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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 24, 2007
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Duke Case: Unlike the 88, Will Professor Johnson Apologize?

Brooklyn College History Professor Robert K.C. 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 find it a little . . . unusual . . . that it has taken around three decades as a lawyer for Joyner’s vehement pro-prosecution standpoint to suddenly emerge.

"For instance, Joyner aggressively defended 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...." 

Pointing out the blatant hypocrisy of North Carolina Central University Law Professor Irving Joyner is a sensible, if simple, public service, but any suggesting that United States Supreme Court Associate Justice Clarence Thomas or his originalist jurisprudence is responsible in any way for the persecution of the Duke Three by a rogue prosecutor who shamelessly played the race card is unfair and unhelpful.

Pam Spaulding, Duke University Press/Canada Free Press:

"We've all seen how collectively stingy Duke University staff can be with apologies. Remember the ad the lynch mob -- er -- faculty hastily took out condemning the Duke Lacrosse team members accused of rape? They rendered judgment before the ink was dry on the arrest warrant but arrogantly refused to apologize even after it became abundantly clear that the accused would likely be exonerated.

"Still, if Duke's stubborn liberal pride won't allow them to apologize for enabling, if not endorsing, Spaulding's hateful screeds, then at the very least Duke University President Richard H. Brodhead will surely denounce the threat made to LaBarbera's life on the very blog of which Duke is so proud...."

"[S]tubborn liberal pride" can be a pesky thing.

Many commenters on Professor Johnson's Durham-in-Wonderland website were amazed and/or affronted by Professor Johnson's remarks involving Justice Thomas

"Insufficiently Sensitive," after describing the quoted statement as "amazing":

"Please elaborate. Is there a clear preponderance in the records of Clarence Thomas's bias in favor of prosecutors? Or against people of color? Why drag Judge Thomas into this particular case?

"Color me perplexed. When I've read statements and opinions by Judge Thomas, they don't seem to reflect a lack of reasoned argument based on the facts.

"I suppose the contrary might be shown, if the protagonist can muster and present the evidence."

I am not aware that "the protagonist" (or anyone else) has presented such evidence.  I suspect that such evidence would be like the evidence of guilt of the Duke Three on first-degree felony charges: imaginary or bogus.

Professor Johnson's reply:

"On the Court, Thomas has taken a very strongly pro-prosecution bent in most criminal justice rulings, and the national NAACP has been strongly critical of his jurisprudence in part for that reason.

"But, it seems, based on Joyner's arguments, the NAACP doesn't see anything wrong with pro-prosecution jurisprudence when the prosecutor was doing what the group wanted."

Now that's true! 

Notably, the Professor did not repeat his prior insinuation that Justice Thomas was "vehement" (as distinguished from judicious) and did not muster and present any evidence.

Anonymous commenter:

"'Based on his comments in the lacrosse case, however, it appears that Joyner’s personal preferences on criminal justice issues actually resemble the positions of not the national NAACP but of Clarence Thomas.'

"Is KC Johnson engaging in another 'high tech lynching?'

"The quoted comment is especially bewildering given that we know little or nothing about Clarence Thomas' 'personal preferences' on criminal justice matters. Or is the fact that they are both black enough to equate Joyner's comments with Thomas' judicial opinions.

"If this is the only parallel KC can draw, he either needs to get out more, or take a brief break from writing to think things through more carefully."

It might have been tempting to use Justice Thomas as a "bete noire," but it was a temptation that should have been resisted.

Another anonymous poster posed this question to the Professor: "Are Thomas's judicial rulings his 'personal preferences' or are they reflective of the facts in the cases he is opining on?"

No answer to that question has been posted.

James Conrad offered an explanation: "i think what KC is saying is, Justice Thomas is consistent with his positions and Joyner's positions are not"

But the Professor had not complimented Justice Thomas on his consistency and instead had described him as "vehement" instead of "very strong" and used him as the symbol of anti-black (instead of colorblind) jurisprudence.

Another anonymous commenter was on target and terse:

"'Joyner’s personal preferences on criminal justice issues actually resemble the positions of not the national NAACP but of Clarence Thomas.'

"Very unfortunate comment."

James Conrad agreed.

Dr. Bill Anderson tried to fathom Professor Johnson's intent and fix things by pointing out that Justice Thomas has been the victim of vicious attacks and opining that in the Duke case Professor Joyner "has been even more pro-prosecution than Thomas ever would have been":

"The point of K.C.'s comment is that Thomas often has been pro-prosecution in his rulings. There are some things that Thomas has done that I appreciate, and the vicious attacks he receives from organizations like the NAACP are unwarranted, I believe.

