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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 9, 2007
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Topic category:  Other/General

Duke Case: Reverse Racism and Obliviousness

Julian Bond announced, the day after the Dr. Martin Luther King was assassinated, that "non-violence was shot to death in Memphis last night; join me on the barricades!"  William F. Buckley, Jr. followed. He began by asking all Catholics to stand. All Jews. Agnostics. Christians. Republicans. Democrats. Liberals. Conservatives. Middle class. Soon everybody was standing in the Vanderbilt gym. "Now, please sit down if you do not join me in mourning the passing of a great American," Mr. Buckley intoned. Everyone kept standing. "Mr. Bond - this is the salient datum about America," said Mr. Buckley with a sweeping gesture, "not that we bred the aberrant executioner, but that we join you in mourning his death. And if from men like you this is the best we can expect, then little hope is left, either for peace between the races, or in this country."

After Kyle Dowd, a member of the 2005-2006 Duke University Men's Lacrosse Team, and his parents sued Duke University and Visiting Professor Kim F. Curtis, essentially for failing him in her course and nearly blocking his graduation because Ms. Curtis believed that there had been a rape at that lacrosse team party last March and Duke University ratified her abuse of grading power (before finally accepting Johns Hopkins credits Kyle had earned, letting Kyle graduate and acknowledging a "calculation error" that raised his grade to "D" (he had not gotten less than a "C" on a paper until he enrolled in Ms. Curtis's " Literature and Politics" course).

Kimm Williams of Charlotte, North Carolina was so outraged by the filing of the Dowd suiot that he wrote to The Charlotte Observer, frankly, and chillingly.

Observer forum: Letters to editor

Young black men, too, would like apology

In response to "Former Duke lacrosse player sues school over failing grade" (Jan. 5):

"As an African American, I'm fed up with all this nonsense. These lacrosse players feel that they're owed an apology for being dragged through the legal system? Well, welcome to the real world.

"Every day in my neighborhood (28206), African American males are pulled over because they fit a 'description,' then searched and talked to disrespectfully. If they respond with displeasure or 'threatening" gestures, they risk arrest.

"Even sadder are the many men, black and white, who remain in jail -- losing wages, jobs and respect -- because they lack the financial privilege to post bail. Often charges are dropped or reduced after being found without merit.

"For having been 'inconvenienced' these young men hear no apologies -- only 'You are free to go.'"

Sadly, North Carolina Central University's Chan Hall, then 22 and a student senator, was not only speaking for himself when he told Newsweek early in the Duke case that he wanted prosecution of Duke lacrosse players "whether it happened or not."

People consumed by hatred and envy are dangerous to society as well as themselves, regardless of race, color, creed, sex or national origin.

Mr. Williams referred to "these lacrosse players" (plural) not simply to Mr. Dowd.

"[T]hese lacrosse players" are owed much more than an apology, especially Reade Seligmann, Collin Finnerty and David Evans.

They were persecuted because someone lied and someone pretended the lie was true, because it suited him nicely, and even exacerbated racial tensions and conspired to cover up exculpatory evidence.

They have been put through hell and their families have been put through hell with them and put to enormous expense.

Fortunately, the families could afford not only bail, but the lawyers, experts and investigators who worked assiduously to demonstrate that the charges were bogus.

I applaud the Dowd family suit as a public service.  It is much needed, not nonsense, if professors are to be held accountable for grade abuse.

As an American, I am fed up with political corruption and racism of whatever kind and I loathe abusive prosecutors and scapegoaters.

When a young white woman who chose to visit Kobe Bryant in his hotel room later charged him with rape, it soon became apparent that she was hoping for the local prosecutor to pave the way for her to hit the jackpot by way of a civil suit. Convinced that there was ample reasonable doubt that Mr. Bryant had committed a crime, I criticized the prosecutor for pursuing the case. I do not believe that a prosecutor should pursue a case where there is reasonable doubt, especially when there is or will be a civil suit in which the plaintiff hopes for a free ride at taxpayer expense. Unsurprisingly, the criminal case against Mr. Bryant eventually fell apart, and Mr. Bryant later settled the civil claim in order to get on with his life.

When a young black woman who chose to strip at an off-campus Duke lacrosse party later charged Duke lacrosse players with rape, I suspected that it was not the Duke lacrosse players were guilty only of bad taste, not rape. Subsequent developments have repeatedly confirmed my suspicion. But, the local prosecutor continues to prosecute three Duke players on what surely seems to be a phony rape charge.

