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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:  June 18, 2007
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Duke Case: Open Letter to Unindicted Players

[T]here is much good that can come from "the fiasco" if those of you who do not fear retaliation, or have reason to be embarrassed, or believe (with others, including me) that the best interests of Duke (and society) will be served by litigating with Duke so that what Duke did wrong will be fully appreciated, suitably compensated and not repeated.

Short version: SUE DUKE!

Long version:

I believe that you Duke men can benefit from the wisdom of a Dartmouth man, at least when the Dartmouth man is Dinesh D'Souza and the subject is holding the political correctness culprits accountable.

Mr. D'Souza:

"Now what about the mau-mau artists at Duke, influential figures on the faculty, who whipped the campus up into a racial hysteria? What happens to the people who helped to create a mob mentality against students, rendering their lives miserable for more than a year, when their guilt was never established, never even probable, and now they have been shown to be innocent?

"From the time the first reports of sexual assault at Duke University surfaced, these intellectual vigilantes went to work. Houston Baker, a professor of English and Afro-American Studies, issued a public letter condemning the 'abhorrent sexual assault, verbal racial violence and drunken white male privilege loosed among us.' He seems to have simply presumed the students guilty.

"Shortly after that, 88 members of the Duke arts and science faculty--the so-called Gang of 88--signed a public statement praising campus demonstrators who had distributed a 'WANTED' poster that branded the lacrosse players as 'rapists.' The Gang of 88 didn't use that term, but its statement referred to 'what happened to this young woman.' Ignoring calls to wait for the evidence, the gang instead went into full social-justice gear.

"'What is apparent every day now is the anger and fear of many students who know themselves to be objects of racism and sexism, who see illuminated in this moment's extraordinary spotlight what they live with every day...We're turning up the volume in a moment when some of the most vulnerable among us are being asked to quiet down while we wait. To the students speaking individually and to the protesters making collective noise, thank you for not waiting and for making yourselves heard.' In other words, Go vigilantes go!

"Now it is time to hold these folks accountable. I know itís too much to expect that these politically correct vigilantes have their teaching licenses taken away. But perhaps itís not too much to ask that they be officially reprimanded by the university."

Duke University, under President Richard Brodhead and Board Chairman Robert Steel, is filled with regret, but not remorse, and just wants to move on, of course.

Duke needs to accept the ugly truth, apologize to the betrayed players and their families, atone publicly and act to ensure that other Duke students are not badly advised or even abused instead of buy silence under confidential settlements, protect culprits and tolerate and even encourage political correctness gone wild (much worse than a legal, but bad, "entertainment" choice for an off campus spring break party).

LieStoppers post "brand" is right:

"[O]ther parties, such as the Group of 88 and its activist and grade-retaliatory members, the Duke administration, the NAACP [and] the MSM, should [not] be allowed to use the Disciplinary Proceedings or Mr. Williamson's remarks to try to take themselves off the hook.

"The activist members of the Group of 88 used this case to further their own racist and sexist agendas, in a blatant attempt to grab for more academic and political power.

"The Duke administration was the epitome of spinelessness and pc-blindness in caving to those activists and in 'investigating' and 'evaluating' everybody but the very persons who caused the most harm to Duke University - the activist members of the Group of 88.

"...

"It's not over yet. These groups also must be called to account."

Especially Duke University.

This year the Dowd family sued Duke and Duke avoided discovery and trial by settling confidentially.

I cheered the filing of the complaint in "Justice for Duke Lacrossers: The Dowd family strikes back":

"The Dowd family has sued Duke University and Professor Kim F. Curtis!

"May justice be done!"

Kyle Dowd had an awesome punitive grading suit that was embarrassing to the politically correct extremists in charge at Duke for them, so Duke avoided discovery and trial and settled.

Much good could have come from the publication of a transcript of a deposition of Professor Curtis and, better, a broadcast of her testifying at a trial, but there will be no deposition or trial and Professor Curtis, the perennial visiting professor, is scheduled to teach next semester.

