasn't a party. They were going back and forth between apartments.

"According to the sheriff, 'as many as 10 men' may have been involved in the assault.

"Ten men and one girl.

"It doesn't matter if she's tall or small. It doesn't matter if she looks older than her age or not. Practice was scheduled to begin in August. These guys had everything to lose and so little to gain.

"Why would 10 men assault one girl?

"They're football players. She's a girl. There are 10 of them and one of her.

"Why would anyone do nothing and let it happen?

"Can we teach this?

"Yes, of course, she shouldn't be there, the group home should be better, someone should be helping her — but she is there, and is there one of them who has a sister, who can see a disaster, a horror show, a human spectacle about to unfold? Is there one human being who stops a travesty from happening not only because it will end up ruining their lives, but also because it will ruin hers?

"How many stories like this have to happen, how many teams have to go down, how many chances have to go up in smoke, first?

"In that respect, it is like Duke, only these boys will pay and pay.

"Will conservatives defend them, too? "

Ms. Estrich is a proud liberal, to be sure.   She deems to fancy herself the Left’s answer to Ann Coulter, having written a book called “Soulless” in response to Ann Coulter’s “Godless” and exercised and then dressed like Ann Coulter is dressed on her “Godless” book cover for a photograph for her “Soulless” book cover.

Ann Coulter can deal with Ms. Estrich herself, of course, but Ms. Estrich should be apologizing to the members of the 2005-2006 Duke University Men’s Lacrosse Team for that “"In that respect, it is like Duke, only these boys will pay and pay” line.

I wrote in “Susan Estrich: Out of Control”:

“Ms. Estrich, I am not familiar with the Fresno City College football team, so I don't know whether they should be suing you for defamation, but it seems to me that you have defamed the entire 2005-2006 Duke University men's lacrosse team: ‘In that respect, it is like Duke, only these boys will pay and pay.’

“It is tragic that the consequences of rape can be so long-term, but that does not excuse savaging the Duke's men's lacrosse players or putting on blinders so as not to see that the Duke rape case is really the Duke rape hoax.” Unlike Ms. Estrich, I have no need to revise my view of the Duke case and of her early commentary on it as a disgrace.

I suspect Duke case defense lawyers welcome Ms. Estrich’s movement toward the light, without forgetting that Mr. Estrich wrote: "Yes, I know the Fifth Amendment says criminals don't have to talk. I teach criminal law. But what are we dealing with here? The mafia, or a sports team from a first-class university. Instead, they hire them lawyers to trash the victim and the prosecutor."

Those lawyers were hired to defend innocent young (white) men in a racially charged atmosphere worsened by a (white) district attorney playing the race card given him by a (black) ex-convict stripper, NOT “to trash the victim and the prosecutor.”

To the best of my knowledge, information and belief, those lawyers told the truth and did not “trash” either Mr. Mangum or Mr. Nifong.  Answering false charges and telling the truth is NOT trashing.  Ms. Mangum was not a victim of any of the lacrosse players.  Mr. Nifong was and still is the prosecutor, but not for much longer.

PS:  I said that Ms. Estrich also owed the parents an apology.  I had this complaint of hers in mind at the time: "Let's start with the team parents, who should be furious with their sons for blowing their season and embarrassing their school. And yet apparently not one parent, not one, has said to her son, 'you go in there and tell the police the truth about what happened.'" The team told the police the truth, Professor Estrich.  YOU chose not to believe it.

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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