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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:  July 23, 2007
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Topic category:  Other/General

Duke Case: Duke Still Must Account

[T]he Duke administration that manipulated and abandoned the members of the 2005-2006 Duke University Men's Lacrosse Team and the faculty members who vilified them are in business-as-usual mode. That means there is still more to do than be satisfied that the bogus charges were dismissed, the wrongly indicted players were declared innocent by the North Carolina Attorney General and Michael B. Nifong is on defense and no longer Durham County, North Carolina's District Attorney. There is something very rotten at Duke, it's not generally appreciated and Duke is buying confidentiality in the hope of keeping it generally unappreciated.

Jason Trumpbour of Friends of Duke University: "[T]he Duke administration chose to supply personal information about its students to a manifestly unethical and corrupt district attorney in connection with a politically motivated investigation. Do not be fooled by the administration’s story that they did not know what to believe or that they instinctively trust public officials. Duke had been told by the police that the case was bogus and the file would likely be closed after the police had interviewed that alleged victim."

With that, I agree completely.

Mr. Trumpbour: "I do not believe that the administration actually wanted to help frame its own students. There is some indication that members of the administration initially believed the charges based on their own personal prejudices rather than objective facts. However, the one common denominator present is that there was always some other priority for the administration that was greater than the welfare of its students. They wanted to be on the right side in the eyes of the public regardless of the facts or law. They wanted to maintain their cozy working relationships with local officials. They wanted to appease small, vocal constituencies within their faculty. They did not think the lacrosse players deserved their help."

With that, I have a problem: Duke's President, Richard Brodhead, wisely recognized, publicly, that the felony charges might be bogus, but still insisted, publicly, that what happened was "bad enough," so he and his minions had an interest in portraying that party and the players at it as badly as possible. Duke might have been worse than Mr. Trumpbour thinks: after all, Duke DID help frame some of its students as a result of deliberate decisions to release private information surreptitiously and conceal that fact and it treated the bogus charges as plausible long after the DNA results and false accuser Crystal Gail Mangum's history were known.

When Judy T. Lloyd posted one of my recent Duke case articles on TheConservativeVoice forum, she implored me to move on: "Now that Nifong has been disbarred and the case dismissed can you move on to another story that needs attention? While I respect your opinion in these matters I think it is time...." Judy added: "[T]here are other subjects to write on. This case is over and now on to the ones say for example Michael Vick and his indictment for dog fighting or Bobby Cutts' murder of a pregnant woman. A hundred other things especially men who murder pregnant women despite the color of the woman's skin."

Judy, I'm FOR due process and the presumption of innocence for Michael Vick and Bobby Cutts as well as lacrosse players, AGAINST men who murder women, pregnant or not, regardless of the skin color of the men or the women, and NOT willing to stop writing about the Duke case until the whole ugly truth is generally known, ALL the culprits both in the criminal justice system and academia are publicly identified and properly pursued, and corrective action is taken to lessen the chance of a repetition of the abuse to which members of the 2005-2006 Duke University Men's Lacrosse Team by the criminal justice system, Duke and the biased media.

With Nancy Grace convicting Michael Vick on her television show, it's obvious that she hasn't learned from the fiasco and is looking for a less sympathetic victim of her venom. As a dog lover, I wish all 50 states made dog fighting a felony instead of only 48 and if you want more severe penalties, I'm with you. But it's at least premature to pronounce Mr. Vick guilty. I haven't forgotten Geraldo Rivera anticipating that Collin and Reade would enter into a plea bargain instead of stand strong in the face of the tsunami threatening to drown them. I wasn't a lacrosse fan before the Duke case and I'm not a Mike Vick fan, but criminal prosecutions are supposed to be based on evidence, not popularity or unpopularity.

Judy, the Duke administration that manipulated and abandoned the members of the 2005-2006 Duke University Men's Lacrosse Team and the faculty members who vilified them are in business-as-usual mode. That means there is still more to do than be satisfied that the bogus charges were dismissed, the wrongly indicted players were declared innocent by the North Carolina Attorney General and Michael B. Nifong is on defense and no longer Durham County, North Carolina's District Attorney.

There is something very rotten at Duke, it's not generally appreciated and Duke is buying confidentiality in the hope of keeping it generally unappreciated.

To Duke, I say: PEOPLE NEED TO KNOW, AND BRODHEAD NEEDS TO GO!

Thomas Sowell, Senior Fellow at the Hoover Institution, Stanford University, in an article about the Duke case in National Review: "This year, after all the charges have collapsed like a house of cards, the campus lynch mob — including Duke University President Richard Brodhead — are backpedaling swiftly and washing their hands like Pontius Pilate. They deny ever saying the students were guilty. Of course not. They merely acted as if that was a foregone conclusion, while leaving themselves an escape hatch. It is bad enough to be part of a lynch mob. It is worse to deny that you are part of a lynch mob, while standing there holding the rope in your hands."

Duke University President Richard Brodhead, feeling sorry for himself: "It's not every day that a university has to deal with a case with a district attorney framing the issues in an atmosphere of public certainty far in excess of the evidence that that person has."

President Brodhead, framing the issues in an atmosphere of public certainty far in excess of the evidence he had 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."

WRONG!

If Duke did what has been alleged to me, it IS appalling in the worst degree.

I have been advised that Duke told the team members NOT to contact their parents or lawyers.

If so, then Duke gave terrible legal advice, ignored a potential glaring conflict of interest and willfully manipulated (defrauded?) team members.

But, I am told, it is even worse.

Reportedly, key members of the Duke administration told players to tell them everything because they were protected by "the student/university privilege."

THERE IS NO "STUDENT/UNIVERSITY PRIVILEGE"!

If a lawyer working for Duke dared to try to manipulate a player that way, then the North Carolina State Bar should be investigating.

