Kathleen A. Bergin is an Associate Professor of Law at South Texas College of Law.† She lists constitutional law, critical race theory and women in the law as her areas of expertise and poses this question at the top of her biographical list: "Why is it that Fifth Avenue can dissect Harlem, but you won't find Malcolm X. Boulevard†anywhere near Midtown?"
†A contributor to the Yale Journal of Law and Feminism, Professor Bergin recently saw fit to attack media commentator Howard Kurtz for criticizing the media's initial rush to judgment in the Duke case.
†So now I'm defending Mr. Kurtz.† (What more wonders will the Duke case bring?)
†Professor Bergin posted a silly, but short, article entitled "Not Innocent" at the Feminist Law Professors blog.
†With the hope that Reade Seligmann, Collin Finnerty and David Evans (aka the Duke Three) would be found guilty of rape in the so-called Duke case gone and†the hope that at least one of them would be found guilty of kidnapping or sexual offense going, Professor Bergin came forward to try to distinguish not guilty and innocent.† (So much for the presumption of innocence! At least the feminuts are falling back.)
†Professor Bergin: "The disconnect between legal culpability and social responsibility simmers just below the surface of reporting on the Duke sex scandal."
†Duke sex scandal?
What does Professor Bergin mean by sex scandal?
If she means something other than hosting and/or watching a couple of strippers, where has she been?
†The scandals are false reports of first-degree felonies and prosecutorial abuse including an outrageous identification procedure, suppression of exculpatory evidence, misrepresentations to the court and defense counsel, prejudicial public statements and egregious misuse of†the Duke case for personal political purposes by desperate rookie district attorney.
†Professor Bergin: "In The Duke Assault Case: A Question of Race, CNNís January 16 special on Duke, co-hosts Paula Zahn and Howard Kurtz reminded viewers of the evidence that will be offered to exonerate the defendants if prosecutors take the case to trial: inconsistent victim statements regarding the number of assailants and nature of the assault; an alibi offered by one of the players that places him away from the scene of the crime; the lack of a DNA match to any of the players on the team."
That's some of the evidence, not "the evidence."
†And "victim statements," they were not.
†"For Kurtz, this evidence sealed the case against the 'accuser' whose racial identity he implied seduced reporters towards an interpretation of events that fit a familiar historical narrative - that of White men sexually exploiting Black women. Subsequent facts contradicted that script, and Kurtz offered these remarks†in defense of the real 'victims' marred by the scandal:
The Duke story was impossible for the media to ignore, but there was clearly a rush to judgment, which turned one womanís shaky allegations into a racially charged morality tale. By the time journalists woke up to the fact that there was little evidence against these three young men, their reputations had been blackened.
"Kurtzís pitiful attempt to demonize the victim in this case - and through her all Black women - obscures the significance of other facts conspicuously left out of CNNís broadcast...."
Characterizing false accuser Crystal Gail Mangum's allegations as "shaky" is a great understatement, not demonization.
Moreover, Mr. Kurtz did not suggest Ms. Mangum is representative of other women, black or white.
CNN did leave out Ms. Mangum's criminal, medical and employment histories.† Credible, Ms. Mangum is not.† Imagine what Professor Bergin would have said if CNN had presented the facts about Ms. Mangum's criminal record and prior claims to have been gang raped by three men and targeted by her ex-husband!†
And Ms. Mangum is not the victim she claimed to be.
These are the "facts" Professor Bergin claimed were "conspicuously" omitted:
"(1) that team members called the two women 'niggers' and 'bitches';"
My comment:† Where's the crime here? None of the Duke Three used that language.† Should they be convicted for having a teammate or a few teammates who used bad language? As a self-described constitutional expert, Professor Bergin needs to study the scope of constitutionally protected free expression and the concept of guilt by association again.
"(2) one threatened to rape them with a broomstick;"
My comment: Nonsense. A vile suggestion about using a broomstick as a sex toy during the "entertainment" was made, but no one made a threat to rape anyone with a broomstick, much less did it.
"(3) another spoke of hiring strippers in an e-mail sent the same night that threatened to kill 'the bitches' and cut off their skin while he ejaculated in his 'Duke-issued spandex';"
My comment: Either Professor Bergin is unfamiliar with "American Psycho" (which is studied at Duke) or she swallowed whole the misinformation about the email to team members.† Funny, it wasn't.† Funny, it was intended to be.† Serious, it wasn't.† Vulgar and stupid, it was.
"(4) one shouted to the victim as she left the teamís big house, 'Hey bitch, thank your grandpa for my nice cotton shirt.'"
My comment: It isn't a crime to have a teammate make such a remark..† Indeed, since the First Amendment protects noxious speech, the person who made the remark did not commit a crime.† And Ms. Mangum is a false accuser victimized by her own bad choices, not a victim of any of the Duke Three or any of their teammates.
Professor Bergin: "These facts are undisputed and highlight the sick and wretched depravity of this racialized episode."
My comment: Professor Bergin's "facts" are disputed (unlike Ms. Mangum's criminal record).† Her false charges were sick, wretched and depraved and they did racialize the episode, however.† Ironically, black strippers had not been ordered, but were accepted anyway.
Professor Bergin: "The parallels between present and past are simply too numerous to ignore in the perverted claim these pampered and privileged White elites laid to the body of a Black female sex-worker."
Wrong again!† Ms. Mangum was not requested and no one made a claim to her body, perverted or not.† Professor Bergin is pretending that there are parallels despite the actual facts.
Professor Bergin: "Yet if history is our guide, Kurtz is probably right - the evidence will ultimately stack against the 'accuser' in favor of the accused and culpable or not, these boys will be exonerated. If brought to trial, my bet is they will be found 'not guilty.' And yet, they are so far from 'innocent.'"
Neither attending nor hosting a stripper party is a crime, regardless of whether Professor Bergin (or I or anyone else) would prefer otherwise.† The new prosecutors probably will dismiss the remaining charges, saving the State of North Carolina the embarrassment and expense of a trial.† If not, the defense should make a pre-trial motion to dismiss under a North Carolina criminal procedure statute and Judge Osmond Smith should grant if.† If there is a trial, there are two possible results: a hung jury or an acquittal. When it comes to the first-degree felony charges brought against them, each of the Duke Three IS INNOCENT.
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.