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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:  June 12, 2007
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Duke Case: Richard Brodhead's Earlier van de Velde Fiasco

"Brodhead’s willingness to offer up a sacrificial lamb undercut justice in other ways. Three days after the murder, New Haven police spoke to Van de Velde, but declined his offers to let them search his home, take a DNA sample, or take a polygraph exam (they did dust his car for fingerprints; their findings provided no link)."

Professor Hershel Parker is the author of the definitive biography on Herman Melvile and a man who readily understands what the members of the 2005-2006 Duke University Men's Lacrosse Team were put through in significant part because then (and still) Duke University President Richard Brodhead put his faith in false accuser Crystal Gail Mangum and rogue prosecutor Michael B. Nifong, abandoned the players in their time of need in order to promote the political correctness agenda at their expense and announced at the annual meeting of the Durham Chamber of Commerce on April 20, 2006, "If our students did what is alleged it is appalling to the worst degree. If they didn't do it, whatever they did was bad enough" (even though it had been publicly announced on April 10, 2006 that initial DNA tests failed to connect any of the players to the false accuser and Mr. Brodhead knew or should have known that Ms. Mangum's credibility was, at best, doubtful.

Professor Parker:

"I was just looking at what Google has under 'James van de Velde.' Many articles about the impossibility of restoring reputation along with articles on the likelihood that he is a murderer. It's familiar stuff, and Brodhead is in it, rushing to judgment. No one saw this as a warning when he was hired at Duke, I suppose.

"....I just saw Patricia Cornwell talking to Anderson Cooper about her cyber stalker. Her term for things like the false accusations about me is 'space trash.' And she looks strained, drained: no matter how successful you are, it hurts to be lied about and have no way of stopping the lies, although she is going to try to get Google and Yahoo to remove some of the defamation."

In early June 2006, American Enterprise Institute's Michael Rubin called attention to Mr. Brodhead's role in the van de Velde case in a National Review Online article entitled "Forget the Facts: Duke's president has a history of allowing public relations to trump principle.

Mr. Rubin:

"An exotic dancer’s accusation that Duke University lacrosse players raped her at a March 14 off-campus party continues to polarize Durham, Raleigh, and the Duke community. Those accused were white; the victim was black. Citing the racial overtones, both Jesse Jackson and Al Sharpton joined the fray. For several days, protests rocked the Durham campus. On March 25, Duke University President Richard Brodhead issued a statement declaring, 'Physical coercion and sexual assault are unacceptable in any setting and have no place at Duke.' Of course, he issued the caveat, 'People are presumed innocent until proven guilty,' but on campuses today, such presumption is secondary. On April 5, Brodhead canceled the lacrosse team’s season and promised an investigation of the culture of college athletes as well as Duke’s own response. The lacrosse coach resigned.

"Months later, more is known about the incident. While District Attorney Mike Nifong is pressing on with charges of rape and related accusations against three lacrosse players, his case is unraveling. Photos, witnesses, alibis, inconclusive DNA evidence, and even passed polygraphs make his case increasingly tenuous."

But Mr. Brodhead was not admitting that he had rushed to judgment and misjudged horrifically.

Mr. Rubin checked Mr. Brodhead's record as Yale dean and learned that fairness to the accused was not something on which Mr. Brodhead was keen:

"Unfortunately, it is not the first time that Brodhead has allowed public relations to trump principle. Prior to assuming the presidency of Duke, Brodhead was dean of Yale College. He was a popular teacher and, at least for the first half of his tenure as dean, a well-liked administrator as well. Then tragedy struck. On December 4, 1998, senior Suzanne Jovin was found stabbed to death and left at an intersection in a neighborhood adjacent to the Yale campus which housed many Yale professors and graduate students.

"Many universities are shy about adverse publicity. At Yale, it’s an obsession. My freshman year, lacrosse player Christian Prince was shot and killed on the steps of a church, a couple dozen yards from a student dormitory. He was white; his alleged assailant was black. It was Yale’s worst nightmare. Parents and applicants peppered admissions officers and tour guides with questions about New Haven safety. The Damocles’ sword of incitement and town-gown racial tension hung over Yale’s administrators.

