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"And ye shall know the truth, and the truth shall make you free." - John 8:32
WEBCommentary Contributor
Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  February 16, 2007
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"A Different Duke Alleged Rape" Update

My St. Valentine's day article on the latest Duke alleged rape case did not inspire love across the board.

The News & Observer's Ruth Sheehan, who had written "Team's silence is sickening," graciously postedmy articleon her Metro Blog. (Whether Ruth will admit that she made a mistake in writing that powerful, painful article before Hillary Clinton says that her vote to authorize President Bush to take military action in Iraq was a mistake is a challenge for the odds makers.)

Both my Durham source's preference for anonymity and advice incensed some at Phi Beta Sigma.

Source said: "There is one MAJOR DETAIL that no news organization is disclosing about this latest rape case. I only know it because I was invited to the party.... The party where the rape occurred was thrown by the Phi Beta Sigma fraternity, an all black fraternity that only allows African-Americans to join and many of its members are indeed varsity athletes at Duke university. After the alleged lacrosse rape Nifong held a meeting at NC Central University where black student after black student stood up and essentially said, 'we all know that if the victim where white and the accused people were black athletes they would be in jail right now.' It is obvious that that is absolute garbage because now we have almost exactly that situation and NOBODY is even paying attention. It hardly makes the local news here in Durham, NC. There is a huge bias and double standard in the media and for media outlets to continue to say that black Americans are discriminated against is not just untrue but completely hypocritical."

On the major detail, Source was substantially, if not completely, correct: the accuser described her alleged attacker as black and the media avoided it like the plague. If you count The Duke Chronicle as a news organization (and it beats The New York Times easily when it comes to Duke alleged rape case), then Source exaggerated a bit.

Mary Katharine Ham, in "A Tale of two Rapes in Durham," put it more precisely: "The mainstream media has bent over backward to keep race out of this. Even those who first gave a description of the alleged rapist as a 'black man' later redacted that from their reports. The News & Observer never printed it at all."

Worse, The News & Observer deliberately deleted that fact in the editing process!

Ms. Ham:

"The News & Observer's omission of race is laughable:

The man is described as being in his late teens or early 20s, about 6-foot-1 and wearing a black do-rag, a gray sweatshirt and blue jeans, according to a police news release.

"Why laughable? Because the same story appeared in the Charlotte Observer, written by the same reporter, with 'black' included, since it was part of the original police report. It was clearly removed in the Raleigh edition:

Police had not charged anyone late Sunday in connection with the allegations but released a description of a suspect: a black male, in his late teens or early 20s, about 6-feet-1-inch tall and wearing a black do-rag, a gray sweat shirt and blue jeans, according to the news release.

Whether it is laughable is debatable.

Given the pain caused by the way the media handled Duke Case One (aka the Hoax), I prefer ludicrous.

What is not debatable is that The News & Observer called the strippers involved in the Hoax dancers and described them as black back in March of 2006, but dropped an important detail that would help the public help the police in finding the alleged culprit in Duke Case Two: the color of the alleged culprit.

I too abhor treating driving while black as a crime, but The News & Observer took opposition to racial profiling way too far. When the police specify the color of a person being sought, the newspapers should not decide it is not newsworthy.

What is laudable (I am a lawyer who believes innocent people need legal services too and point to the Hoax as a prime example) is that the members of the African-American fraternity that hosted the party at which a rape allegedly occurred in a bathroom have legal advice.

I received this email confirming that the fraternity members have legal counsel:

"Mr. Gaynor, my name is Courtney Fauntleroy and I am a Charter member of the Duke University chapter of Phi Beta Sigma Fraternity, Inc. Iam writing to correct a few errors that

I read in your online article.

"FirsttheBrothers in the chapter are being advised by counsel, but they are cooperating with the Durham Police and Duke University Officials.

"SecondPhi Beta Sigma Fraternity does allow and has many members of all races. We do not discriminate on the basis of race interms of membership.

"Third none of the current members of the Chapter are athletes at Duke, your confidential source is in error.

"If you have any questions I can be reached at (919) 824-9911. I am a graduate of Duke University in 1995 and Duke Law School in 2001.

"Sincerely

"Courtney Fauntleroy, Attorney at Law
2310 S. Miami Blvd., Suite 132
Durham, N.C. 27703"

Hopefully, no Duke official told a fraternity member not to phone home or speak to a lawyer this time.

Hopefully, Duke University will not reflexively suspend the fraternity on account of the alleged rape at a fraternity party.

Hopefully, the cooperative brothers will do what the co-captains of the 2005-2006 Duke University Men's Lacrosse Team did: identity party attendees and volunteer to take a polygraph test.

THAT's cooperative!

Ms. Ham went further than Source and stated "none [of the mainstream media] has pointed out, as the Duke Chronicle has done, that the alleged victim was white, making this a mirror image of the Duke lacrosse case."

But, rather than that, what most of my emailers chose to focus on was Source's claim that Phi Beta Sigmais "an all black fraternity that only allows African-Americans to join and many of its members are indeed varsity athletes at Duke university."

It seems clear to me that Source was referring to what Source considered to be reality (as distinguished from official rules) with respect to the Duke chapter of the fraternity and I have been assured by several that even though there are no current white and Hispanic undergraduate members, a Hispanic graduated in 2006 and racial discrimination does not rear its ugly head in recruiting members. Whether Source is, or the reassurers are, right, I am not in a position to judge.

