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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 22, 2007
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Duke Case: Susan Estrich, Dreg

Thank you, Ms. Estrich. Your latest atrocious article, "The Dregs of Duke," confirmed my suspicion.

In "Duke case; Susan Estrich, not a hoax heroine," posted January 3, 2007, I wrote:

"[T]he record shows that Susan Estrich was very late in calling false accuser Crystal Gail Mangum 'a liar.'

"Did she do so because she saw the light? Or because she had to do so, in order to be credible and to promote, with some credibility, her feminist views that Ms. Mangum is a victim and the rape law reform she championed that excludes certain truths from consideration in rape cases should remain intact?"

To those who chided or even castigated me for being hard of Ms. Estrich: NOW do you get it?

Dreg: the most undesirable part.

Ms. Estrich: "There are no heroes and no winners in the Duke lacrosse case, unless you count the North Carolina Board of Bar Overseers, which clearly did the right thing in disbarring the rogue prosecutor. Mike Nifong's selfish preoccupation with getting himself re-elected led him to not only seek an indictment that should never have been returned, but also to dissemble in public about what was going on in the investigation. His downfall should serve as a reminder of the power prosecutors wield, usually unchecked, to play God with people's lives."

First, there were plenty of heroes and winners in the Duke lacrosse case.

Starting with the indicted players--Reade Seligmann, Collin Finnerty and David Evans and their families. Yes, the indicted players made mistakes in attending (and in Mr. Evans' case, co-hosting) that stripper party, but that WAS legal and hardly unique, they owned up to their poor judgment, and railroading them on bogus kidnapping, rape and sexual offense charges was way over the top.

The lawyers who stood up for the indicted players, especially the late Kirk Osborn, are heroes and winners too. No more perfect that the players, they eventually did what needed to be done in the circumstances--win the case in the courtroom of public opinion by exposing now suspended Durham County District Attorney Michael B. Nifong as a rogue prosecutor and false accuser Crystal Gail Mangum as a person of little to no credibility--in order to thwart the possibility that the indicted players would be wrongly convicted, sent to prison for thirty years and then sued by Ms. Mangum.

No heroes, Ms. Estrich?

Remember Stuart Taylor from your Harvard Law Review days? When the liberal mainstream media was in lockstep lynch mob mode, Mr. Taylor was publicly stated that the gang rape story very probably was a lie and Mr. Nifong was a rogue prosecutor with possible criminal liability. Newsweek finally saw the light, and Mr. Taylor worked to make sure it got it right. (Aside to hero blogger and Churchill buff John in Carolina: an article comparing Mr. Taylor to Sir Winston warning against appeasement before World War II might be nice now.)

Wall Street Journal's Dorothy Rabinowitz recently wrote:"The story about the Duke athletes and District Attorney Nifong was not simply a riveting drama. It was in its searing way an educational event, not just about prosecutorial ambition run amok, but about a university world--reflective of many others--where faculty ideologues pursued their agendas unchecked and unabashed. Here was a nearly successful legal lynching, applauded by a significant chunk of the Duke faculty, proud to display their indifference to questions of guilt or innocence.

"Duke President Richard Brodhead was doubtless disturbed by the charges and the plight of the accused athletes. But that didn't prevent him from firing the lacrosse coach, in deference to the reigning hysteria--or treating the team members as though they merited shunning. For the most part, he kept his head down while the fires raged around him. His was, it should be said, not unusual behavior. The great consuming career goal of our college and university presidents--with the exception of oddities like Harvard's Larry Summers--has for more than two decades been the same: to avoid any word or deed that might incur the wrath of their gender- and race-obsessed faculties and allied campus activists.

"That these defendants happened to be wealthy and white spared them the ultimate consequence of prosecutorial misconduct, which, for less lucky types, can be a lifetime in prison. According to the latest reports, the three defendants spent about $3 million in legal fees to win their freedom, which is $3 million more than most defendants have. Had they been poor and black instead of rich and white, they might still be sitting in prison."