That's not all.

Through depositions related to Mr. Nifong's ethics case, and other information, it came to light that Duke police provided certain information to Durham authorities, including lacrosse players' individual key card records for March 13 and 14, 2006. This information was provided on March 31, 2006, two days after a meeting between Durham authorities and senior officials of the Duke police department.

In providing this key card information without notifying the players, Duke violated FERPA and, reportedly, its own privacy rules (unless white male lacrosse players are an exception to the rules).

There are no transcripts of North Carolina grand jury proceedings, but this information reportedly was used to secure unwarranted indictments.

Mr. Trumpbour: "[T]he principle beneficiary of this bit of theater would not have been Mike Nifong. He already had indictments against three defendants and he could have subpoenaed their records with no difficulty. Nifong had no need to use the records of the other players at trial, because his position at that point in time was that they had been exculpated by the April 4 lineup. Nor would there have likely been any repercussions for him or the police for merely soliciting a violation of FERPA. The real beneficiary would seem to be Duke University because it would provide a legal fig leaf to cover its apparent violation of federal law. Worse, Nifong’s apparent willingness to cover for Duke shows that Duke, through its own misconduct, had found itself entangled in Nifong’s malicious prosecution to the point that its interests had started to overlap with those of Nifong."

BELIEVE IT OR NOT, IT'S STILL WORSE!

Mr. Trumpbour: "[P]robably most disturbing of all, this surreptitious leak of private information occurred at a time when Duke was pretending to support the players, had encouraged them to talk to Duke officials citing a totally fictitious student/teacher privilege and had even hired a local attorney who they offered to the players in an ambiguous relationship meant to approximate that of a defense attorney. Now we see what kind of 'help' Duke was providing the players. No person truly acting in the role of defense counsel would have volunteered this information without a subpeona."

In addition, having told the players not to talk to their parents or lawyers and surreptitiously provided the police with private information without advance notice to the players, Duke stood mute while Mr. Nifong perpetrated a fraud on the court in the prosecution of the indicted players and, as Mr. Trumpbour noted, apparently in Duke's interest. In early June of 2006, the unindicted players and (by then) their attorneys received a letter from Duke notifying them that Duke had received subpoenas requesting that it provide home addresses and certain key card information for the players in connection with the criminal cases against the indicted players, Duke's letter further stated that the players or their attorneys could object to this action, e.g., by filing a motion, and unless this was done Duke would comply with the subpoena and provide the requested information.

Attorneys did file motions and were successful in obtaining a ruling that the information should not be released.

BUT THE INFORMATION ALREADY HAD BEEN RELEASED!

Mr. Trumpbour: "For those who insisted that our criticism of the Duke administration for its lack of public support for its falsely accused students was unfair because Duke was probably concerned about its students and was probably working behind the scenes to help them, guess again. For those who have insisted that speaking out against the conduct of Mike Nifong might work against the University’s interests and expose it to unacceptable risks, look at the risks the administration was willing to take in order to further the interests of those working against the players."

Has Duke offered to reimburse the expense of that successful litigation or publicy apologized to the court for its role in the charade?

Of course not.

To summarize:

(1) Duke had its own agenda, but still took control of the players' defense and deceived the players with a falsehood about a student/university privilege in pursuing its own investigation.

(2) Duke violated FERPA and its own privacy rules by unlawfully providing players' key card information to Durham authorities without notifying the players.

(3) Certain Durham authorities and Duke officials concocted a fraudulent scheme to cover up their unlawful actions by pretending (in effect lying) that the key card information had never been provided and causing the players to unnecessarily engage attorneys to prevent the release of information which had already been released.

Duke Dean pf Students Sue Masiolek is an attorney, and she arranged for another attorney connected to Duke (Wes Covington) to be an intermediary between the players and the police when the players needed unconflicted representation.

On March 25, 2006, Duke Executive Vice President Tallman Trask (ask him about the "student/university privilege") met with parents of players and chastised them for engaging independent counsel for their sons.

Duke's concept of in loco parentis boggles the mind.

According to Detective Himan, he met with Dean Sue in April of 2006 to discuss what she knew about the case.

What was said in that meeting?

Will Duke become the first university sued under RICO?

Mr. Trumpbour: "People, particularly lawyers, keep asking me, 'Doesn’t Duke have access to legal advice?' They are puzzled at how a major university with its own legal staff and a top ten law school on campus could continuously make such horrible mistakes and seemingly lack any appreciation for what was going on in the lacrosse case. Duke does have access to plenty of legal advice. The reality is that the administration does not care. I found this out first hand. In settling with several of the players, particularly in the Dowd case, the Duke administration essentially used University resources to pay for the privilege of doing whatever it wanted. They were not mistaken about the consequences of their actions. It was never going to be any other way."

IT CAN BE ANOTHER WAY! People can sue, conduct discovery and go to trial instead of sue and settle confidentially so that Duke avoids discovery or settle before suit, so that Duke is not embarrassed by the filing of a complaint. Surely people should know that Duke can't buy silence if it's not for sale.

Mr. Trumpbour: "It is impossible to defend the administration’s motives in violating FERPA as somehow a well intentioned attempt to further the cause of justice as it understood it to be at the time. If the administration had truly been committed to justice, it would have pursed it without regard to where it might take them and which side it might be found to lay. Yet, when the time came for speaking up for the due process rights of its students, the administration was silent and remained silent until late December. No, there was never any commitment by the administration to seeing justice done in the lacrosse case at least through December and certainly not in March. In the absence of such a commitment, there was only self interest and playing favorites."

Right again, Mr. Trumpbour! Now how many of the players victimized by Duke will put "seeing justice done" above (to use Mr. Trumpbour's term) "self-interest"?

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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