Duke Case: Rod Phelan’s Pass/Fail Test for the “88”
The “88” are the 88 members of the Duke University faculty known who became known as the Group of 88 after they posted the so-called “Listening Statement” or “Social Disaster” ad in The Duke Chronicle on April 6, 2006, when the members of the 2005-06 Duke University Men’s Lacrosse Team were generally (but falsely) believed to be group rapists or cover uppers for group rapists, based on the phony claims of ex-convict stripper Crystal Gail Mangum, the utterly unethical and incendiary public statements of Durham County, North Carolina District Attorney Michael B. Nifong and the reportage of a mainstream media that mostly treated the ludicruous story as legitimate, because it fit the leftist agenda so very nicely.
Rod Phelan is a senior partner in Baker Botts L.L.P., an international law firm with approximately 750 lawyers and a worldwide network of offices recognized for its creative approach to the legal and business issues facing its clients and perhaps best known now as the law firm of THE James Baker.
Excerpts from Mr. Phelan’s exceptionally impressive resume follow:
BA, Vanderbilt University, cum laude, 1970
JD, Duke University School of Law, cum laude, 1973; Order of the Coif; Editorial Board, Duke Law Journal
Fellow, American College of Trial Lawyers
Fellow, International Academy of Trial Lawyers
Associate, American Board of Trial Advocates
"Best Lawyers in America" – since 1997
Chambers USA Guide America's Leading Business Lawyers since 2004
Chambers Global The World's Leading Lawyers, 2004 through 2006
"Best Lawyers in Dallas" – D Magazine (every poll, beginning mid-90's)
"Texas Super Lawyer" – top 100 in Texas – Texas Monthly – 2005, 2006
One of 5 "Defenders" – "top business-defense lawyers in the D-FW metroplex" – profiled in Dallas Business Journal, June 2006.
Master, Higginbotham Inn of Court
Born and raised in a small town in southwestern Oklahoma, Mr. Phelan grew up driving tractors, fixing fences, and writing sports for the county newspaper. Since graduating from law school in 1973, he has been a Dallas trial lawyer.
Mr. Phelan concentrates on defense and knows how to win major cases.
Townes Telecommunications, Inc. v. Telephone & Data Systems, Inc.
Mr. Phelan represented Telephone & Data Systems (“TDS”), a holding company owning rural and cellular phone companies across the country, in a suit alleging breach of contract and fiduciary duty by TDS. The case was tried for two weeks to a state-court jury in Henderson, Texas. Plaintiff claimed $35 million in actual damages and $200 million in punitive damages, and demanded $70 million to settle before trial, $20 million during trial. The jury returned a defense verdict.
Life Insurance Systems of America v. Lotus Corp.
Mr. Phelan represented Lotus, the software company, in a breach of contract and DTPA case tried for six weeks to a Houston state-court jury. For a fee, Lotus developed software for the Plaintiff, which complained that Lotus did not finish the job. Plaintiff claimed $40 million in actual damages, which it sought to treble under the DTPA. The jury returned a defense verdict.
Mr. Phelan’s extensive litigation experience includes professional malpractice litigation on the defense side, for local and national accounting, law, engineering, and architectural firms.
On Thurday, January 11, 2007, at 12:16 PM, Mr. Phelan emailed the “88” as follows:
“Subject: It is time for another ad in the Chronicle
“To 88 members of the Duke faculty:
“I believe I have addressed this email to the 88 members of the Duke faculty who last April published a full-page ad in the Duke Chronicle that has come to be called the ‘Listening Statement.’ Since then, much has happened in the Duke lacrosse controversy. I'm sure you have followed it closely, so I won't try to summarize it.
“The purpose of this email is to suggest that the time is ripe and right for another full-page ad in the Chronicle, from the same 88 members of the faculty. I understand the presumption of my suggested text. Feel free, of course, to use your own words. But I am serious in asking you seriously to consider another ad, this one acknowledging that 3 Duke lacrosse players have been wrongly accused and are the victims of a grotesque misuse of our legal system - and more.
“A number of you have asserted that your April 2006 Listening Statement was not intended even to take sides in the ‘she said, everybody else said’ controversy, much less to suggest that the stripper's tales were true. (Can we call her that, since it is undisputed that stripping is one of her chosen professions? Identifying her by her job description also avoids having to switch from ‘alleged victim’ to something like ‘Crystal ___’ or ‘false accuser.’) Whatever your intentions and motivations in April, you must acknowledge that your Listening Statement was seen by many as a premature acceptance of the stripper's story and rejection of those of everyone else present; a rejection of the presumption of innocence; an endorsement of radical rants. Right or wrong, that is a widely held perception. Many have questioned whether, had the stripper been white and her targets black, you would have run such an ad; surely you all would agree that you would not have done so, because your ad, most of you say, was aimed at calling attention to white racism and elitism, not vice versa.