Tragically, America's educators, as a group, hardly distinguished themselves with respect to the Duke case. BUT there were two VERY notable exceptions: Brooklyn College History Professor Robert K.C. Johnson, who created the Durham-in-Wonderland website, and Frostburg State College's economist William L. Anderson.

There were heroic groups, LieStoppers and Friends of Duke University.

There were heroic television personalities, including MSNBC's Dan Abrams annd Fox News' Sean Hannity.

There were female heroes too, Ms. Estrich: La Shawn Barber, a black conservative (gasp) who realized what was up at the beginning and wrote passionately about the travesty of justice; Kathleen Eckelt, a registered nurse and forensic nurse examiner who made it a point to show that there really was no medical evidence supporting the bogus sex charges; Wendy McElroy, a prominent feminist outraged by "the media equivalent of a lynch mob" who insisted on following the facts and putting fairness and justice ahead of agenda and advantage; and Stefanie Williams, a liberal Maryland University student and lacrosse enthusiast who used a college newspaper and the blogs to ardently defend the innocent when it was not popular.

There were Thomas Sowell, a black conservative, Dino Costa, a white ultraconservative who hosts a radio show in Colorado, and more.

Your problems, Ms. Estrich, are that YOU are not a heroine and the truths that became well known as a result of the successful defense of the indicted players are not compatible with your political agenda.

Ms. Estrich: "The other announcement this week was that the players had reached a settlement with Duke University, which has been criticized for not doing enough to support its students. The problem here is: Had there really been probable cause to believe the students committed rape, in other words, had this been an honest prosecution instead of a dishonest one, the question of what a university should do is not so straightforward."

The real problems, Ms. Estrich, is that the political correctness extremists at Duke greatly embarrassed themselves and Duke is buying silence in order to limit the damage instead of owning up to its own misconduct and remedying its problems. Example: to avoid discovery, Duke quietly and confidentially settled a shocking punitive grading case and the punitive grader is still scheduled to teach next semester.

Whether there is or is not probable cause, an accused is entitled to the presumption of innocence and due process, regardless of race, color, creed, national origin, sex, sexual orientation, state of residence, political preference, height, weight, personal net worth and net worth of family members. NO one should be "lynched" by the media or terrified by the type of people who demanded that the members of the 2005-2006 Duke University Men's Lacrosse Team be castrated or referred to Reade Seligmann as "dead man walking" IN COURT!

Ms. Estrich: "The young men say they want to work with Duke to change its policies in future cases, which is certainly understandable given their experience. But assume for a moment that the prosecutor had not been lying; that there was DNA evidence supporting the woman's account; that the accused really were refusing to cooperate as the District Attorney dishonestly claimed. In those circumstances, should a university protect students who have been charged with a serious crime, or protect the rest of the students who haven't?"

A university is supposed to protect ALL of its students. Duke policies desperately need change. The whole truth needs to be told, so that positive change will be made, but Duke is in cover up mode, writing checks, instead of rectifying wrongs.

Mr. Nifong was disbarred (formally effective soon) because he had become a notorious public scandal. North Carolina ranked at or near the bottom on ethics enforcement, but Mr. Nifong had to go. Mr. Osborn's bold motion to remove him from the case as a result of his outrageous, obviously politically motivated public statements last spring should have been granted instead of sat on by Judges Stephens and Titus. Judge Stephens, Judge Titus (unconstitutional gagger of potential witnesses) and Administrative Judge Orlando Hudson (who swore in Mr. Nifong privately, refused to act on heroic Beth Brewer's statutorily authorized removal petition and initially tried to leave Mr. Nifong in office until the day on which Mr. Nifong choose to resign need investigating too. If that happens, and the North Carolina indictment process is made more meaningful and less automatic, then North Carolina is committed to reform instead of committed to cutting its losses.

Ms. Estrich: "I know of too many cases where women find themselves switching out of classes they wanted to take, moving out of the dorms in which they had comfortably lived, all because the university refused to take any action to protect them from classmates charged with raping them. Hindsight is 20-20, but universities have to make decisions before juries do. When the choice is between those charged with a crime and those who are, under the standards of probable cause, their likely victims, it's hard to argue for protecting the accused at the expense of the victim. Lawyers always say that hard cases make bad law; bad prosecutors make for worse rules."

