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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 10, 2007
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Duke Case: Don't Stay, Mr. Brodhead. Resign Instead.

When it mattered most to the Duke Three and their fellow members of the 2005-2006 Duke University Men's Lacrosse Team, Duke University President Richard Brodhead, to them, all but said: "Drop dead!"

Winston Churchill said, "Courage is the first of human qualities because it is the quality that guarantees all others." Unfortunately, asDukeUniversity's leader,President Brodhead exhibited a complete lack of courage as events unfolded and abandoned the 2005-2006 Duke University Men's Lacrosse Team in front of an onslaught of false accusations and politically correct slander.

My "Duke President Brodhead: Undo Your Bonehead Blunder" piece," posted July 3, 2007, began:

"After (1) a North Carolina Central State student (Crystal Gail Magnum, the pathetic ex-convict stripper and ;escort' and patently unbelievable accuser in the Duke rape hoax) and (2) a North Carolina law school graduate who went into the Durham District Attorney's office, stayed there until he was appointed (NOT elected) District Attorney, and was about to lose a Democrat primary (and his job) the first time he faced voters (Mike Nifong) unless he suddenly endeared himself to Durham County, North Carolina's black Democrat voters teamed up (1) to try to destroy Duke's men's lacrosse team because her gig as a stripper was not as pleasant and lucrative as she had hoped and (2) to indict three members of the team (three being a much more manageable number than twenty) in the hope that a jury would convict them and a subsequent civil suit against them would be simple, successful and lucrative, the President of Duke University (Richard H. Brodhead) (1) genuflected at the altar of political correctness, (2) treated the accuser as credible and the District Attorney as fair, objective and professional instead of unfair, biased and political, (3) cancelled the Duke men's lacrosse team's season and (4) suspended the two indicted sophomores (the third indictee was fortunate enough to graduate before Crystal finally got around to making him no. 3)."

I further stated:

"When the gang rape accusation was made, Mr. Brodhead, as President of Duke University, needed to make a choice. He could invoke the presumption of innocence in the absence of clear and convincing evidence of guilt (and let the sophomores continue their expensive education) or he could presume they were guilty (and bar them from continuing their studies at Duke). So much for Duke's 'home field advantage.' Mr. Brodhead quickly chose to abandon three Duke student athletes (and their families and friends) and suspended the sophomores, sending the message that they were embarrassments to Duke and presumed even by Duke to be guilty.

"It turns out that EACH of the Duke Three has passed a polygraph examination with respect to the charges on which they were indicted. (I haven't seen a report that the accuser even took one, much less passed.)"

Nearly six months later, President Brodhead finally invited Reade Seligmann and Collin Finnerty to return to Duke! (A sure sign the end of the persecution posing as a legitimate criminal prosecution is near.)

Better late than never.

BUT, as I wrote in "Duke Case: Duke University Mitigating Damages," posted January 4, 2006: "After the North Carolina State Bar and the North Carolina Conference of District Attorneys each took action against Durham County, North Carolina District Attorney Michael B. Nifong at the end of 2006, Duke University's attorneys apparently convinced Duke University President Richard Brodhead that failing to lift the suspensions would result in a higher damage award if and when the wrongfully suspended duo do what they are entitled to do and sue!"

I wrote last July: "Having seriously and senselessly damaged the two sophomores by jumping to the conclusion that their indictments were well-founded instead of realizing that they were being wrongly hounded, Mr. Brodhead should reinstate them immediately. If he has any shame, he will do that. (Then he should resign, because he has done extraordinary damage to Duke University as well as to the Duke Three and Duke needs a responsible President.)

Reinstatement offered, resignation withheld.

President Brodhead is no more repentant and moved to resign that Durham County, North Carolina Michael B. Nifong, another prominent Durhamite loathe to acknowledge that he did great wrong.

Instead, President Brodhead separated himself from Mr. Nifong, finally, and just wrote the following to "Dear Members of the Duke Community":

"I write to greet you at the start of a new year. I also want to address some important developments that have taken place while the University was on break, and to offer some thoughts as we go forward.