"However, one of the reasons that the NAACP has attacked Thomas (other than he is a black Republican, which is the same as treason to them) is that he often has given the police and prosecutors more leeway than they (NAACP leaders) believe should be the case. For example, Thomas recently voted with the majority in the decision to uphold the no-knock police raids. Radley Balko of Reason Magazine, a writer who I think is familiar to many DIW readers, has written of the real tragedies that have resulted because of these raids.

"Yet, in this case, Joyner has been even more pro-prosecution than Thomas ever would have been. Thomas is perceived as giving the prosecutorial/police side too much discretion, while Joyner consistently has been a critic of such police powers.

"But, as we have seen, Joyner now supports actions by police that I would bet that Thomas would not support. In other words, Joyner has been willing to out-Thomas Clarence Thomas when it comes to this case. There is no prosecutorial misconduct that is too outrageous for Joyner, and he suddenly is willing to support procedures that he never would support if the races were reversed.

"All K.C. is asking is that Joyner be consistent in how he approaches the law. Instead, Joyner has taken a pure race-based approach. Because he has done that, Joyner loses any moral and legal authority he might have had."

Notably, Dr. Anderson disagreed with Justice Thomas without disrespecting him and acknowledged that the actual problem was Professor Joyner's "pure race-bashed approach," not Justice Thomas' colorblind approach to criminal law.  

Another anonymous commenter sympathized with Professor Johnson, but concluded that he had not been clear and recalled the Anita Hill episode that threatened Justice Thomas' confirmation:

"Thomas comment. Tough crowd, but the comment could have used some clarification.

"Wasn't Judge Thomas almost railroaded in harassment charges in his confirmation, What was her name? What is she doing now? Did the NAACP et al take care of her?

"Back in the day, we'd laugh about the pubic hair on the alleged soda can comment. One of our cooks in college, Ruby, didn't wear a hair net and one would sometimes find one of her hairs in our food. Of course they looked similar to pubic hair and became called 'Ruby's'. Hair nets are way underrated...Were it not for cheap beer, I would have lost weight in college."

Yet another admiring anonymous commenter was so disappointed as to call for the Professor to do what the Group of 88 won't: apologize::

"I was deeply saddened to read your seemingly throw-away reference to Justice Clarence Thomas in characterizing Joyner's current perspective on prosecutorial actions. I've loved reading your blog over the past months and you seem to be a straight shooter. In that regard, I feel you owe Justice Thomas an apology or, in the alternative, your readers a complete cite of cases where the type of conduct engaged in by Nifong meets with Justice Thomas' approval from a constitutional basis."

In those are the only choices, an apology should be forthcoming. Justice Thomas is an honorable person and no honorable person approves of Nifong's egregious misconduct. 

The next anonymous commenter asked the obvious question: "Where is the evidence that Clarence Thomas supports prosecutorial misconduct?"

 None was offered, and It then got worse.

"The comment comparing Clarence Thomas to Joyner is amazing. KC lost my respect in that. There is no truth whatsoever in that. Maybe KC hates him because he is a black conservative who does not believe that the constitution is a living document. I see absolutely no reason to drag Thomas to this mess."

"You got that right. Ugh-dirty."

Dr. Anderson tried again:

"Again, I have mixed feelings about Clarence Thomas. On some things, he is very good. For example, he did not go with the court majority in the Kelo case, where the court's 'liberal' wing said it is just fine for governments to seize private property for whatever reason they may want to do so. That was a tyrannical decision, and Thomas went in what I believe to be the correct way. (One can make a federalism case in Kelo, but since the majority did not go that route, all I can say is that the majority was making the claim that all of our property ultimately belongs to the state.)

"However, on some police/prosecution cases, Thomas is more likely to go with the side of the government. He hardly is alone. The Fourth Circuit Court of Appeals, for example, is considered 'conservative' and is notoriously pro-government. I had a friend who was railroaded into federal prison and the Fourth Circuit's decision in upholding his conviction was simply laughable, something out of the mind of Michael B. Nifong himself.

"For example, as I stated before, I wish Thomas and the other conservatives had been more willing to look carefully at what is happening in law enforcement, as no-knock raids are proliferating, and police forces become increasingly militarized. There are consequences to this, and I wish that Thomas were more willing to examine the trends and be more critical of them.

"Ironically, I suspect that Thomas would be on 'our' side in this case, and such an opinion would no doubt bring down the ire of the NAACP and the Julian Bonds upon him. Notice that Cash Michaels writes that anyone who believes that Reade, Collin, and Dave are innocent are de facto racists, so I doubt the NAACP would cut Thomas any slack."

