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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:  February 23, 2007
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Topic category:  Other/General

Duke Case: Don't Link Justice Thomas to Nifong, Professor Johnson

Robert K.C. Johnson, liberal, lifelong Democrat voter, Obama supporter, blogger extraordinaire and Brooklyn College history professor, has learned much from the Duke case as well as taught much.  But he has much more to learn, if he thinks of United States Supreme Court Justice Clarence Thomas as part of the problem that manifested itself in the deplorable political prosecution that became known as the Duke case and conservatives as unconcerned about protecting civil liberties.

Justice Thomas is a black Republican appointed by President George H. W. Bush to succeed Thurgood Marshall on the United States Supreme Court.  He won confirmation, bravely and barely, despite the worst efforts of the politically correct crowd to defeat his nomination and even demonize him, and has served since 1991.

An originalist, Justice Thomas has proven himself to be a man of principle who follows the law (as a judge is supposed to do) instead of perverting or creating it for his own purposes, respects his high office instead of abusing it and puts race aside for the sake of administering color-blind justice instead of shamelessly playing the race card and pathetically pandering to the promoters of political correctness.

If Justice Thomas had been the Durham County, North Carolina District Attorney instead of Michael B. Nifong last year, there would not have been a Duke case.  There were have been a thorough investigation.  There would NOT have been unwarranted indictments based on a selective presentation of evidence to grand jurors, concealment of exculpatory evidence, and misrepresentations to the court and opposing counsel.

Unfortunately for just about everyone, Mr. Nifong was no Justice Thomas.

Professor Johnson is neither black nor conservative and does not seem to be an admirer of Justice Thomas.  

Professor Johnson, July 3, 2004: "I wonder sometimes what former Missouri senator John Danforth, who repeatedly stated in public and private during the confirmation hearings that Thomas would be a moderate justice, thinks of the performance of his protege."

On July 11, 2006, Chris of the Outside Report blog posted a piece entitled "The Language of Lynching."

Chris:

"While I think the arguments surrounding the [Duke] case have been fair (for the most part), I have been bothered by some of the language choices of people writing about [Durham County, North Carolina District Attorney Michael B.] Nifong  and how he's handling the case. Jeff Taylor over at Reason compared the case to a low-tech lynching.  One conservative blogger also compared it to a lynching of the rich, white and privileged.... Unfortunately, KC Johnson legitimizes...by mentioning...with approval."

Professor Johnson retracted any approval in the first comment to Chris' post: "I agree completely on the use of the 'lynching' language.  I recall Clarence Thomas' claim from his confirmation hearings of a 'high-tech lynching" (my sense is that Taylor from Reason was playing off that statement).  Lynching, as you correctly point out, is lynching--a horrific episode from our past, and referencing it in any contemporary context trivializes it."

Justice Thomas (whose title Professor Johnson seems to habitually omit) trivialized lynching when he looked into the camera and declared that he was the victim of "a hi-tech lynching"?

I don't think so.

Chris also blasted New York Times columnist Nicholas D. Kristof for "his own ridiculous parallel, comparing the Duke lacrosse members to the Scottsboro boys of the 1930."

Interestingly, Professor Johnson chose to deftly defend Mr. Kristof: "I disagree on your critique of Kristof. To me, the Scottsboro Boys case symbolizes--to an extreme degree--the corruption of the legal process for race-based political motives.  That's what we've seen from Nifong as well."

In "Joyner's Jurisprudence," posted on February 22, 2007 at his Durham-in-Wonderland website, Professor Johnson invoked Justice Thomas, to associate him with hypocritical (black) North Carolina Central University Law Professor Irving Joyner.

Professor Johnson: "Based on his comments in the lacrosse case,...it appears that Joyner's personal preferences on criminal justice issues actually resemble the positions of not the national NAACP but of Clarence Thomas.  Some might think it a little...unusual...that it has taken around three decades as a lawyer for Joyner's vehement pro-prosecution standpoint to suddenly emerge."

Professor Johnson then proceeded to mention, as a "[f]or instance," "Mike Nifong's involvement in the April 4 lineup, when the district attorney, in his role as supervisor of the investigation, ordered Durham police to violate their own procedures and confine the lineup to suspects.

It should not be forgotten that Justice Thomas himself was the victim of false accusations made by a black woman in a failed attempt to stop his confirmation as an Associate Justice of the United States Supreme Court.

To be sure, the judicious Justice Thomas surely is not soft on crime, but "vehement," that is, intensely emotion, is not a fair characterization of his originalist jurisprudence.

Professor Johnson did not cite any evidence to support his charge that Justice Thomas allowed intense emotion to determine his decisions, and I am not aware of any.