Likewise, I criticized prosecutor Tom Snedden for pursuing Michael Jackson.  Prosecutors are not entitled to use their office to pursue vendettas and Mr. Snedden's key witnesses (mother and son) hardly could be believed beyond a reasonable doubt.

Durham County, North Carolina District Attorney Michael B. Nifong makes the prosecutors in the Bryant and Jackson cases look stellar by comparison.

The late Ed Bradley was fed up with Tawana Brawley-type cases and exposed the Duke case as bogus.

Unfortunately, Mr. Williams does not think like Mr. Bradley did.

The young men often referred to as the Duke Three did not even fit Crystal Gail Mangum's original descriptions.

 None of the Three was arrested for speaking disrespectfully or making threatening gestures to a policeman, and they did not kidnap, or rape, or sexually assault Ms. Mangum.  They just "won" the Crystal Lottery.

The identification procedure referred to by the families of the lacrosse players as the Crystal Lottery was so manipulated as to be malicious.

To be sure, blacks have been disproportionately abused.

The solution is not to abuse more innocent whites.

Or to eliminate bail.

The solution is to look beyond pigmentation and follow the evidence wherever it leads, whether you want it to lead there or not.

"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 said Dr. King.

He was addressing everyone, not just whites.

Mr. Hall and Mr. Williams included.

Obviously, it was his dream for everyone, not just four blacks.

The Duke case has been a nightmare, because the truth was denied by a complainant and a prosecutor who, respectively (not obviously not respectfully), lied and pretended the lie was the truth.

North Carolina journalist and television commentator Cash Michaels, who has covered the Duke case for BlackPressUSA Network, is reporting on the fall of Mr. Nifong, a fall he might  have accelerated if he had told his readers and viewers that Mr. Nifong lacked evidence to support the rape, kidnapping and sexual offense charges; Ms. Mangum's credibility as complainant in the Duke was impugned not only by her criminal history but by her contradictory versions of what supposedly happened and DNA test results; and generally helped Durham's Black community to appreciate that Mr. Nifong was trying to manipulate them for his own purposes and succeeding.

In "Pressure Is on Durham D.A. to Drop Charges," posted on January 6, 2007, Mr. Michaels referred to the baseless Duke case as "the infamous Duke lacrosse sexual assault and kidnapping case is" and reported that "the pressure on Durham District Attorney Mike Nifong not only to drop the charges, but resign his office now, is building, calling into question not only the future of the case, but of the prosecutor as well."

With a nod toward reality, Mr. Michaels asserted: "With both a state, and possible federal probe hanging over Nifong’s head, many doubt that he’ll survive the next six months."

Mr. Michaels found it newsworthy that "at least one Duke professor, an African-American, has resigned from various on-campus committees in protest" of Duke University inviting Reade Seligmann and Collin Finnerty to return, but not the professor's name.

Mr. Michaels also found it newsworthy that "Duke Three supporters, angry with a Black newspaper’s editorial suggesting that the court system should decide the defendants’ fate, used terms like 'niggers' and 'savages' in their claims that the Black community only wants 'racial revenge' to see the white suspects convicted."

Mr. Michaels again neglected to identify anyone.  It's NOT hard for me to assume that some of the multitude of Duke Three supporters (our tribe has multiplied greatly as the truth caught up with the lies and the demagoguery) or to join Mr. Michaels from condemning such despicable ranting.  Of course, such racist ranting is NOT the work of the Duke Three supporters I know and is counterpoint to the vile language of some Nifongistas who have emailed me and/or posted sick messages.

Duke Three supporters like Dr. William Anderson and I, among others, have been reviled by nutcases too.

In Dr. Anderson's case, it is especially misplaced.

As Dr. Anderson wrote in an email to a critic: "You can call me a racist blog hooligan if you wish, but remember that my two adopted sons are black, so is you wish to hang the racist moniker on me, you are telling me that I hate my own children.  Think about it."

There needs to be much more thinking and  much less venting.

Mr. Michaels:

"It’s been downhill for the DA since it was revealed during a December 15 hearing that Nifong, in alleged violation of state law to hand over all evidence to the defense, told the director of a private DNA lab to sequester DNA test results that exonerated three indicted Duke lacrosse players of raping a Black exotic dancer last March.