The presumption of innocence does not disappear with indictment. If a alleged rape victim wants to keep an alleged rapist away, she should seek a protective order from a court. The fact that the alleged victim and the alleged rapist attend the same college does not mean the college should take it upon itself to decide the case in advance.

Ms. Estrich: " The woman in this case was obviously troubled, to say the least, and no experienced prosecutor or police officer would have brought charges based on her conflicting, inconsistent and unsupported accounts unless he had an agenda of his own. There has never been a single study that proved women lie about rape more than men or women lie about other crimes. But when they do lie, and when it is as transparent as it was here, the only humane course is to steer them toward getting help, not take advantage of their obviously troubled state. As Rae Evans, the mother of one of the players, Dave Evans, generously wrote to me in the midst of this mess, the accuser was also a victim of Nifong's abuse of power, the fourth victim in a case that should never have been brought."

Fascinating! Some people who insisted that a Durham jury had to decide whether the indicted players were guilty want Durham jurors to be deprived of the opportunity to decide whether the false accuser is not guilty by reason of insanity. Obviously the false accuser filed a false report and never retracted her claim to have been the victim of crimes at that ill-advised party. Remember Willie Gary, the flamboyant litigator who was supposed to bring the civil case after the indicted players were convicted? He won't be doing that. But the fact that the false accuser is troubled does NOT mean she did not have legal counsel and should not be prosecuted for filing a false report. Let a jury figure out whether she should be incarcerated or institutionalized.

The North Carolina Attorney General (Roy Cooper) gave the families of the indicted players the declaration of innocence that they craved and deserved and the families and their lawyers gave North Carolina cover for not prosecuting Ms. Mangum. Was that a coincidence? North Carolina's liberal white politicians like Attorney General Cooper and Governor Michael Easley don't want the trouble with their black political base that would come from a trial of Ms. Mangum. THAT is not surprising at all. The declaration of innocence followed by former Democrat state party chairman Wade Smith saying he could understand the decision not to prosecute Ms. Mangum is exactly what I expected. THE INDICTED PLAYERS WERE INNOCENT OF THE CHARGES!

Ms. Estrich: "Finally, there are the young men themselves. Make no mistake. They didn't deserve what they got. But they were not drinking tea in church when this incident began. They had engaged strippers to entertain them while they drank and taunted them."

YOUR mistake, Ms. Estrich. Reade Seligmann and Collin Finnerty did not hire the strippers and did not taunt them. The second stripper (Kim) admitted that they did not make any racist remarks. David Evans did co-host the party and, as a senior co-captain, was involved in the bad choice of "entertainment," but other Duke sports team, both men and women, arranged to be entertained by strippers. I've condemned the "entertainment" choice, the crude suggestion by one player and the racial remarks by a couple of unindicted players and even disappointed a mother by reiterating my support for suspension of a player for an email that WAS private and intended to be funny, but was also vile and more foolish than vile. As for underage drinking, I'm against it and don't know who drank what at that party, but underage drinking is not drunk driving.

That said, Ms. Estrich, your insinuation that the indicted players (and perhaps the entire team) are "the dregs of Duke" is despicable.

A study of the facts shows that the team members, thought not without sin, are, as a group, scholar athletes of which Duke, their families and their supporters in their time of crisis can be proud.

The most recent student misconduct statistics (those for the 2005-2006 year) prepared by Duke's Judicial Affairs Department have been compared with information on lacrosse players' misconduct.

Set forth below are some noteworthy observations you are not likely to read in New York Times or Durham's News & Observer.

(1) In the six most recent academic years ending in 2006, there were a total of 377 reported incidents of academic dishonesty (cheating, plagiarism, etc.) by all students. Of these, 58 were eventually dropped and 28 were adjudicated and the students found not responsible, leaving 291 incidents of academic dishonesty. NONE were lacrosse players.