"When Jovin was murdered, justice took a backseat to damage control. Within days New Haven police and Yale officials publicly fingered political scientist James Van de Velde, Jovin’s senior essay adviser. He was a star lecturer and had been a residential college dean. He was also a former White House appointee under George H. W. Bush and a member of the U.S. Naval Intelligence Reserves. Most Yale professors lean to the left of the student body; few in the political-science and international-relations departments have real-world experience. Van de Velde was the subject of personal jealousy and political animosity. Many faculty members—including Brodhead—looked askance at his desire to emphasize practical policymaking over theory. Some questioned, for example, his willingness to help Jovin write—in 1998—about the threat posed by Osama bin Laden to the U.S. to be unscholarly. From an academic point-of-view, Van de Velde was a black sheep.

"Yale administrators did not care that there was neither evidence nor motive linking Van de Velde to Jovin. Her body had been found a half-mile from his house. Just as at Duke, Brodhead spoke eloquently about the principles of due process, but moved to subvert it. Citing the New Haven Police Department’s naming of Van de Velde among 'a pool of suspects,' Brodhead cancelled Van de Velde’s spring-term lecture, explaining that 'the cancellation of the course doesn’t follow from a judgment or a prejudgment of his hypothetical involvement in the Jovin case.' As at Duke, Brodhead insisted that due process would prevail. Despite Van de Velde’s stellar student reviews and distinguished record, Brodhead then let his contract lapse. Van de Velde left New Haven, his career in shambles."

Mr. Rubin's judgment( and ample justification for it):

"Brodhead’s willingness to offer up a sacrificial lamb undercut justice in other ways. Three days after the murder, New Haven police spoke to Van de Velde, but declined his offers to let them search his home, take a DNA sample, or take a polygraph exam (they did dust his car for fingerprints; their findings provided no link).

"They did find Jovin’s fingerprints on a plastic soda bottle found at the crime scene. The soda bottle also had someone else’s fingerprints—not Van de Velde’s. But, having a suspect, why process evidence? The Fresca bottle was crucial. She did not have the bottle when last seen alive on the main campus by a fellow student. That was a half hour before she was found dying almost two miles away. That particular brand of soda was sold in only one store on campus. By the time the police visited it—months later—that store’s surveillance tape had been erased. Nevertheless, her likely presence there turned the half-hour timeline upside-down, and raised the probability that her attacker(s) had forced her into a vehicle, attacked her, and then dumped her—not the type of news Yale parents want to hear. Jovin may also have fought off her attacker. Subsequent tests of material taken from beneath her fingernails revealed DNA that did not match Van de Velde’s, that of her boyfriend, any other friend or acquaintance, or any emergency worker who tried to save her. Neither Yale nor the New Haven police have explained why it took two years to test the scrapings. Nor have they explained why they ignored eyewitness accounts of a tan or brown van seen parked at the crime scene at the time of the crime. Van de Velde drove a red Jeep Wrangler. Brodhead has never apologized. In March 2000, a Yale spokesman dismissed press inquiries saying that more attention to the case 'can only hurt Yale' (he would later deny he said it). Public relations trumps justice. Today, Jovin’s murder remains unsolved.

"Leadership is not always easy, but it is incumbent upon university presidents to set an example. When university presidents act on principle, they can be subject towithering criticism and attack. The right path is not always easy. If Brodhead recognizes his error in the Jovin case, he should apologize to Van de Velde, its other victim. That he repeats his mistakes—at Yale canceling a class; at Duke, a lacrosse season—does his leadership a disservice. Although just yesterday he agreed to allow a 'probationary' reinstatement of the lacrosse team, at Duke, he has affirmed those who, with accusations of racism and adherence to political correctness, demanded premature action. He has treated the accused cavalierly. Justice should take its course. Brodhead need not act until the charges are dismissed or a verdict returned. But, if then, it transpires that he has once again tarred the innocent, he can prove his leadership with an apology or a resignation."

Brodhead, apologize?

Brooklyn College History Professor Robert K.C. Johnson not only highlighted Mr. Rubin's article and supported his judgment, but explained how Mr. Brodhead had continued to help the Hoax and to wrongly disparage Duke's male lacrosse players.

"Going?: Brodhead’s ability to manage politically charged campus crises, after an account critiquing his conduct while dean at Yale, his position before coming to Duke. Author Michael Rubin contends that in the case of former Yale lecturer and former naval reserve officer James Van De Velde, Brodhead deliberately took actions—canceling Van De Velde’s classes at the last minute before the spring 1999 term started, discouraging a subsequent investigation into the university’s handling of the case—that suggested to fair-minded outside observers that Yale believed Van De Velde could very well have murdered his senior thesis advisee, Suzanne Jovin. Nearly eight years later, the murder remains unsolved, and though no reason exists to believe that Van De Velde committed it, his academic career was ruined. As Rubin notes, 'That [Brodhead] repeats his mistakes—at Yale canceling a class; at Duke, a lacrosse season—does his leadership a disservice . . . at Duke, he has affirmed those who, with accusations of racism and adherence to political correctness, demanded premature action. He has treated the accused cavalierly. Justice should take its course. Brodhead need not act until the charges are dismissed or a verdict returned. But, if then, it transpires that he has once again tarred the innocent, he can prove his leadership with an apology or a resignation.”