The suspicion makes sense to me, Dr. Anderson!

At last, an anonymous commenter supported Professor Johnson: "The Clarence Thomas comment is right on the money. Like Joyner, Thomas is nothing but a hack who has risen far beyond his capabilities."

Another anonymous poster quickly rebutted that calumny with facts:

"Clarence Thomas attended Conception Seminary and received an A.B., cum laude, from Holy Cross College, and a J.D. from Yale Law School in 1974.

"The notion that he is a 'hack who has risen far beyond his capabilities' is utterly silly.

"The notion that he supports prosecutorial misconduct is despicably dishonest."

Another anonymous commenter chided Dr. Anderson:

"Ironically, I suspect that Thomas would be on 'our' side in this case

"What's ironical about that?

"Any sane person, certainly Thomas, would be on our side.

"Liberal wing on the supreme court would quite likely side with the democratic party establishment (NAACP, ACLU, Nifongs, Black Panthers ..) in this case."

I share the commenter's confidence in Justice Thomas, but doubt that the Supreme Court's liberal wing would "side with the democratic party establishment" in the Duke case.  The Durham Democratic Party establishment may be determined to stand by Nifong, but the district attorneys in the rest of North Carolina's 100 counties have sent a message that they disapprove of how Mr. Nifong handled the Duke case and even North Carolina Governor Easley finally has signaled that the appointment of Mr. Nifong as Durham District Attorney was a huge mistake.  I do not believe that even one of the liberal United States Supreme Court Justice would condone Mr. Nifong's conduct in the Duke case.

An anonymous commenter saw Justice Thomas as victim, not villain: "Justice Thomas is another example of the NAACP's prejudice and intolerance. It has viciously attacked him merely because he is a conservative . It is important for purposes of funding and power that the black bloc vote for liberals be maintained at the cost of truth. Consider school choice. Black parents are for it; black congressmen (many of whom send their kids to exclusive private schools in the D.C. area) are against it. Growing numbers of young black male voters are voting conservative. This frightens the black leaders enormously---as it threatens their spoils system courtesy of liberal politicians."

Justice Thomas and people who think like him do not favor framing people like the Duke Three on bogus charges to promote personal interests and political agendas.

The next anonymous commenter summarizes the situation succinctly: "KJ's attack on Thomas is truly bizarre diversion on otherwise great work."

Another anonymous commenter suggested that Professor Johnson had jeopardized the Obama campaign:

"I read this blog daily but I am rarely ever moved to comment. However, the reference to Justice Thomas out of literally nowhere really surprised me.

"KC is treading dangerous territory here. Just as the Edwards campaign is now associated with the lunatic rantings of Amanda Marcotte, KC is risking similarly associating Obama's campaign with his comments here."

Maybe there is a silver lining to the black cloud that was Professor Johnson's insertion of Justice Thomas into his post on Professor Joyner's jurisprudence!  (Just joking.  Professor Johnson's untoward remarks about Justice Thomas is not comparable to Ms. Marcotte's vile, vicious anti-Catholic and anti-Duke lacrosse players remarks.)

Two anonymous posters gave Professor Johnson the kind of support he did not need:

"Clarence Thomas is a case study in affirmative action run amok."

"Great work, KC. It's especially rewarding to see the right-wing nuts turn on you so swiftly once you dared to speak ill of a wingnut icon like Thomas."

 The next anonymous commenter then asked an excellent question: Where's Obama?:

"Since KC's reference to Justice Thomas seems to suggest that the Duke LAX case is a litmus test for bona fide 'liberals' lets ask Barack Obama what he thinks.

"Does Obama think the FA deserves her day in court? Does he think this case must go to trial?

"KC should stick to the known facts and not wander off into politics because the blowback will be immense."

I think all presidential aspirants should be asked about the Duke case.

 "Insufficiently Sensitive" returned to express sensitivity to the situation into which Professor Johnson had written himself:

"Enough with slagging KC for his Clarence Thomas reference. He explained it well enough in his 12:51 response.

"Again, Thomas writes reasoned decisions based on evidence - unlike certain minions of the 'justice' departments of Durham NC, or certain other advocacy groups there."

But Professor Johnson did not revise his post and his explanation did not support his remarks about Justice Thomas.

Another anonymous commenter apparently recognized that and called upon Professor Johnson to do more:

"KC, please cite references backing up your assertion that Clarence Thomas would  approve or sanction: a prosecutor making pre-arrest prejudicial statements, withholding of exculpatory evidence, railroading a grand jury with misleading 'evidence', taking over a police investigation and 'misdirecting' it, and so on? Where is the link between 'siding with the prosecution' and prosecutorial abuse ? Where is the proof that he aids and abets criminal behavior by the State?