"The proverbial dam burst against the embattled prosecutor almost immediately with a flood of criticism from across the nation, especially after Nifong was subsequently forced to drop those first-degree rape charges. Several legal experts, newspaper editorialists, and even other district attorneys, charged that Nifong’s ability to credibly manage the remainder of his case had been severely compromised by his own hand."

Actually, all the District Attorneys of North Carolina's 99 other counties publicly stated that "It is in the best interest of justice and the effective administration of criminal justice that Mr. Nifong immediately withdraw and recuse himself from the prosecution of [the Duke case] and request the cases be assigned to another prosecutorial authority."

Mr. Michaels had Duke Professor James Coleman and North Carolina Central State Professor Irving Joyner, legal experts who happen to be black (Mr. Michaels did not have a white legal expert for racial balance, perhaps because it was not necessary), on the last broadcast of his television program, to discuss the Duke case and his report suggests that the end is near for Mr. Nifong, with Professor Joyner, who has been monitoring the Duke case for the North Carolina NAACP creating plenty of separation from Mr. Nifong.

Mr. Michaels:

"'I think from the very beginning the manner in which he’s handled this [case] was based on some ulterior motive…' charged Duke University Law Prof. James Coleman on NBC-17 News 'At Issue' last weekend.

"Nifong’s critics, and subsequently the State Bar, alleged that early in the case he gave a multitude of press interviews and made racially explosive and highly prejudicial statements, like calling the players 'hooligans' who raped ‘…a black girl in Durham,' knowing he didn’t have the evidence, in order to attract Black voter support for the May Democratic primary, where he faced two other opponents, one of them an African-American.

"The State Bar, which regulates and licenses attorneys in the state, charged in a 17-page complaint issued last week, that Nifong engaged in 'dishonesty, fraud, deceit and misrepresentation' in those public statements

"If Nifong is found guilty, he could lose his law license for up to five years, and even be drummed out of office. Most legal observers say it is highly unusual for the State Bar to file charges during the course of a pending trial, but that this is an unusual case.

"Prof. Coleman, who is Black, was one of the first to criticize D.A. Nifong.

“'If you look at the comments that he made that are set out in the [NC State Bar] complaint that injected race into the case, he put it center to the case,' Coleman said. 'The only explanation for that at the stage it was done was political motive.'

"Prof. Irving Joyner of the North Carolina Central University School of Law agrees that the State Bar charges are serious, and probably will force Nifong to pass the case on to a special prosecutor in order to prepare his own defense."

It was Professor Nifong who speculated that Mr. Nifong might have evidence that he had not disclosed, notwithstanding North Carolina's open discovery law, keeping hope alive for those who wanted the charges to be meritorious instead of malicious.

But, Professor Joyner still thinks Mr. Nifong will soldier on in the Duke case, regardless of what all the other North Carolina District Attorneys think and the North Carolina State Bar did.

Mr. Michaels:

"But will Nifong, as he is being pressured to do, drop the charges altogether?

“'I think it’s unlikely that [the remaining charges will be dropped],' Joyner, who is monitoring the case for the NC NAACP, told NBC-17 News 'At Issue' when both he and Coleman appeared last Sunday.

“'The prosecution has tightened up the case rather than diminish [it] because it’s a lot easier to prove sexual offense charges than it is to prove rape.' Joyner adds that if there is a trial, the credibility of the kidnapping charges will rest with the credibility of the accuser versus the defendants with the jury. He says the problem is the whole atmosphere has 'been tainted' by both the comments of the prosecutor and the defense, and exposes the vulnerabilities of the criminal justice process."

The criminal justice process is vulnerable to the prosecutorial abuse of Mr. Nifong and the musings of Professor Joyner.

Mr. Michaels also reported "an effort, perhaps, to counter North Carolina Congressman Walter Jones’ formal request of the US Justice Dept to probe D.A. Nifong for allegedly violating the civil rights of the three defendants," specifically, "a local Black activist, Kim Brummell, sent a civil rights complaint to U.S. Attorney Gen. Alberto Gonzales, asking him to formally investigate allegations of 'racial slurs’ directed towards the Black exotic dancer and her female partner the night of the alleged assault."