This overview of the Dowd case is set forth in paragraph 7 of the complaint:

"This case arises from an ongoing 'scandal' at Duke University stemming from false allegations of criminal conduct against three members of the men's lacrosse team at Duke. In brief, Kyle Dowd and one other lacrosse player (neither of whom are among the three that face the dubious criminal charges) were enrolled in a class taught by Defendant Curtis entitled 'Politics and Literature' during the Spring 2006 semester at Duke. Before the 'scandal' broke, both of the players were earning passing grades on their assignments in that course. After an accuser made allegations of rape and/or sexual assault against three other members of the team, Defendant Curtis assigned both of the lacrosse players in her 'Politics and Literature" class (and onlv the lacrosse players) failing grades on their final assignment in the class. Plaintiff Kyle Dowd was given an 'F' as his final grade in the class, Initially, Duke refused to entertain any arguments by Mr. Dowd and his parents that the grade was incorrect. The Dowds, anguished in their belief that Kyle would not graduate, pleaded with Professor Curtis and Duke to admit their error. Duke rebuffed their requests, but eventually recognized certain credits that Kyle had earlier earned at Johns Hopkins University, thereby allowing him to graduate. In the months after Kyle Dowd graduated, Duke has since stated that the 'F' grade originally given to Kyle Dowd resuIted from a 'calculation error,' and has changed Mr. Dowd's final grade to a 'D,' a grade that still has no basis in reality."

Reality is that Kyle Dowd refused to do what Duke told the members of the 2005-2006 Duke University Men's Lacrosse Team not to do and told his parents what had happened.

Good for him!

How dare Duke tell the players not to talk to their parents!

And how come every one on you didn't immediately reject that self-interested advice? (You should have known that every one of your parents puts your best interests first; bad advice from Dean Sue or even Coach is still bad advice; and Duke puts its interests first.)

Essentially, Duke initially decided to tell you players what to do and not to do when you needed unconflicted legal advice.

Duke lacrosse defender (on and off the lacrosse field) Glenn Nick (Duke '06): "It is quite impressive that Dean Sue Wasiolek, a law grad and former lawyer, had not the slightest idea on how to handle the Duke Lacrosse situation in its infancy....After advising the captains not to seek their own counsel or to tell their parents because this would be swept under the rug, she went on to offer public statements all but condemning the innocent boys."

As an attorney, I am outraged that Dean Sue presumed to give such legal advice in view of the glaring possible conflict of interest between her employer, Duke, and the players, and as a parent that a dean would tell students not to consult with their parents and/or own attorneys.

Amazingly, it got worse, so Duke treated you or let you be treated as pariahs and cancelled your season.

Question: If false accuser Crystal Gail Mangum had been a white ex-convict stropper with a criminal record and mental problems and all but one of you were black scholar athletes, would Duke have cancelled the season to placate David Duke and quietly condoned what transpired on campus and even in your classes?

Blogger John Bruce:

"'Multiple sources confirm that Coach Mike Pressler, apparently acting on orders from above, instructed the other players not to tell their parents about the police inquiry. Meanwhile, Dean Sue Wasiolek arranged for a local lawyer, Wes Covington, to act as a "facilitator" in arranging for a group meeting with police.'

"As a lay observer, it's nevertheless fairly plain to me that this fellow Wes Covington had a conflict of interest, should have known he had a conflict of interest, and should have refused to get involved. Covington was working for Duke, but Duke, telling the students not to tell their parents (thus keeping them from knowing they should have their own counsel), was fooling the students into thinking they were Covington's clients. While Dean Sue Wasiolek's name is mentioned here, it's hard for me to think a decision to hire an attorney for this purpose wasn't made without the participation of Duke's General Counsel who, all together now, should have known Covington had a conflict of interest, and should have refused to get involved in something like this.

"It may be that everyone involved has been too busy to file ethical complaints against Covington and Duke's General Counsel, but after all, there are 40-odd sets of parents involved here. . . (Just for fun, by the way, if the facts as outlined in the case summary are correct, we may be very close to having the elements of a conspiracy to deprive certain Duke University students of their civil rights, viz., their right to counsel in a criminal matter.)