(2) In the six years ending in 2006, there were a total of 46 reported incidents of physical abuse, fighting and endangerment, including 3 findings of not responsible. NONE involved lacrosse players.

(3) In the six years ending in 2006, there were 20 incidents of sexual misconduct, including 14 findings of not responsible. NONE were lacrosse players.

(4) In the six years ending in 2006, there were 96 incidents of drug related misconduct, including 2 findings of not responsible. Only one was a lacrosse player (smoking marijuana in his room in 2001 and he was not a member of the 2005-2006 team).

(5) In the three years ending in 2006, there were 171 alcohol related medical calls to DUPD/EMS. NONE were lacrosse players. (It's likely that these are the most serious, and dangerous, alcohol related violations.)

(6) About 60% of the lacrosse players, based on last year's team, had GPA's of 3.0 or higher.

(7) The lacrosse players have a 100% graduation rate.

The Judicial Affairs (JA) statistics show total incidents of misconduct broken down between those adjudicated and those not. However, for the non-academic violations, only the adjudicated cases are further broken down by type of violation, e.g., sexual misconduct, fighting, etc. Therefore, the JA statistics shown in items (2), (3) and (4) relate only to adjudicated cases. About 46% of all non academic cases over the six year period were adjudicated with the balance resolved in other ways. The information on lacrosse players' misconduct includes both adjudicated and non-adjudicated cases. Therefore, the relative behavior of the lacrosse players is even better in terms of the measures presented in items (2), (3),and (4) since the number of incidents for non-lacrosse players is understated. Information is not available to measure the extent of the understatement for these particular types of violations.

The Coleman Report, prepared under the leadership of Duke University Law Professor James Coleman after the gang rape claim, concluded, "[b]y all accounts, the lacrosse players are a cohesive, hard working, disciplined and respectful athletic team" and their "conduct has not involved fighting, sexual assault or harassment, or racist behavior."

The Report found that the players were not perfect, but "[t]he vast majority of the lacrosse players' incidents of misconduct involved underage and/ or public drinking, not abusive or dangerous use of alcohol," and "[t]heir behavior, in this regard, was typical of most college students."

Conclusion: "If one focuses on the more important measures of character, integrity and responsible behavior...the lacrosse players have...behaved better, on average, than other Duke students."

Ms. Estrich: "No one has denied that racial slurs were uttered, that the girls were treated badly, so badly that they left but were later convinced to return for more abuse. No one has questioned the authenticity of an e-mail sent to the group by one of the uncharged teammates, promising to "skin" the girls next time he had the chance. No, it wasn't rape, but it wasn't respect, either. There was a reason, beyond race and Nifong's nattering, why many of us believed a rape could have occurred in these circumstances. Rich white boys ordering up strippers for their amusement is not grounds for rape charges, but it hardly makes them heroes."

Some people refuse to repent, Ms. Estrich. And aren't liberals supposed to abhor guilt by association? A couple of racial slurs were uttered as one or two provoked players tried to out-insult a stripper. One player made a crude suggestion after a stripper suggested he was sexually inadequate. The "girls" were NOT invited back for "abuse." That email was authentic, but private and a parody of "America Psycho," studied at Duke. It was sophomoric humor, not serious. The stripping did not involve respect (including self-respect), but, like abortion, it was a legal choice.

Hiring or watching strippers is not heroic, of course. But the way the players, indicted and unindicted, reacted to the politically motivated and racist persecution that followed WAS heroic. No one agreed to lie for the prosecution. For telling the truth and not wavering, players were publicly pilloried. They suffered heroically. They stayed strong and learned from the horrific experience. They are heroes, Ms. Estrich. You and Wicked Wendy Murphy are zeroes.

In "Duke case: Susan Estrich, excruciatingly slow," posted January 2, 2007, I wrote: "Ms. Estrich still owes the members of the 2005-2006 Duke University Men's Lacrosse Team and the families and lawyers an apology."

Now you owe them another apology, Ms. Estrich.

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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