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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 20, 2007
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Duke Case: Sensible Settlements or Sellouts

Does that confidential settlement preclude the families that settled from helping the other 42 families take legal action against Duke and Duke faculty members? Those families faithfully supported the indicted players and refrained from taking their own legal action earlier. They deserve a little reciprocity.

Duke did it again!

First, it settled confidentially with the Dowd family that brought a punitive grading suit against Duke and perennial visiting Professor Kim Curtis. The Dowds got a P instead of a D for Kyle, improving his GPA and class standing, and, to be sure, more money than they paid to bring the suit. Duke avoided discovery and, worse, trial.

Then, Duke settled confidentially with the Finnerty, Seligmann and Evans families, sparing itself even the impact of publicly filed complaints (the Dowds filed a great complaint) and sparing its faculty from litigating with those families.

Herewith the statements issued in connection with the settlement:

STATEMENT OF THE BOARD OF TRUSTEES AND THE PRESIDENT OF DUKE UNIVERSITY:

This has been an extraordinary year for Duke students David Evans, Collin Finnerty and Reade Seligmann, who were accused of serious crimes they did not commit. In April, after a thorough review, the North Carolina Attorney General declared that they were innocent of all charges and that the charges never should have been brought. We welcomed their exoneration and deeply regret the difficult year they and their families have had to endure. They conducted themselves with great dignity during their long ordeal.

These young men and their families have been the subject of intense scrutiny that has taken a heavy toll. The Board of Trustees and the President have also determined that it is in the best interests of the Duke community to eliminate the possibility of future litigation and move forward. For these reasons, and after considerable deliberation, the trustees have agreed to a settlement with each student. Beyond this statement, the resolution is a private matter among the students, their families and Duke.

This past year has been hard for many people who care about Duke -– for students, faculty, staff, alumni, families and friends –- and for the three students and their families most of all. We resolve to bring the Duke family together again, and to work to protect others from similar injustices in the criminal justice system in the future.

STATEMENT OF DAVID EVANS, COLLIN FINNERTY AND READE SELIGMANN:

Today, we are pleased to announce that we have reached an agreement with Duke University to resolve any differences between us.

Years ago, each of us made a decision to attend Duke because it is one of the greatest universities in the nation. We chose to represent the University on the athletic field and in the classroom as student athletes. We were honored to be admitted and proud to wear the Duke uniform and to compete against the best lacrosse teams in the nation. Duke is a very special place. It balances top-notch academics and athletics, and it offers unparalleled opportunities to its students. We were drawn to Duke because of its sense of community.

The events of the last year tore the Duke community apart, and forcibly separated us from the University we love. It is impossible to fully describe what we, our families and team endured. As we said from day one, we are innocent. But it took three hundred and ninety-four days, and the intervention of the North Carolina Attorney General, before our innocence was formally declared. We were the victims of a rogue prosecutor concerned only with winning an election, and others determined to railroad three Duke lacrosse players and to diminish the reputation of Duke University. Throughout our ordeal, however, we never forgot the lessons we learned, both on and off the field, about character, integrity, and honor. Those lessons, and the love and support of our wonderful families, friends, lawyers and supporters across the country helped us to prevail against those who refused to seek the truth and to protect all citizens from injustice.

We hope that today’s resolution will begin to bring the Duke family back together again, and we look forward to working with the University to develop and implement initiatives that will prevent similar injustices and ensure that the lessons of the last year are never forgotten.

Does that confidential settlement preclude the families that settled from helping the other 42 families take legal action against Duke and Duke faculty members?

Those families faithfully supported the indicted players and refrained from taking their own legal action earlier. They deserve a little reciprocity.

Hopefully, at least some of them will do what Duke fears; file complaints, conduct discovery and go to trial.

Brooklyn College History Professor Robert K.C. praised both settlements.

His endorsement of the big one was as follows: "This a common-sense decision that serves the best interests of both sides. For the three players and their families, the move continues the process of putting behind them the events of the last 15 months; for Duke, the settlement prevents litigation that could have posed serious public relations problems, even if the University had eventually prevailed in court."

Obviously there would have been serious public relations problems, as there should be.

It is the spotlight that allows remedial action to be made. Example: the disbarment and suspension of Durham County District Attorney Michaell B. Nifong. North Carolina ranked at or near the bottom in legal ethics enforcement, but the world was watching and so Mr. Nifong became the first North Carolina District Attorney to be charged, much less found guilty and disbarred.

Duke needs to set things right. With the spotlight that comes with litigation, the chance of that is not bright.

Professor Johnson reported in an article entitled "McCain: Group of 88 Defiant, Despite Settlement" that the culprits on the Duke faculty are defiant, not contrite, and that's not right.

Professor Johnson:

"Incoming Academic Council chair Paula McClain (who last summer proclaimed that she would not publicly advocate due process for the three accused students from her own school) was defiant about the recent settlement shielding the faculty from liability. 'I’m not going to be intimidated,' declared she, 'into modulating speech.'

"As for the faculty, McClain mused, 'I don’t know if any faculty really felt any liability.'

"Really? Here was fellow Group of 88’er Cathy Davidson, in a January 8 e-mail: 'I have had lawyers look at the original [Group] ad and ambiguity of the language could be made, in a court of law, to seem as if we are saying things against the lacrosse team.'

"It's nice to see that for the next two years, the Duke faculty will be led by a voice of such candor as McClain."

What should we expect if Duke buys silence? Certainly not vitally needed change at Duke.

Durham's News & Observer, in an article entitled "Duke deal shield faculty," reported:

"Duke University's settlement with exonerated lacrosse players gives legal protection to faculty members, some of whom have been under siege for speaking out in the wake of the gang-rape allegations.

"Neither side would disclose the terms of the agreement, announced Monday, but Duke's faculty chairman, Paul Haagen, informed professors that one provision is that all faculty members have been released from liability related to the lacrosse case."

ONLY RELEASED BY THE FINNERTY, SELIGMANN AND EVANS FAMILIES!

NOT by the families of the 44 unindicted members of the 2005-2006 Duke University Men's Lacrosse Team (except, perhaps, the Dowd families, if Duke lawyers got a general instead of limited release).

News & Observer: "Duke shut the door on lawsuits by the players in the lacrosse case...."

Wrong again, News & Observer!

Now it is up to the families of the unindicted members to decide, individually, what they will or will not do. The families of the indicted players could not release the claims of the families of the unindicted players.

Professor McCain: "I don't know if any faculty really felt any liability. But in a very litigious society, anyone can sue for anything."

Is that provocative enough?

I received this email from a person who read my recent "Sue Duke!" article:

"I do hope they are listening. I also won't be surprised. I am certain there are numerous strong cases out there. I also get the impression that the good guys (the victims) are much smarter than the group of 88, Dean Sue, Brodhead et al.

"If a flood of lawsuits had been filed before Duke settled with the Three, it would have been difficult to secretly settle and think they could just move on. Now, anyone and everyone who suffered harm should go for it. Even those with 'reason to be embarrassed'....

"Hopefully this smart bunch is way ahead of us. We can hope."

Three points: (1) the three families did not want those lawsuits filled and, understandably, their preference was honored; (2) the legal jeopardy of the indicted players is over, Nifong is suspended and soon will be formally disbarred and the confidential deal of Duke and the three families is done, so any preference of theirs is no longer a good excuse not to sue Duke for what it did to the unindicted players; and (3)NOT suing might be perceived as evidence of fear of Duke or, worse, contribute to the suspicion lingering in some quarters that the team members can't stand scrutiny.

Dean Sue, if some do sue, what will you do?

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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