To the extent that anyone is equating a county's criminal justice system railroading of three young men on bogus first-degree felony charges with persons uttering of "racial slurs" (whether it be the N word, aimed at blacks, or "hooligan," aimed at whites of Irish ancestry), I am of the opinion that one is state action demanding federal intervention to vindicate fundamental constitutional rights to due process and, in the Duke case, equal protection, and the other is not state action, but an abuse of freedom of speech that state authorities should deal with if a complaint is made by a person with standing to make it.

Mr. Michaels: "Reportedly, at least one lacrosse player, though not necessarily any of the three defendants, was heard to have called the Black girls 'niggers,' with another suggesting that they thank their granddaddy for the cotton shirt he was wearing, a racist reference to Black slavery."

Vile language, to be sure.  But NOT used by ANY of the Duke Three!

Instead of attacking those responsible for the bogus prosecution and the playing of many of Durham County's black voters for fools, Mr. Michaels targets "many Duke Three supporters" for impatience and litigiousness!

Mr. Michaels:

"For many Duke Three supporters, that’s simply not soon enough. They not only want the charges dropped and Nifong banished from office, but they also want him prosecuted, or at the very least, sued.

"They diligently go after any reporter or commentator they feel is contrary to their agenda, and have been especially critical of the Black Press.

"When The Wilmington Journal recently published an editorial titled 'How Money Trumps Justice,' suggesting that the only fair way to determine the guilt or innocence of the Duke Three defendants is allowing the criminal justice process to proceed, instead of Nifong dropping charges, the response was both explosive and angry.

“'[Your] editorial on the Duke rape case makes it clear that black racists control your newspaper,' emailed someone named 'Stephen.'

“'You have nothing to say, except that individual justice doesn’t matter to you, and that the criminal justice system should be subordinated to you desires for racial revenge.'

“'There really is such as thing as a nigger. You folks are ignorant niggers,' Stephen concluded Another emailer name 'Amy' wrote, 'Your editorial was a disgrace. You are a filthy bunch of intellectually dishonest savages.'

"She then ended her missive with a polite, 'Thank you.'"

"And an emailer named 'DB' chastised the paper for suggesting the Duke Three shouldn’t be treated any differently than any victimized Black defendants trying to prove their innocence.

“'If you want to know why American Blacks lag behind in education, jobs and income and lead in crime, teen pregnancy and unemployment I suggest you look in the mirror,' DB wrote.

"The paper says it stands by its editorial."

Mr. Michaels goes fishing for white racists and apparently caught some.

That there are some racists, white and black, is tragic, but not news.

That a prosecutor tried unsuccessfully to send three young men to prison for decades on bogus charges for political purposes and was caught conspiring to conceal exculpatory evidence, rigging the identification procedure, making prejudicial public statements and generally trampling on ethical rules as well as the Constitutions of the United States and North Carolina is tragic AND news.

Mr. Michaels:

"While the future of both Nifong and his case have been the primary focus of the major media and Duke Three supporters, the manner in which Durham’s African-American community has been portrayed by the Duke Three defense team in its change of venue motion is also a source of concern.

"In that motion, which is filled with various factual distortions and key omissions, the defense alleges that the Durham community is so incensed and 'racially polarized' about the case, that not only couldn’t a 'fair trial' of the Duke Three be conducted, but the community would 'take action,' according to defense attorneys, against jurors who didn’t vote to convict.

"'There is an undeniable atmosphere in Durham where jurors of many different walks of life, for many different reasons, may fear the potential of action being taken against them in their community as a result of their verdict,' attorney Joseph Cheshire, who represents indicted player Dave Evans, told The Carolinian/Wilmington Journal newspapers exclusively. 'You cite race and the example of a black juror who votes to acquit; what about a white juror who votes to convict?'"

First, Mr. Cheshire is right about the fearful atmosphere, according to my Durham sources, white and black, but, unfortunately,  there's always someone who will deny anything. 

Second, the joint defense change of venue motion stated, rightly: "The Defendants are entitled to a Jury whose members have not formed preconceived opinions about these cases.  They are further entitled to a jury that can deliberate in a community in which significan toutside forces will not have an impact on its deliberations or its verdict.  In short, the Defendants are entitled not only to an impartial jury, but also to a process in which that Jury may deliberate freely without undue pressure from outside influences.  That Jury, and that process, no longer exists in [Durham] County."