"The release of Rubin’s article coincided with Brodhead’s highly peculiar remarks accompanying the reinstatement of the lacrosse team, comments that went out of their way to place the players in the absolute worst light possible. This already had seemed to be the administration's party line, as seen in Robert Bliwire’s Duke Magazine article, which contained quotes from the team’s three most ferocious faculty critics and only one student, an anti-lacrosse team African-American whose views appear to be highly unrepresentative of the student body as a whole.

"Two items typify a pattern that’s evident throughout the president’s lengthy statement. First, Brodhead noted, 'As you probably know, initial reports circulated through the media advanced the case against the students; more recent reports have made the case in their favor.' This sentence is true. It is also extremely deceptive. A fair-minded outside observer would take away from it the following: the quality and quantity of evidence presented in both waves of reports was about the same, so we’re pretty much back to square one, and since the conventional wisdom is that most women don’t lie about allegations of rape, the accused are probably guilty.

"In fact, what Brodhead terms the 'initial reports [that] circulated through the media [which] advanced the case against the students' have proven, in many cases, to be completely false (such as Nifong’s assurance that DNA evidence would identify the guilty, or his 'hinting' to Newsweek that the players used a date rape drug). Moreover, none of these 'media reports' contained any documents related to the case. Instead, they consisted of Nifong’s statements—remarks, it turns out, that almost certainly violated the state bar’s ethics guidelines on a prosecutor’s acceptable public comments.

"Meanwhile, what Brodhead terms the 'more recent reports [that] have made the case in their favor' is an unusual way to describe things. Yes, the video of Reade Seligmann at an ATM machine while he supposedly was committing a rape someplace else is posted on a media website, as is the transcript of the photo ID that ignored state procedures, as are defense legal motions outlining the wildly contradictory statements to the police made by the accuser and the second exotic dancer. But primary sources aren’t usually considered 'media reports,' and certainly are not equivalent to the items referenced in the first half of Brodhead’s sentence.

"If the president had wanted to place events in a context more favorable to his own institution’s students, Brodhead could have remarked, 'As you probably know, initial reports circulated through the media, many of which have subsequently proved untrue, advanced the case against the students; more recent reports, documents, and other forms of evidence have made the case in the students’ favor and also raised concerns about the procedures followed in the investigation.' Both this sentence and the sentence used by Brodhead are true. But their meaning differs enormously. What’s left unsaid can sometimes be as important as what’s said.

"Another Brodhead comment: 'Though it did not confirm the worst allegations against this team, the Coleman Committee documents a history of irresponsible conduct that this university cannot allow to continue.' Again, this sentence is true. It is also extremely deceptive. A fair-minded outside observer would take away from it the following: the Coleman Committee didn’t find evidence confirming 'the worst allegations against this team'—i.e., that three of its members raped someone, which is clearly the 'worst' allegation against the team—but otherwise had nothing good to say about the players.

"In fact, the committee found clear evidence that members of the team violated alcohol-related laws in a percentage disproportionate to their numbers, but added that the issue was a problem for hundreds of other Duke students. The committee also noted that the team members had very strong academic records, an impressive rate of community service, and showed no evidence of sexist or racist behavior on campus.

"If the president had wanted to place events in a context more favorable to his own institution’s students, Brodhead could have remarked, 'Though it confirmed that team members had a history of irresponsible alcohol-related conduct that this university cannot allow to continue, the Coleman Committee also documented impressive academic, social, and athletic performances by most lacrosse players.' Both this sentence and the sentence used by Brodhead are true. But their meaning differs enormously. What’s left unsaid can sometimes be as important as what’s said.

"While the president went out of his way to avoid any mention of positive items regarding the lacrosse team, he proved remarkably generous in discussing the local leaders who have targeted the Duke students. Brodhead expressed his gratitude for 'the Durham leaders who have recognized that truth and justice are common values, things we must pursue and uphold together.'