Moreover, any insinuation that Justice Thomas would tolerate the scandalous tactics of Mr. Nifong is not to be believed, even when made by Professor Johnson.

As a sitting justice, Justice Thomas is an easy target for critics, especially since he is not in a position to rebut them the way they should be rebutted.

Ironically, Justice Thomas' own experience as a victim of false accusations by a (black)female opportunist backed by people with a political agenda put him in a better position to appreciate what has been done to members of the 2005-2006 Duke University Men's Lacrosse Team.

Also ironically and to his credit, like Justice Thomas, Professor Johnson has not behaved the way the politically correct crowd would have him behave, as Professor Johnson acknowledged in an interview that he gave to Chris Sprow, the editor of The Chicago Sports Review (CSR):

"CSR: So you started this first because of the Group of 88, not as a response to the media?

"Johnson: To me it was exclusively academic. If not for the Group of 88, I never would have commented on the issue. I was once part of a historians blog called ClioPatria, and one of the issues I'd long been concerned about is the pedagogical imbalance in the academy; the one-sidedness. When they made their statement condemning the players, it was just an incredible example of this, and of approaching the issue through a lens of a race-class gender."

In the same interview, Professor Johnson explained how politics had corrupted the criminal process:

'North Carolina is a weird state in that the prosecution has more power than customary, and in the case of Nifong, this was all occurring in a political environment… The Duke faculty's statements made Nifong's behavior seem justified. They strengthened him in the public, and it was hugely important. You'd think the faculty is supposed to stand up for justice, to caution, to invoke the McCarthy era, and believe in due process. And you have so few, like Duke Professor Jim Coleman, standing up for due process. (The Duke faculty) absolutely helped Nifong drag it as far is went."

To his credit, Professor Johnson admitted that the Duke case has proved to be enlightening for him:

"CSR You've stated that you're a Democrat. When you began the blogging, were you surprised by critics calling you a right-wing nut? Did that make you re-examine some 'right-wing nuts?'

"Oh, absolutely. You have to. It's odd. You see groups that you saw before as unabashedly positive, like the NAACP, act the way they have, and your thinking has to change. You say to yourself, if I'm a supposed right wing nut, then 90 percent of the people in this country are too. This didn't surprise me in some ways though. One of the issues I've really pushed is more attention to the history of the American state. Looking at that, you know there's a tendency among activist-left in the academy to just brand anyone who disagrees with them as a right wing-nut. It works, and it's hard for them to give up that stance. … Put it this way: before this case started I had never seen defending civil liberties as a right wing position."

It's a sad commentary on American education that a Brooklyn College history professor with a Harvard degree had been oblivious to the reality that conservatives defend civil liberties.

But....better late than never!

The good news is that Professor Johnson came to realize that The New York Times is not the Bible and the Left defies and denies the truth to promote its agenda:  

"CSR We all know race and class issues exist all over this country, but with the Duke case, do you sense that people just wanted a compelling case, or a symbol of a reality they wanted to believe in?

"They wanted the latter, both in the media and the academic contexts. I wasn't following the media as closely initially, but it was clear that there was a sensationalistic element to it. I used to think the New York Times was the Bible, but they were way off on this one. On the academic side, one of the most amazing things was a quote by Duke professor Thaviola Glympth. As the case (began to fall apart), she said 'Things are moving backwards.' Here you have a teacher at a school that wants some of her students convicted of rape because it advances her pedagogical interest. As for the journalists, it wasn't so much that they got the facts wrong, but it was the absolute moral certainty involved. We think of journalists as people-yeah they have their biases-but that they're at least interested in the facts, and if you're a reasonably responsible journalist, you'd want to appear non-biased."

Professor Johnson chose to believe that the liberal mainstream media was deceived by Mr. Nifong, instead of complicit with him:

 "CSR Was this a case that some in the media struggled with because it was never a sports case, and it was treated like one? And thus, shouldn't they be given the benefit of the doubt in some ways?

"This is one of the great mysteries of the case. Duff Wilson is a (NYT) sports reporter who'd been covering it, and when they finally put a news reporter on it, the coverage improved 180 degrees. There were things about this case like the medical evidence that are not a specialty of someone in sports. In the August story, which was the absolute worst for the Times, you could see that no forensic examiner would have ever behaved in this fashion, but a sports reporter would have no contacts in that realm and he didn't seem to see it. And they should have asked the legal people if Nifong's behavior was completely out of ordinary…it was a failure of the editorial process at the Times and by other national media. That you could have a small southern town's district attorney pull the wool over their eyes is incredible."

WAS it "a failure of the editorial process"in the liberal media, led by The New York Times, that continued for so many months, with "a small southern town's district attorney pull[ing] the wool over their eyes"?