Third, as Professor Joyner should tell Mr. Michaels (who is not a lawyer), any defendant is entitled to a fair trial, not just the possibility of a fair trial, and no county has a right to try a case unless the defendant will receive a fair trial.

Mr. Michaels:

"William V. Bell, mayor of Durham, was not pleased.

“'That’s a gross mischaracterization,' Mayor Bell told The Carolinian/Wilmington Journal newspapers, adding that the uppermost topics of concern he hears Durham citizens talking about are bread-and-butter issues like the cost of gas or public safety.

“'People talk about the case only when they hear the media talking about it. It’s not like it’s the number one topic I hear people talking about,' the Black mayor added.

“'I don’t have any question it, a fair trial can be held in Durham.'"

That's why mayors don't serve as judges!  Judges have to recognize unpopular truths instead of pretend that they don't exist.

Mr. Michaels: "Other Black leaders, including NC NAACP Pres. Dr. William Barber, echoed that sentiment, noting that public opinion, once red hot eight months ago, has cooled considerably now, with most people wanting the case to go to trial so that all of the evidence and sworn testimony can duly considered by a court of law once and for all."

That's why the head of the NC NAACP is not serving as a judge.

Mr. Michaels:

"That point of view doesn’t sit well with Duke Three supporters, however, who want the charges dropped now, and the case never heard."

This Duke three supporter does not want the case never heard.  He wants Judge Smith to hear a pre-trial motion motion to dismiss under the relevant North Carolina statute and then grant it.  Not every case is fit to be tried, even though, if it's not, many in the community will be fit to be tied.

Mr. Michaels:

"Criticism from across the country of the case, and particularly Nifong’s handling of it, has been brutal. But a lot of the online barbs have specifically targeted Durham, its Black community, and elected leadership like Mayor Bell. Critics, mostly from anywhere but Durham, have alleged that a huge coverup was underway, that Durham government was corrupt, and that Black leaders like Bell and the NAACP supported the prosecution and 'persecution' of the three white defendants."

That criticism has been justified.  Those who are not part of the solution are part of the problem.

Mr. Michaels: "Bell, who stands behind the Durham police Dept.’s investigation of the case, says not only are the wild allegations baseless, but he urged observers to 'consider the source,' namely critics who are miles away who truly know nothing about Durham, or its people."

Is that thinly veiled reverse racism?  How about considering the facts?

Mr. Michaels:

“'I don’t let stuff like that bother me,' the mayor said, recalling the extreme name-calling he endured over a decade ago when, as chair of the Durham County Commissioners, he engineered the merging of the Durham city and Durham county public school systems.

“'That issue got to be personal. I’m not involved in this. It’s not like it’s my case. I’ve been through much worse,' he assured. 'It doesn’t bother me.'"

That's Mayor Bell's problem.  The travesty of justice called the Duke case SHOULD bother him.

Ironically, Mr. Michaels sited Mayor Bell as a reason to believe in Mr. Nifong's case against the Duke Three.

I'd quote from it, but the article is no longer available at the Wilmington Journal website.

The gist of it was how could Mr. Nifong be a scoundrel annd Mayor Bell and other Durham leaders not realize it.

It was a good question.

Now that it is obvious that Mr. Nifong is a scoundrel, why didn't Mayor Bell and other Durham leaders realize it and do something months ago?

As to obliviousness, Duke English Professor Cathy N. Davidson of the infamous and generally unrepentant Group of 88 is pleading it now, since her op-ed praising herself for signing the statement issued by the Group of 88 created a firestorm.

Professor Davidson:

"I was an athlete myself and have no prejudice against athletes.  Unlike some,  I love being at a university with a great athletics program.  Do I think athletics has become big business?  Of course.  It has.   But, then, I feel that the brunt of that is mostly felt by the athletes themselves, many of whom have to juggle amazing practice and game or meet schedules along with their academics.  I, frankly, do not know how they do it and am filled with admiration.

"I am learning more and more about this every day.   Of course, when one signs an ad, one does not have any idea who else might sign it and signing something does not mean one agrees with all opinions expressed by others who sign.  I am greatly disturbed by some of the remarks I've now read by others.  I would not have said those.  I am happy to say we all have different views of this.