"I suspect the Dean and the General Counsel will be out of work soon, too. My wife, an attorney, holds out some hope that Covington can retain his law license."

The choice of Mr. Covington seems odd, since the biography of him posted at his firm's website describes him as follows: "Wes Covington's practice focuses on trial work in the negligence and the medical malpractice areas. Mr. Covington was admitted to the North Carolina Bar in 1981. He received his undergraduate education at Duke University and his law degree from North Carolina Central University. Mr. Covington has been very active in the representation of businesses, medical practices, and nonprofit organizations. For a number of years prior to joining the firm, Mr. Covington was an Assistant District Attorney in Durham County. An active scuba diver, he has been involved in dive accident litigation across the United States."

The same Wes Covington mentioned in this excerpt from a 2003 Indy (the independent news weekly) article:

"...beneath DAN's tranquil surface, its depths are roiling. Unbeknownst to all but a handful of the 450 people in the ballroom that night, the nonprofit's board forced Bennett to surrender the helm long before he was ready. In an 18-month legal battle that ended just weeks before the big banquet, a majority of the directors accused their CEO of mismanaging corporate funds and spending them extravagantly on himself and his supporters, including Durham attorney Wes Covington, DAN's corporate counsel for most of its 22-year history. The board also alleged that Bennett tried, with Covington's help, to secretly gain control of DAN's lucrative Cayman Islands insurance subsidiary, engaged in favoritism and nepotism, and generally ran the nonprofit like a for-profit autocracy. Meanwhile, he collected three salaries--from DAN, its subsidiary, and Duke University, where he holds a professorship--totaling well over $200,000 a year, plus travel and benefits."

Certainly, Reade Seligmann. Collin Finnerty and David Evans, as the indicted players, suffered the most.

But all of you and your families suffered greatly too.

Duke seems to me to be liable to all of you.

The Dowd complaint set forth eight causes of action: (1) breach of contract (against Duke); (2) unjust enrichment (against Duke); (3) fraud (against Ms. Curtis and Duke); (4) negligent misrepresentation (against Ms. Curtis and Duke); (5) intentional infliction of emotional distress (against Ms. Curtis and Duke); (6) negligent infliction of emotional distress (against Ms. Curtis and Duke); (7) negligence (against Ms. Curtis and Duke); and (8) punitive damages (against Ms. Curtis and Duke).

The Dowd complaint asserted: "Duke by and through its agents breached the contract with Kyle Dowd and his parents, including but not limited to the following:

a. Discriminated against Kyle Dowd with respect to the grade assigned him in Defendant Curtis' 'Politics and Literature' class due to his membership in the lacrosse team, in violation of the official policy set forth in the Undergraduate Handbook, as well as in violation of the terms of Duke's accreditation standards and Faculty Handbook;

b. ...

c. Employed a professor (i) who graded on the basis of' bias and prejudice, in violation of policies set forth in the Undergraduate Bulletin and the Faculty Handbook, and in violation of accreditation standards...."

I suspect that a review of the Undergraduate Bulletin and the Faculty Handbook and the promises made to the players when they were recruited will uncover ample grounds for pursuing legal recourse against Duke.

I also note that Duke has treated team members differently in some respects.

Example: Duke petitioned for (and obtained) an additional year of eligibility for team members other than the ones who graduated in 2006.

For the 2006 graduates, Duke apparently has not done much more than send requests for donations.

None of the team members ever committed felonies or gave Duke cause for what it did to and did not do for them, but they are individuals, with individual interests, as well as common interests.

Some may not want to litigate with Duke, out of fear of retaliation. or embarrassment, or a simple desire to do other things instead, or even out of charity.

I get all of that.

But there is much good that can come from "the fiasco" if those of you who do not fear retaliation, or have reason to be embarrassed, or believe (with others, including me) that the best interests of Duke (and society) will be served by litigating with Duke so that what Duke did wrong will be fully appreciated, suitably compensated and not repeated.

So...PLEASE SUE DUKE!

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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