"Last spring, this community became embroiled in a major controversy arising from a party held by members of the men's lacrosse team. It is universally acknowledged that the behavior at the party was inappropriate and unacceptable. Several factors came together to intensify the emotional response to this event. Though vehemently denied by team members, the accusations that resulted from the party raised deeply troubling questions about sexual violence and racial subjugation, issues of fundamental concern to any decent community. Passions were further intensified by a series of statements by the Durham District Attorney Mike Nifong that a rape had indeed taken place. Intense media coverage heightened these passions, promoting an air of instant certainty about rapidly changing 'facts.'

"In the confusion of this situation, the University's response was guided by two principles: that if true, the conduct that had been alleged was grave and should be taken very seriously, and that our students had to be presumed innocent until proven guilty through the legal process."

Suspending Reade Seligmann and Collin Finnerty sent the message that they were presumed to be guilty, not innocent!

When the accusations were made,President Brodhead,as the leader of Duke University, had a choice to make: tobelieve in the Duke University system, the admissions standards and the truth and honor of those members of the student body who are being accused, or deny any belief in Duke University's tradition of honor and excellence. Unfortunately,he chose to abandon the responsibilities of a leader ashe abandoned those who had committed to be members of the Duke community. These accused student athletes made that commitment to Duke University as did their parents. President Brodhead abandoned both students and parents.

President Brodhead:

"As perceptions of the story changed, the University continued to maintain the need for broad deference to the legal process. If this case has taught us anything, it is our need for a legal process based in fairness, the rule of evidence, and withholding judgment until the truth is established. In an interview with '60 Minutes' last fall, I noted that given the concerns that had been raised, when the case came before a judge and jury, Mr. Nifong's case would be on trial as much as the students would. But as that comment recognized, the road to a resolution necessarily involved going through legal process, not outside or around it."

You said the case was fit to be heard by a jury, President Brodhead.

UnderNorth Carolinalaw,the caseshould be dismissed instead.

President Brodhead:

"In mid-December, there were important developments as the legal process entered the courtroom. These included the revelation, in sworn testimony, that the district attorney had not shared with the indicted students potentially exculpatory evidence from the DNA tests."

The revelation was that the district attorney had conspired with the director (Dr. Brian Meehan) of the private laboratory (DNA Security) that the district attorney had selected to do more DNA testing after the state laboratory results did not implicate any white lacrosse player to conceal evidence showing that false accuser Crystal Gail Mangum's statement that she had not had sex with anyone for a week and then with her boyfriend was false in a least half a dozen ways.. Not that Mr. Nifong carelessly failed to turn over "potentially exculpatory evidence."

President Brodhead:

"Also, on December 22, the Friday afternoon before Christmas, the district attorney announced that he was dropping the rape charge because the accuser was no longer certain about her claim. After Christmas, the North Carolina State Bar announced that it had reviewed concerns about the district attorney's public statements and found grounds to file a formal complaint. Days later, the North Carolina Conference of District Attorneys also called on Mr. Nifong to recuse himself in this case." The Norrth Carolina State Bardid more than find grounds to file a formal complaint against Mr. Nifong; it filed a formal complaint against him that may result in his disbarment and removal from office.

The North Carolina Conference of District Attorneys called for recusal "[i]n light of all developments in the Duke Lacrosse cases, including the filing on December 28, 2006, of a formal State bar complaint against" Mr. Nifong.

President Brodhead:

"On December 22, I issued a statement saying that, given the certainty with which the district attorney made his public statements regarding the rape allegation, his decision to drop that charge must call into question the validity of the remaining charges. I added that the district attorney should now put this case in the hands of an independent party, who can restore confidence in the fairness of the process. That last phrase is, for me, the heart of the matter. We entrust our conflicts to the law to provide a path to a fair resolution. But to earn this faith from the public, those who work in the legal process must behave with elemental fairness and regard for the rights of those involved. We need and deserve for that faith to be restored."

A Duke University President too is obligated to "behave with elemental fairness and regard for the rights of those involved" and the Duke community members "need and deserve for [their] faith to be restored." Mr. Nifong should recuse himself if he will not dismiss the bogus charges still pending in the Duke case and resign; President Brodhead should just resign.