"The fact is, in truth, in reality, it is LIBERAL organizations and advocacy groups that have supported the D.A. in this case, and it is the mainstream media that has enabled this farce to continue, and it is CONSERVATIVES, to a much larger degree, that have supported the TRUTH, at least in this particular instance... So let's keep Justice Thomas out of it, shall we?"

Well said.  Unless Justice Thomas is to be cited as a proponent of colorblind justice, in contrast to the likes of Professor Joyner, mentioning him is a mistake and misdescribing his thoughtful jurisprudence as "vehement" compounds the mistake.

A Justice Thomas admirer anonymously commented:

"Clarence Thomas is a case study in affirmative action run amok.

"This statement is pure sophistry.

"Clarence Thomas is the greatest example of what affirmative action was originally intended to be (before it became a quota system), a program that seeks out QUALIFIED minorities for admission into elite universities. His test scores were extraordinarily high, he did NOT get in to Holy Cross or Yale as a result of lowered standards."

Another anonymous commenter pointed out that conservative were not turning on Professor Johnson:

"It's especially rewarding to see the right-wing nuts turn on you so swiftly once you dared to speak ill of a wingnut icon like Thomas.

"LOL Aside from disputing a single statement, how exactly have these 'right-wing nuts' turned on KC?

"And how empty is your life that you find it 'rewarding' to see conservatives defend Justice Thomas?"

Another anonymous commenter summed it up:

"Thomas voted for the no-knock provision, but where is the proof that he sanctions prosecutorial abuse and criminality? Where are the cases where he would employ the level of sophistry and insincerity that Joyner did ?...

"Lets face it, bringing Thomas's name up like that was a cheap shot. (overall, just a small nit on otherwise great work by KC)"

A (liberal) anonymous commenter did not accept the cheap shot classification and insisted Justice Thomas was the black of choice to juxtapose:

"For goodness' sakes: Clarence Thomas, bete noire of the NAACP, is a black who makes preponderantly conservative legal decisions. Joyner is a black whose preferences and opinions have always, in the past, been quite the opposite of that.

"Joyner has now cynically undergone a temporary conversion to whatever 'conservative' interpretations of evidence-gathering, etc. he can dream up in this case, because he believes such interpretations will help railroad the LAX players. (Of course, he will abominate any such views as soon as a case with a black accused comes up, but for now, in this case, he's 'conservative' -- well, actually, he sounds Nazi: but he thinks it's conservative. Actually, it'd be an amazing coincidence if Joyner came up with an opinion that Thomas would hold, because Joyner is stupid -- but he's trying.)

I"n a general way, Joyner begins to sound more like a dime-store Clarence Thomas, than an Al McShurely (who is already dime-store).

"My right-wing friends, if you were searching for an example of a black legal mind that was the opposite of Joyner's -- to show the breathtaking falsity of Joyner's sudden conversion -- wouldn't you pick Clarence Thomas?"

I would pick Justice Thomas to contrast with Professor Joyner, since the former is  principled and the latter is hypocritical.  But I'd be crystal clear that Justice Thomas' jurisprudence is thoughtful and colorblind, not vehement and color-based, and that Mr. Nifong and his dwindling band of supporters cannot reasonably expect anything but contempt from Justice Thomas for unethical and even criminal behavior.

Another anonymous commenter speculated: "maybe KC is just bored so he has to resort to cheap shots. Liberal activists have been the core of this mess and injustice and conservatives like Thomas (and including lone democratic party supporter KC) have been defending the due process, once again."

To be sure, liberal activists have been very problematic, but not all liberals or all Democrats have abandoned due process. Example: MSNBC General Manager Dan Abrams is not a conservative, but he followed the evidence and took on his esteemed father's best known client, The New York Times, over its Duke case reporting.

Yet another anonymous commenter expressed disappointment:

"I  too was disappointed in KC's cheaphot reference to Clarence Thomas. I suspect the cheapshot was meant for Joyner's read (who worse for him to be compared to).

"It's also consistent with KC's repeated reference to his support for Barack Obama which I take as an effort to make it more difficult to categorize him as a 'right wing blogger.'"

An anonymous (black) commenter let Professor Johnson know he was not amused:

"Hmmmm.... I foolishly thought this was about right and wrong; not about 'liberal' or 'conservative,'  Democrat or Republican. As a black man who leans towards the conservative side, I am offended by KC's unwarranted cheap shot at Justice Thomas."

Either a whole lot of people reading Durham-in-Wonderland misread or Professor Johnson should think seriously about doing what the 88ers won't: apologize.

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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