"skeptical," a poster at Brooklyn College Professor Robert K.C. Johnson's wonderful "Durham-in-Wonderland website, recently commented: "There have been few issues which have united liberals and conservatives like the Duke case. Today we have had liberals such as Estrich and conservatives such as Sowell come out with strongly worded articles on the case. This may be an interesting topic for analysis."
"skeptical" is right about that.
But the record shows that Susan Estrich was very†late in calling false accuser Crystal Gail Mangum†"a liar."†
Did she do so because she saw the light? Or because she had to do so, in order to be credible and to promote, with some credibility,†her feminist views that Ms. Mangum is a victim and the rape law reform she championed that excludes certain truths from consideration in rape cases should remain intact?.
Ms. Estrich's New Year's Day article on the Duke case is titled "Duke Prosecutor's Fourth Victim."
Liestoppers retitled it "The woman is a liar" in its link, and Professor Johnson titled his commentary on the article "Estrich Pulls No Punches."†
But Ms. Estrich spent months trying to hit the members of the 2005-2006 Duke University Men's Lacrosse Team and their parents and lawyers with haymakers, figuratively speaking,
and there was nothing apologetic about the article with which she rang in the New Year.
It seems that†Ms. Estrich realized that the Duke case is collapsing and is trying to limit the fallout on rape law.
Ms. Estrich in "Try Rape Case in Court, Not on TV" (April 19, 2006):
"If the woman is telling any part of the truth, she went through a terrible assault once, and will almost certainly go through another one in the courtroom. But at least there are rules of evidence in the courtroom. What is absolutely inexcusable is the assault that she has been undergoing in the press.
"This case, now that arrests have been made, should be tried in a court of law, not in the public arena, and those who care about Duke should hold their fire instead of hiring their own gunslinger to join the carnage."
What Ms. Estrich found offensive was the possibility of "a 'Paula Jones' style 'nuts and sluts' defense and insisted that "[t]here†is nothing here for Duke to be defending."
Ms. Estrich: "The code of silence being followed by these athletes may be their constitutional right, but it is hardly something for Duke alumni to praise."
The team members refused to lie to please the prosecutor!
Ms.†Estrich missed the main point: that a rogue prosecutor was railroading Reade Seligmann, Collin Finnerty and David Evans (aka the Duke Three) for his own purposes and they needed the truth to prevail in the courtroom of public opinion in order to expose the Durham County, North Carolina District Attorney Michael B. Nifong and his enablers and to increase the chance that they would be treated fairly in a Durham court.
On April 23, 2006, in "Why Would Accuser in Duke Case Lie?," Ms. Estrich answered: "Why would they, given the stigma that is still attached to victims, and the humiliation involved in pursuing a complaint?"
Ms. Estrich not only omitted the right answer (avoiding incarceration and enjoying victim status and the hope that there would be convictions and civil lawyer† William Cary would convert them into big money judgments), but argued that Ms. Mangum had been truthful: "To be sure, no one has explained why a woman would leave her cell phone, makeup case and money in the bathroom, but those are just details. According to the defense, she was drunk, and polishing her nails. Polishing her nails? There must be a better explanation, but thatís what a real trial is for."
Ms. Estrich even targeted the parents of the team members: "Letís 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 co-captains all gave written statements to the police before a parent knew there was a problem.
They told the police what happened.
When Mr. Nifong proved to be concerned with politics instead of truth, the team members and their parents had a BIG problem.
But for co-captain David Evans' compelling public statement after he was indicted in May, the defense strategy apparently was to let Mr. Nifong continue to self-destruct and then expose him, without the benefit of public statements by the Three who won what the families call the Crystal Lottery.
It was not until the broadcast of the "60 Minutes" expose on the Duke case that America could see that Reade Seligmann and Collin Finnerty were not the monsters that Ms. Mangum and her supporters portrayed them to be.
If Judge Kenneth Titus had his way, the Three would have risked contempt of court if they had spoken with the media about the case.† (On July 17, 2006, Judge Titus gagged them, outrageously and unconstitutionally, on his own initiative, after the North Carolina NAACP, which lacked legal standing, asked for it anyway.)
Not contend with bashing their parents, Ms. Estrich compared the team members to the Mafia: "Yes, I know the Fifth Amendment says criminals donít 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."
In the same article in which she complained that the defense was "trashing the victim" and "reinforc[ing] the worst of the history of rape law, which is a history of both racism and sexism, in which the most serious offense was the rape of a white woman by a black man, and the least serious the rape of a black woman by anyone.
Ms. Estrich was outraged not by the Big Lie or the prosecution that was a persecution, but by "all the people who have been trashing [Ms. Mangum]††with a vigor I have never before seen in the 25 years Iíve been writing about and teaching rape law."
On May 19, 2006, Ms. Estrich produced "Lacrosstitutes."
Ms. Estrich celebrated the indictments of the Duke Three: "The indictment itself represents a grand jury's determination that there is probable cause to believe that the defendants have committed a felony. To the extent that there has been any formal determination of the likelihood of guilt, it actually cuts against the defendants."
As though the defense had a chance to address the grand jurors and all of the available evidence was presented to grand jurors who took the time to carefully evaluate it!
Ironically, in the same article Ms. Estrich complained of "the problems with trying cases on TV and talk radio" and warned: "People actually come to think that they are in a position to reach a verdict, when they have heard only part of the evidence, subject to no cross examination, delivered in a television studio and not in a court of law."