“You now have an opportunity - and some would say a duty - to demonstrate academic objectivity, to support your assertions that you were not taking sides then, and to take the right side now. The truth has become clear, and irresistible.
“Great harm has been done to 3 young men and their teammates. Having felt the sting of your collective pen, they deserve its balm. I respectfully ask you to run another ad in the Duke Chronicle carrying this message.
"To Three Falsely Accused Duke Lacrosse Players (and their teammates): We Are STILL Listening -- And The Truth Has Emerged"
Emerson said "the greatest homage one can pay to the truth is to use it." We do so now.
You have been wrongly accused.
The exculpatory evidence is overwhelming.
No evidence - only a lie, recently recanted - supports the charges against you.
Your accuser lied.
Many of her supporters - your critics - overreacted. They not only assumed wrongdoing, they stated or implied it - groundlessly and incorrectly.
You did not get the presumption of innocence to which you were entitled.
Your University did not fulfill the in loco parentis responsibility you were entitled to expect, but instead, apparently in reliance on false allegations and without anything resembling due process, took action against you and your teammates.
In the heat of a contested election and for months afterwards - until the truth, your innocence, and the groundlessness of the indictment became irresistible - the District Attorney maligned you and your teammates and misled the public and your lawyers.
You are innocent.
You have been grievously mistreated.
Duke, too, while having failed in its obligations to you and your teammates by joining those who accepted as true what was obviously a hoax, has been unfairly maligned. Applications and fund-raising are down. Cause and effect are clear.
But the University and its leadership - and, we daresay, its faculty - remain world class. These were tumultuous times, and any mistaken judgments were honest attempts to balance competing opinions, interests, and pressures, to do the right thing.
The students at this great university are good people, highly motivated, well intentioned - and young. They make youthful mistakes. But they do not deserve to be pilloried and insulted. Much less indicted for political gain and despite exculpatory evidence.
Responsibility for much of this tragedy must be laid at the feet of a woman who bore false witness against you with the support of a prosecutor who has been accused of crossing the line bounding his professional, moral, and legal obligations, then staying across it until all saw that the emperor wore no clothes.
The rest of the blame must be borne by those who believed an unbelievable tale, then allowed prejudice, not reason, to guide them.
We listened, as we said we would, and not just to the black students at Duke quoted in our ad last April. We listened also to the evidence.
We are convinced that you are innocent, as we all should have presumed all along. Had that presumption been honored and defended, you would have been spared the suffering you have endured.
We are with you.
We call on the public, the people of Durham, your fellow classmates, our fellow faculty members, and the Duke administration to join in demanding that the charges against you be dismissed.
And we welcome you back to Duke, a university we love, and one we hope you, too, can love yet again.
“I am a Duke law graduate. Our university, yours and mine, has been damaged by these tragic events. I respectfully ask you, for Duke and for the lacrosse players, to demonstrate that you are objective, clear-thinking, and fair-minded. You can do a lot of good. Suppose your son had been the lacrosse player picked on the third try by Crystal from pictures of only lacrosse players. Suppose your son had passed a DNA test and had iron-clad proof that he was not even there, and still was indicted. Suppose you learned that this DA knew when he got the indictment that Crystal was lying because she not only told contradictory tales controverted even by her colleague, but also said (1) her ‘attackers’ had ejaculated inside her body and (2) she had not had sex with anyone else for a week prior - but the DNA tests showed no matches from lacrosse players and multiple matches from other males. How would you feel - about the stripper, the DA, the administration that kicked your son out of school, and the Listening Statement?
“I hope this does not sound like another rant. It is easy to get over-exercised about this remarkable miscarriage of justice. I am proud of Duke. I expected far better from its faculty and administration. Please consider the ad I have proposed. I respectfully submit that you owe it to the Duke 3, to Duke, and to those whom we all wish would listen.
Mr. Phelan appears to be an optimistic. He thanked the “88” for “listening – and thinking.”
I do hope the “88” will sign on to an ad like or substantially like the ad Mr. Phelan suggested.
But with the Dowd family already having sued Duke University and “88er” Kim Curtis alleging punitive grading, Cathy Davidson have recently written an op-ed reiterating the ad and insisting that it has been misread, Houston Baker having written that disgusting “farm animal” email to the mother of one of the members of the 2005-2006 Duke University Men’s Lacrosse Team and a lawsuit or lawsuits against the “88” and Duke University looming, I am advising Mr. Phelan not to count on such an ad as he suggests ever coming from the “88.”
I expect there will be a follow up ad, in the shameful tradition of the first, with a large dollop of self-congratulation and a dash of self-pity.
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.