Jason Alston: "[A] Hispanic member named Alejandro Torres Hernandez was a member of the Duke chapter before graduating in 2006. Your source, who I'm assuming is a Duke student or alumnus, can look him up on facebook. The fact that Duke's chapter doesn't have any white members is not the fault of the chapter any more than it is the university's fault that their golf team is all white; I blame both on lack of interest from qualified candidates (my experience leads me to believe that white students are generallymore comfortable with other white students and therefore are more apt to join historically white fraternities)."

Mr. Alston is a Sigma brother who wrote to tell me that Source

"is inaccurate when stating:

'The party where the rape occurred was thrown by the Phi Beta Sigma fraternity, an all black fraternity that only allows African-Americans to join and many of its members are indeed varsity athletes at Duke university.'

"None of the nine historically black Greek organizations in the National Pan-Hellenic Council are allowed to discriminate based on race, nor do any of them desire to. Of the five historicallyblack fraternities in the NPHC (there are four sororities as well), Phi Beta Sigma is believed to have the largest amount of white members. My graduate chapter of Phi Beta Sigma (the Delta Zeta Sigma chapter of Durham, NC) invites this source of yours to contact us so that we may discuss his or her misconceptions about the fraternity; give him or her my email address.

"One of our most prominent members, conservative columnist Armstrong Williams, a contributor to Townhall.com, would probably also like to discuss this accusation with your source. As a Renew America columnist, I'm sure you are familiar with Armstrong and know he would not affiliate himself with a fraternity that discriminates against non-blacks. Also, while the Duke chapter (Alpha Alpha Chi) has had mostly black membership (due to lack of interest among non-blacks in joining, not due to discrimination), it did graduate a hispanic member named Alejandro Torres Hernandez last year.

"Iwould also like to point out that many of the brothers at Duke's chapter, and in the fraternity in general, are NOT athletes. I'm the least athletic person on this earth. You may follow this link to see who some of the more notable members are: http://www.pbs1914.org/sigmatoday/notablesigmas.asp

"The attacker is NOT a member of the fraternity and there is no report that the suspect is even an athlete or a student, so your source's assertion that this event is almost the exact situation that was proposed by the NC Central student is alsoincorrect. The Duke student paper even writes that there is speculation that he doesn't attend Duke; read: http://media.www.dukechronicle.com/media/storage/paper884/news/2007/02/13/News/OffEast.Rape.Investigation.Continues-2716034.shtml

"Fraternity parties are frequently attended by non-students.

"Most of the time when I email columnists, they don't even bother to read what I say. I hope you are different because the slander that your source commits against us is upsetting. I am not upset with you though as we've all been misled at some point in our lives.

"Be blessed,"

I replied to Mr. Alston, making the following points: (1) I took it from his unqualified use of the word "attacker" that he had reasontobelieve that there really was an attack and there really is a victim and not a person hallucinating or lying.

(2) Given his assurance that Attacker "is NOT a member of the fraternity," I urged him to identify Attacker if possible and then Attacker's affiliations or lack of affiliations can be determined.

(3) Whether or not "this event is almost the exact situation that was proposed by the NC Central student" (aka false accuser Crystal Gail Mangum) is a matter of opinion.An alleged rape in a bathroom during an off-campus party held by Duke students is strikingly similar. If there really was an attack this time, that would be a huge difference. If Nifong does not become lead investigator and the identification guidelines are followed, those would be big differences too.

(4) I hope someone at the party identifies the alleged attacker.

(5) If the alleged victim takes and passes a polygraph test, then I'll findher story much more credible.

(6) I protect sources, of course.

(7) Duke Case Two is being handled very differently than Duke Case One.

In addition, I asked Mr. Alston if he disputed that "[a]fterthe alleged lacrosse rape Nifong held a meeting at NC Central University where black student after black student stood up and essentially said, 'we all know that if the victim where white and the accused people were black athletes they would be in jail right now.'"

Finally,I noted that myarticle did not mention that color of the accuser, but I'm told the accuser is white and asked Mr. Alston what he had to say about that.

Mr. Alston replied that Source should be a sport and "contact us and tell us why he believes Sigma discriminates based on race because that misconception needs to be addressed," but indicated that he would not otherwise respond unless instructed to do so: "I'll respond to the other elements of this email if the graduate chapterwishes forme to but if your source isasclosed-mindedas he comes across then there's no need to bother.For him to call us out with such a hurtful accusation and not want to discuss with us where he got that from isn't very sporting."

Another Duke student wrote as follows:

"I attend Duke, and from what the Duke newspaper reported, it said that the alleged attacker was black and that the party was hosted by Phi Beta Sigma. The fact that national media or local media did not pick this story up is a different question.

"I would also like to inform you that Phi Beta Sigma does have members who are not black. Before you listen to unnamed sources, you should ask the organization itself. The link that is given is from the national website, talking about a white member.

"http://www.pbs1914.org/archivedspotlights/MarkPacich0420051.asp

"I hope you are more interested in the truth than false statements."

The truth appears to be that (1) Source's main point is essentially correct; (2) The Duke Chronicle did a much better job of reporting than the mainstream media; (3) Sigma does not have white undergraduate members now; (4) Duke's golf team does not have black members now; (5) the absence of people from each race is not necessarily the result of discrimination; and (6) Sigma's Mr. Alston seems more interested in identifying Source than dealing withdifficult issues.

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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