Or willful blindness (or worse), first on the part of Mr. Nifong and then on the part of the media?

Was it sheer coincidence that the story of racism, sexism, elitism and violence told by Mr. Nifong fit the agenda of The New York Times perfectly and The Times just missed the facts and circumstances that shredded the credibility of false accuser Crystal Gail Mangum and supported the denials of the falsely accused Duke lacrosse players?

Liberal Professor Johnson obviously did not want to believe the worst about the liberal media, but he had become too familiar with the Duke case to excuse the coverage:

"CSR And are the machinations of a mass-media organization now more revealing?

"There was no internal corrective process at the Times from what I can see. And then they have a column by the public editor saying they have no problem with how it's been covered, and even if it blows up, as it has, they'll continue the process of coverage on the culture of a Duke lacrosse team! It's mind boggling. This is a case of how you don't report a major story … they seemed to have no familiarity with the legal process in North Carolina, and obviously it's hard to blame the sports editors for not knowing it all, and even news editors aren't going to know some of this information."

With academia, Professor Johnson was harsher: 

"CSR What have you learned about academia and higher education during this process?

"I'm a professor, and for me this has been the most depressing aspect of the entire affair. One of the things that I assumed across the board is that as professors we have strong opinions, but the assumption is that most people enter the profession because they like students, and they enjoy working with students. And with this, you can see the behavior of the Duke Arts and Sciences Department, where close to 100 professors were eager to forward their personal agendas on the backs of their own students. I can't think of another case in the history of American higher education where that can be said. Here you have a student's own professor cited in the case for a change of venue. Really, the absolute refusal of the Group of 88 or other players in this affair to apologize or tone down their behavior in any way, as if all of the facts are the same now as they were on March 29th, and to show no indication they've comprehended anything … it's depressing."

It sure is.

It's also depressing to receive an email from a person who "spent a lifetime in higher education" and is "too frightened to get involved [in the Duke case] for fear of reprisals."

Which takes me to a pre-Duke case U.S. News and World Report article, entitled "Class(room) Warriors," by respected conservative commentator John Leo, dated October 24, 2005, involving the cultural left persecuting...Professor Johnson!

"The cultural left has a new tool for enforcing political conformity in schools of education. It is called dispositions theory, and it was set forth five years ago by the National Council for Accreditation of Teacher Education: Future teachers should be judged by their 'knowledge, skills, and dispositions.' What are 'dispositions'? NCATE's prose made clear that they are the beliefs and attitudes that guide a teacher toward a moral stance. That sounds harmless enough, but it opened a door to reject teaching candidates on the basis of thoughts and beliefs. In 2002, NCATE said that an education school may require a commitment to social justice. William Damon, a professor of education at Stanford, wrote last month that education schools 'have been given unbounded power over what candidates may think and do, what they may believe and value.'

"NCATE vehemently denies that it is imposing groupthink, but the ed schools, essentially a liberal monoculture, use dispositions theory to require support for diversity and a culturally left agenda, including opposition to what the schools sometimes call 'institutional racism, classism, and heterosexism.' Predictably, some students concluded that thought control would make classroom dissent dangerous. A few students rebelled when a teacher at Brooklyn College School of Education showed Michael Moore's movie Fahrenheit 9/11 in class and dismissed 'white English' as 'the language of oppressors.' Five students filed written complaints and received no formal reply from the college. One was told to leave the school and take an equivalent course at a community college. Two of the complaining students were then accused of plagiarism and marked down one letter grade. The two were refused permission to bring a witness, a tape recorder, or a lawyer to meet with a dean to discuss the matter.

"K. C. Johnson, a history professor at the school who defended the dissenting students, became a target himself. After writing an article in Inside Higher Ed attacking dispositions theory as a form of mind control, Johnson faced a possible investigation by a faculty Integrity Committee. The Philadelphia-based Foundation for Individual Rights in Education entered the case on Johnson's behalf, accusing the college of viewpoint discrimination and a violation of academic freedom. FIRE is a national civil liberties group that does what the American Civil Liberties Union should be doing but usually won't. FIRE said: 'Brooklyn College must confirm that it tolerates dissent, that it is not conducting another secret investigation of one of its own professors.' FIRE says the college has 'disavowed any secret investigation.'"

Mr. Leo reported that Brooklyn College "backed down when FIRE went public," but without agreeing "to avoid using dispositions theory for apparently ideological purposes." 

In time, the step-by-step back down by the prosecution in the Duke case will be complete. But will the political and social environment conducive to a scandal like the prosecution of the Duke case (the prosecution was the scandal, there was no rape or sexual assault) continue?

If it does, it won't be Justice Thomas' fault.  He has set the right example and should not be insulted by being grouped with Mr. Nifong.

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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