President Brodhead:

"In the wake of these new circumstances, I concluded upon the recommendation of Vice President Moneta that we should offer reinstatement to Collin Finnerty and Reade Seligmann so that they can return to Duke and resume their studies. (David Evans graduated last spring.) Interim suspension, the policy measure that had been invoked last April, is not a disciplinary measure or judgment of guilt. It is a temporary measure taken when a student is charged with a violent crime, and its use must balance a variety of factors, including the gravity of the charge, the presumption of innocence, the possibility of danger to the student or the community, and the need of students to continue with their education. Although the two students still face serious charges, in the changed circumstances, it seems only right to strike the balance at a different point. The fair thing is to allow the students to continue with their studies."

No sale, President Brodhead. The suspension signified guilt in the circumstances,even though there really was no credible evidence of guilt. False accuser Crystal Gail Magnum's ludicrous charges were treated as Gospel instead of guttural. Reade and Collin might have decided it was not safe for them to continue at Duke, butTHEY deserved to make the choice.

President Brodhead:

"We all pray that the legal matter will be resolved in a fair and speedy fashion. But as a university, we also need to look to the future and see how we can learn from this chapter of history. By facing the lessons of this painful episode, we can make Duke a better place. Let me outline a few specifics.

"First, we still have work to do on this campus. One thing that has made this event so difficult is that particular charges against individuals have tended to be conflated with larger community issues of race, gender, privilege, and respect. During these hard months, some have seemed to imply that if you insist on the students' innocence, then you must not care about the underlying issues. Others have seemed to suggest that if you insist on the underlying issues, then you must not care about fair treatment for the students.

"But it is essential that we separate the legal case from the larger cultural issues and give each its separate, appropriate response. The Campus Culture Initiative, begun last year and due to report this spring, is not a referendum on the party last March. It is an effort to visualize the best community we could make for students to grow and learn in, a community of mutual respect and vibrant mutual engagement. It will be all of our work to advance toward that goal. I see this as a chance to build on existing strengths in our educational experience and to press toward higher ambitions: the latest chapter in Duke's long history of self-improvement.

"Just as important, we must work together to restore the fabric of mutual respect. One of the things I have most regretted is the way students and faculty have felt themselves disparaged and their views caricatured in ongoing debates, often by individuals - sometimes anonymous - outside the Duke community. In the age of instantaneous worldwide media coverage, members of the lacrosse team were judged around the world on the basis of highly selective, highly prejudicial coverage last spring. A number of them were subjected to vile abuse. More recently, a group of Duke faculty members (including a number of African American faculty) have been widely attacked in blogs and emails - and in some cases personally attacked in highly repugnant and vicious terms - based on caricatured accounts of their statements on the lacrosse event.

"We want to see an end to these destructive assaults. We cannot change the nature of modern communications, but we can make an effort on this campus to promote more constructive dialogue and a more charitable atmosphere for exchange. This does not mean that troublesome issues should now be avoided. It's the mark of maturity in a university when hard issues can be freely and vigorously engaged, and this past year has shown us many areas in need of discussion and debate. But it does mean that we need to be less quick to take offense at the words of others, and work harder to understand what others are actually trying to say - even if we then disagree with it.

"In its very difficulty, this moment gives us a chance to strengthen the climate of respectful engagement in this community, and it is crucial that we come together to seize the chance. Turning conflict among divergent points of view into the basis for mutual education is at the core of the university's work.

"Last, in the heat of recent debates, there's been a danger that we will lose sight of something fundamental, and I want to say it on all of our behalf. This is a great university, one of the greatest in the world. The vigor, intelligence, and devotion of each member of this community - faculty, students, and staff - are what make Duke great. This place needs all of us. And all of us are incalculably lucky to be part of this place, and to have the others who surround us for partners and colleagues.

"Duke can and will become better yet, and it's our business to make it so. This is the season of the New Year - a time for new starts and fresh beginnings. Let's work together to make our university as great as it can be."

Three points:

(1) I pray all team members damaged by Duke University pursue their legal recourse against it and donors contribute their money wisely.

(2) Like Mr. Nifong, President Brodhead fancies himself not to be a problem, but to be part of the solution. They are either deluded or dishonest. Whichever, they should resign.

(3) Duke does not need "all of us,"especially not President Brodhead and any unrepentant members of the Group of 88.

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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Copyright 2007 by Michael J. Gaynor
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