Why not also mention that the grand jurors heard only part of the evidence and there was no cross examination before the grand jury, Ms. Estrich?
Instead, Ms. Estrich mused about the sex appeal of male lacrosse players.
"What is the appeal, especially to women, not to mention conservatives, of these guys?
"Why is it that lacrosse players are reportedly quite popular among women, regularly accompanied on campus by females who are known as 'lacrosstitutes,' when their reputation is fully consistent if not with rape, than certainly with drinking parties with exotic dancers, in which women are treated like objects and not people?
"What claim do such men have on the loyalties of other students, especially female students?
"What is wrong with women that we find such men attractive?"
Ms. Estrich's lament: "Bad boys get the girl. Lacrosse players have women hanging on their arms. Chess players go home alone."
Liberal Ms. Estrich: "Conservatives have become the champions of these boys. Instead of expressing outrage at the boys' drinking and carrying on, conservatives have been attacking the district attorney, lambasting the woman and her supporters, and championing these bad boys who don't deserve champions."
Conservative, I am.
Conservative, Stuart Taylor, Professor Johnson and now MSNBC General Manager Dan Abrams are not.
We all defended the Duke Three when the evidence warranted it.
Mr. Abrams initially found the gang rape story plausible, based on his memories of his years at Duke, but he let the evidence enlighten him and he spoke out boldly (even though The New York Times was promoting the hoax).
Mr. Taylor, a member of the rugby team during his Princeton days, was not inclined to believe the Big Lie.† Against the tide, he wrote early that "the available evidence leaves [him] about 85 percent confident that the three members who have been indicted on rape charges are innocent and that the accusation is a lie."† Appreciating the enormous significance of the case, he took a sabbatical from National Journal to do research on the case for what will be his first book.
Ms. Estrich: "You'd think these were choirboys, to hear conservatives talk. Where is the outrage? These boys may or may not be rapists, but they're certainly not heroes. They use women like toilet paper, and then throw them away. That is, if they're telling the truth. Why champion them? They may not be guilty, but surely they aren't innocent. Is there a conservative man alive who would have wanted his daughter to find herself in that house, that night?"
My daughter would not have been there, and I would not have wanted her there. But I never described anyone who attended that party last spring as a choirboy.† I don't approve of stripper parties, but they are legal in North Carolina and I have been told by a source†I deem reliable that both the male and female lacrosse teams have been entertained by strippers.† Some feminists may celebrate that as a triumph of equal right; I lament it the stripper parties as equal wrongs.
The facts as I understand them simply do not support the use of the†"use women like toilet paper, and then throw them away" brush with which Mr. Estrich painted the members of the 2005-2006 Duke University Men's Lacrosse Team."
I found Ryan McFayden's email disgusting, but I'm told by those who know that it passes for college humor and was based on the "American Psycho" movie (which I have not seen and don't ever expect to see).
Also, it was a private email to teammates, not a public statement, and written right after the strippers had let the partiers feeling that they had paid $800 for two hours and gotten only a few minutes and trouble.
I certainly don't condone that email, but it was NOT intended to be taken literally or made public.
On July 12, 2006, in "Another Team Rape," Ms. Estrich did not hold back in sliming the members of the 2005-2006 Duke University Men's Lacrosse Team.
The title of her article implies that Ms. Mangum had been the victim of a team rape.
Ms. Estrich concluded her article this way:
"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.
"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?"
It was NOT "like Duke."†
Ms. Estrich in "Duke Case: Failure of†Procedure" (August 9, 2006): "It doesn't matter anymore why the DA was so determined to indict. His critics will say it was just because he was thinking about his political career. His supporters will say he really believed her, and that a District Attorney has every right to be responsive to the community that elects him. My guess is he really did believe her, but it certainly didn't hurt that he needed to. And one thing is clear: He's not going to change his mind now."
Also, it matters.† Mr. Nifong must be removed from office, as well as the Duke case, for egregious abuses of prosecutorial power.
Ms. Estrich: "Conservatives will be outraged that three boys' lives were ruined because an ambitious prosecutor believed a lying 'slut' (as in the nuts and sluts defense), which will be played to a fare-thee-well."
NO!† Because that prosecutor PRETENDED to believe her.†
Ms. Estrich: "Victims rights advocates like me will be depressed because we will worry, rightly, about all the messages being sent to legitimate victims."
EVERYBODY should be worried about both legitimate victims and false†rape charges.
In a June 8, 2006 article titled "Hard lessons for Duke," Ms. Estrich wrote as though she had been drinking deeply the Nifong Kool-aid:
"What happened at Duke certainly could have happened at a lot of other places, if not everywhere. It's about young men and alcohol, which is a combination you find almost everywhere. There are train wrecks waiting to happen and people looking the other way, across this country."
Ms. Estrich†conceded the possibility that the Duke Three are innocent: " What if the kids really were innocent? Who knows?"
But Ms. Estrich described the team members at the party as "a bunch of guys in a house drinking to excess."
So much for the presumption of innocence!
Ms. Estrich's June 16, 2006 article ("Judge O'Reilly on the Duke case") concluded with†this concise statement of her position: "I'm all for a special prosecutor in the Duke case, to eliminate any appearance of politics. But don't turn back the clock on rape law in the rush to find these boys innocent. Trust the jury to find the facts, after a fair trial, not a pontificator after watching defense lawyers preen."†
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.