"I am glad the ad is still up somewhere because I want people to read it.  Many of the people who have written me have been told it says that the signers say in the ad that we believe the lacrosse players to be guilty.  I read and reread the ad before signing to make sure it did not say that.   As I have said, I wrote the ad because there were inadvertent secondary victims of this event---the black students on campus (and especially the black men) who were being treated as if they were criminals.  I have answered so many emails today that I'm not sure if I wrote to you about this, the students who had to wear ties and jackets (students!) to classes because they were being ID'd and because women students were terrified of them.  The media kept talking so much about the racially torn city of Durham that students on campus felt terrorized and the black Duke students paid the price.  That was the focus of the ad, not the lacrosse team, and, at the time, it seemed so clear that is what we were addressing.  I never imagined it would become a national rather than a student newspaper story or that it would or could be read in the other way.  As I reread it here, it still shocks me that it took on that other meaning, it was so far from my intentions and that of others I knew.

"It is clear there were others who felt otherwise.   I am thinking carefully about other ways I can make it clear that I believe scapegoating is always wrong.   As I may have mentioned in a previous email, that will be the subject of the next piece I write."

As an opponent of scapegoating, I look forward to Professor Davidson's next piece.

I wrote "Duke case: Can Professor Davidson learn?" in the hope that she could and would

Professor Davidson has conceded that she had much to learn and signed on to the statement out of concern for Duke's black students (more of Mr. Nifong's victims, if Professor Davidson is right about them). 

Professor Davidson's statement quoted above was her response to this email from a Duke Three supporter: "While I would agree that the rhetoric in the ad was less inflammatory than that in the larger media, I would have to point out to you that timing, and perceptions can be everything.  The references to 'March 13th' clearly link the perception of what is being talked about to the bigger problems that are allegedly addressed by the quotes in the ad.  What I find interesting is that these quotes are very inconsistent with press based statements of many other people familiar with the lacrosse team.  I would specifically reference the interview with Devon Sherwood [the black member of the 2005-2006 Duke University Men's Lacrosse Team wrongly targeted by Mr. Nifong and the Nifongistas for not supporting Ms. Mangum's ludicruous claims] (http://abcnews.go.com/GMA/LegalCenter/story?id=2617301&page=1) as well as other quoted comments from female friends and supporters of the team.  You may ask why I am so interested in this situation if I am not local and intimately connected.  I am a person who works every day with High School athletes.  As we don't have lacrosse here, I am more involved with football and wrestling.  For what it's worth, I am a team doctor, not a coach.  I played lacrosse in college.  I know what the social scene in college athletics is like.  It is not squeaky clean, but it also is not the cesspool that your ad would intimate that it is.  Have you ever attended a lacrosse function?  I think you would be surprised with the level of friendship and non vulgar comradery that prevails.  While you may find hiring a stripper absolutely repulsive, it is not illegal, and not even morally reprehensible if done on private property with private funds.  Personally, I'd rather watch game show re-runs on cable, but to each his own. Nobody coerced those women to agree to accept money for undressing in front of strangers, even though that is a thoroughly undignified thing to do.  Are there predators and racists on every college campus?  YOU BETCHA!!!, and that is a problem that sorely needs attention. But to leverage your political position by referencing a 'SOCIAL DISASTER' (what a prophetic label in retrospect) prior all the facts being out is equally reprehensible.  Had this ad been published after facts were in evidence that the alleged crimes actually occurred and that lacrosse players were either involved in the crimes or in covering them up, I would read it very differently.  What I would suggest to you is that your stock would rise significantly if you found yourself comfortable stating in the press that you are 'shocked and appalled' by the type of protest that I have brought to your attention (which I am actually very surprised you weren't aware of as it has been in the national media since prior to your ad).  It would also go a long way to reiterate what you have said regarding 'justice not scapegoating'.  I actually think the text of your second paragraph says quite a bit about your true feelings, which are more in line with the mainstream than many would think.  The problem is that you apparently have been blind to what the perception of many people is given the 'other protests' that have colored their perception of your 'listening statement'.  By the way, it is also often raked over the coals repeatedly that the ad copy was pulled from the Duke website rather abruptly in November when it became the focus of a blog posting.  It is still available from a cached website and is accessed frequently.  I had read it previously, but again my perception was strongly colored by the thought that surely you were aware of other protests, 'WANTED' posters with lacrosse team photos, and other inflammatory rhetoric.  Some of these may have occurred after your ad, but the lack of the 'Group of 88' speaking out specifically against them has led to the perception that they do not disapprove.  Please show the community (nation/world) differently if that is the case."