"One wonders to which specific 'Durham leaders' Brodhead was referring? Perhaps City Manager Patrick Baker, who, after learning that several Durham policemen initially were skeptical of the accuser’s claims, personally spoke to each member of the Durham Police Department. He claimed that he was not pressuring the officers to get behind Nifong (and shore up the city’s position from a potential lawsuit down the road) but merely showing that 'it’s proper for a city manager to know what's going on with his subordinates.' Or perhaps Brodhead had in mind Durham’s legal leader, Nifong. Yet yesterday came the latest from the discovery file about Nifong's unusual conception of 'truth and justice": the accuser had performed earlier in the evening of the incident before two other clients; the accuser initially contended that the second dancer assisted with the rape; and the second dancer initially stated that she was with the accuser for all but less than five minutes on the evening in question, only to subsequently change her story after being arrested and having the district attorney waive a $15,000 bail bondsman payment she faced. Nifong mentioned none of these items in any of his 70-plus media appearances on the case before the primary, nor in his filing for search warrants, where he described the alleged assault as having lasted for 30 minutes.

"If the president had wanted to place events regarding 'Durham leaders' in the highly negative context he used when describing his own institution’s students, Brodhead could have remarked, 'While we understand truth and justice are common values, things we must pursue and uphold together, Durham leaders must also understand that cardinal principles of pursuing "truth and justice" are adhering to traditional investigatory procedures and evaluating all evidence fairly.' Both this sentence and the sentence used by Brodhead are true. But their meaning differs enormously. What’s said can sometimes be as important as what’s left unsaid.

"In today’s Daily News, former New York Times legal correspondent and Kennedy administration federal prosecutor Sidney Zion gives a superb description of Brodhead’s behavior:

'Against this backdrop [of prosecutorial misconduct], Brodhead this week did what he clearly considered to be a magnanimous gesture. In reinstating the team, he said he was "taking a risk." Richard the Brave.

'Uh-huh. And then he laid out conditions: The lacrosse team would be on probation; the players would have to respect new rules of behavior. I have no argument with these rules, having to do with drinking, etc., but coming from Brodhead, they were a new way to spell chutzpah.

'The fundamental rule he should have imposed was on himself and his college: Respect the presumption of innocence and never impose collective guilt.'

"To be fair, the situation that Brodhead has experienced is an extraordinary one. In Nifong, he has dealt with a prosecutor who seems, at least regarding this case, to be lacking in both ethnics and competence. On campus, he has confronted the combination of a sizable rush-to-judgment faction of the faculty (the Group of 88) and what could be termed Duke’s 'blue wall of silence'—the unwillingness, to my knowledge, of even one of the more than 500 professors on Duke’s arts and sciences or law faculties to publicly question Nifong’s myriad procedural irregularities.

"Brodhead concluded his remarks by noting, 'This university will be judged not by the events that happened here but by how we face them and learn from them. I am committed to drawing the lessons of recent events, and it’s my hope that by doing so, we will make a great university better.' That standard, it seems to me, is a fair one. It also is one that Brodhead is, increasingly, showing little indication of meeting."

So posted Professor Johnson, presciently, on June 9, 2006.

Mr. van de Velde sued for defamation, alleging that Quinnipiac University had leaked false information to a New Haven newspaper after dismissing him from a master's degree program shortly after the unsolved murder.

Quinnipiac University settled with him for $80,000.

Mr. van de Velde: ""They're giving me $80,000. If that's not an admission of guilt, I don't know what is."

In December 2001, Mr. van de Velde filed a lawsuit against a retired New Haven police chief and several police officers involved in the investigation. In April 2003, he added Yale President Richard Levin, Secretary Linda Lorimer, Yale College Dean Richard Brodhead, Deputy Dean Joseph Gordon, spokesman Tom Conroy and Yale Police Chief James Perrotti to the lawsuit.A federal judge dismissed the case, even though Yale and the police had identified Mr. van de Velde as a suspect in the murder of Ms. Jovin. He had alleged that naming him but not other suspects violated his constitutional right to equal protection, but the judge ruled that he had not demonstrated that Yale knew the names of other suspects or that the police department had been asked the names of other suspects.

Will Duke and Mr. Brodhead be sued as a result of their actions related to the now notorious Duke case?

Or will there be a settlement even before a lawsuit is filed (and will it cover all the team members or just the indicted ones)?

Will Duke money buy a confidentiality agreement or will the whole truth become known?

We can infer from the settlement in the Dowd case that Duke prefers confidentiality agreements.

But is it right for Duke funds to be spent to suppress the truth (or only the indicted players to be compensated)?

Hint: NO!

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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