Initially, the Duke Three supporter had emailed Professor Davidson as follows:

"Professor Davidson,

"You wrote: 'Some people write out of real misery for their children, Duke students who are distraught that their friends may have been falsely accused and unfairly treated. They believe professors have sided against the lacrosse players, and they are outraged. If we had written what they suppose, we would deserve their anger. But we didn’t.” --N&O, 1/5/07 

" Let me refresh your memory as to some well established facts…   

“'To the students speaking individually and to the protesters making collective noise, thank you for not waiting and for making yourselves heard.” --Group of 88 statement, April 6

"AND WHAT EXACTLY WAS YOUR GROUP  THANKING THEM FOR SAYING??? 

"From stories in the press regarding the March 26th protests: 

'There is a sense that Duke students need to be protected from Durham, but rapes are happening off East Campus at the hands of Duke students,' said Manju Rajendran, an organizer of the event. 'We are here to break the silence around sexual assault and violence.'

'Signs read "You can't rape and run" and "It's Sunday morning, time to confess." The protesters left the signs on the front steps of the Buchanan Boulevard residence. The crowd yelled, "Where are their parents?" and called for the lacrosse team's head coach Mike Pressler to be fired. Some wanted the University to force the group to testify.' CSTV.com

"610 N. Buchanan Chants

"Handouts were passed around and the crowd chanted in unison to the beat of the drummers.

"'Who’s being Silent?
They’re being silent!
Whose protecting rapists?
They’re protecting rapist!
So, who are the rapists?
They must be the rapists!
Out of the house!
Out of the town!
We don’t want,
You around!' 

"The week of protests was off and running. It was great-intended theatre, mixed with warning to the Lacrosse captains living in the house, that there could be consequences far greater than any criminal proceedings. Most ominously, protesters carried this sign: [photo of protestors holding a red banner calling for "equal measure" for "them" and a blue banner reading "CASTRATE!" inserted in email]]

"Exactly how do you suggest those of us out here who are watching/listening interpret the above information.  Professor Davidson you need to be mindful of what it is that is on record…it could be embarrassing for you every time you open your mouth!!!  "Hoping you are having a wonderful New Year (yeah, right!!!)"

Professor Davidson pleaded obliviousness:

"The ad was directed to the protestors who are quoted in the ad, not the people you quote. The protests on campus that I witnessed---the open mikes set up to encourage exchange---were very valuable.  I learned about the ones below only much later.

"Until you sent me this photograph, I had not seen it.  I am shocked and appalled.  You may not believe it, but I will repeat what I have said many times, in many forums.  I want justice, not scapegoating.  I believe symbolic justice is tyranny.  If these young men did not commit crimes, they must be exonerated.  There were things that we were told happened in the house which may not have been crimes but are certainly not laudable behavior.  But that is a different manner.  No one should face serious charges for crimes they did not commit.  I have said that thousands of times since March 13 and, in other contexts, before.  I will always say that.   I read and reread the ad before I signed it.  It did not speak to the criminal allegations.  It clearly was read as if it did and I deeply regret that misreading." Three points:

(1) With all due respect to the Duke Three supporter who emailed Professor Davidson, I reject the notion that private property and private funds strip hiring strippers of its moral reprehensibility.

(2) Professor Davidson reminds me of Humpty Dumpty. "''When I use a word,' Humpty Dumpty said, in a rather scornful tone, 'it means just what I choose it to mean -- neither more nor less.' "'The question is,' said Alice, 'whether you can make words mean so many different things.' "'The question is,' said Humpty Dumpty, 'which is to be master -- that's all.'" Brooklyn College Professor Robert K.C. Johnson is right about Durham being "Wonderland."

(3) ESPN reported that the author of the Group of 88's outrageous ad, Wahneema Lubiano, was fully aware at the time that some would see the ad "as a stake through the collective heart of the lacrosse players," and given that race as opposed to rape played almost no role in the potbangers' protests, Professor Davidson's claim that the ad was designed to comfort black men on campus suggests that Professor Davidson has either a big obliviousness problem or a big credibility problem.  Had Professor Davidson pleaded negligence instead of continuing to deny any wrongdoing, concluding that she really was oblivious would have been easier.

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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