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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:  August 10, 2007
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Topic category:  Other/General

Duke Case: Truth versus Fiction

In my view, the interests of justice do not call for prosecuting anyone in connection with the taking of the money--for larceny, receiving stolen goods or possessing stolen goods--but they do call for the truth and more than a pass for false accuser Crystal Gail Mangum.

LieStoppers poster Greg:

"There's a big difference between saying that Dave and Collin and Reade 'deserved' these false allegations to be made against them because of what they did, versus saying that, but for a bad decision they made, the thing wouldn't have ever happened.

"This whole 'blame the victim' taboo evolved from those pot-banging-type feminists who claimed that only rape victims are ever blamed for being victimized. This simply isn't true. For example, some insurance policies won't cover loss from theft if there's no sign of forced entry. So if you leave your door unlocked and your car gets stolen, then it sucks to be you. I guess that means the insurance company is blaming the victim.

"I don't think there's anything wrong with recognizing and acknowledging that our bad decisions often have bad consequences. In no way does that mean that a woman who jogs alone at night in a bad part of town down an unlit street deserves to get raped. But some of those pot-banger types would scream that you're blaming the victim if you suggest that jogging under those conditions isn't prudent.

"Well, it's not prudent. In fact, it's kinda stupid if you think about it. But protecting the victim from feeling stupid and foolish and regretful is evidently more important than instilling common sense."

To the extremists among the Duke men's lacrosse players supporters too, apparently so, Greg.

LieStoppers poster kdp:

"I see (am aware of) what has stirred it up, just not the links to some of the comments attributed to [Gaynor]."

Those links are like the evodence of rape in the Duke case: non-existent. It's much easier for critics to pretend that I wrote something else than to deal with what I actually wrote, kdp.

LieStoppers poster emmy954 just demonstrated that very nicely.

emmy954: "I looked at all of Gaynor's stuff last night, and it's obvious that he has done a LOT of GOOD work for the guys. He has written extensively about the case, and the guys-all on his own dime! All this talk about his 'attacking' Dave or the defense, but I've searched, and while there was a fairly strong back-and-forth with Brad via the emails, I have not seen him 'attack' Dave. It's fair imo for him to feel more sympathy for Collin and Reade (I'm not saying 'I' agree, but it's HIS prerogative to feel this way), and it's fair imo to ask questions about the statements and the money (many here commented when the captain's statements were posted that there was some confusion as to the money, and some other points-which was to be expected imo, with three different men writing what 'they' saw)."

Unlike my fulminating critic Jennifer N ("Gaynor can go take a flying ****"), emmy954 cited my actual writing instead of mischaracterized it.

emmy954:

"Here's some of Gaynor's stuff...

"August 5, 2006

'I do not excuse any of the bad behavior of any member of the 2006 Duke Men's Lacrosse Team, whether it was a violation of law (examples: underage drinking or excess noise) or a violation of decency (examples: hiring strippers, a racist joke about 'a fine cotton shirt' or a vile email that apparently was an attempt at humor).

"But, it does not follow that any of the members of the 2006 Duke Men's Lacrosse Team kidnapped, raped or sexually assaulted anyone.'

"Also from the same article...

'I award the "smartest legal strategy" accolade to David Evans' legal team, for recognizing that the best thing for his defense would be for him to appear in public and profess not only his own innocence, but the innocence of Collin and Reade, and explain that the charges against all of them had resulted from "a fantastic lie."

"'snip'

'David was guilty of hiring the strippers, but he was NOT guilty of kidnapping, rape or sexual assault. He appeared to be innocent and indignant.

'Collin and Reade likewise are not guilty of kidnapping, rape or sexual assault, and they were not responsible for hiring the strippers. David was an innocent man professing his innocence, not a thespian putting on a performance. Collin and Reade could have done the same sooner, and should have been encouraged and helped to do so instead of told to be quiet.'

"August 26, 2006

'Senior co-captain David Evans could have saved the 2006 Duke University Men's Lacrosse Team's season and spared sophomores Collin Finnerty and Reade Seligmann suspension, them and finally himself indictment, and all of them and their families and friends the resultant notoriety, anxiety and/or exorbitant expense if he had refused to hire and host strippers last March. But, (1) he obviously did not foresee what would happen; (2) he did his best after the false gang rape claim was made to refute it, including making a powerful public statement proclaiming the innocence of the Duke Three and pronouncing the false claim a "fantastic lie"; and (3) framing three scapegoats for heinous, non-existent crimes is manifestly excessive punishment for hosting and/or attending a party with strippers (an experience that is not limited to Duke University or men's college teams).

'That 2006 Duke Men's Lacrosse Team party last March was shameful, to be sure, but there was no rape, either gang or individual, and the pressure put on members of the team to pretend that there a gang rape, lest they be indicted themselves, was a severe challenge that the members of the team met, heroically.'

"July 28, 2007

'Ironically, David Evans' written statement indicates that there was some larceny that night and North Carolina does not distinguish between petty larceny and grand larceny. North Carolina General Statutes, Chapter 16, ß 14 70: "Distinctions between grand and petit larceny abolished; punishment; accessories to larceny. All distinctions between petit and grand larceny are abolished. Unless otherwise provided by statute, larceny is a Class H felony and is subject to the same rules of criminal procedure and principles of law as to accessories before and after the fact as other felonies.'

"'snip'

'Mr. Nifong had reasonable grounds to investigate the possibility of larceny and to consider whether taking back money believed to have been paid to strippers under false pretenses for a 2 hour show that lasted but a few minutes should be prosecuted, but instead he put that aside to pose as the champion of a black woman who had falsely claimed gang rape, even though there was no rape.

'Ironically, Mr. Nifong breached his duty and betrayed his constituents in two ways: (1) by pursuing bogus charges and (2) by not pursuing the possibility of larceny. But Freda Black would have won that Democrat district attorney program if Mr. Nifong had announced that Ms. Mangum's gang rape report was false, but there were possibilities that the strippers had taken money under false pretenses and someone had taken some of it back without consent."

emmy954 opined that I have "MORE credibility, because one thing some 'Duke Three'ers' (to use Cash's words) have been accused of is being just hacks who see NOTHING but purity and saintliness from the players."

Note to emmy954:

Thanks. I try to be objective, not blind. I'm an advocate for values, not an apologist for particular persons.

Also, I may have originated the "Duke Three" expression. In "Kimberly Guilfoyle: Good words for Nifong, guilt by association for the Duke 3," posted on June 26 (six days after I first reported the multiple male DNA), I took Ms. Guilfoyle to task for "undeserved praise for Mr. Nifong and a guilt by association campaign against the Duke Three." www.disbarnifong.com, operated by a Finnerty family friend, later used "Duke Three" on the back of a shirt ("Free the Duke 3") and bumperstickers. Full disclosure: I was sent a free shirt and a free bunch of bumperstickers by the generous webmaster.

Finally, when there was a call early this year for the pursuit of larceny charges (and Cash Michaels was making much of Brad Bannon allegedly ducking a question), I wrote "Duke Case: From Phony First-Degree Felony Charges to Phony Petty Theft?," posted on February 6, 2007 at www.webcommentary.com (but not at www.renewamerica.us, unfortunately) and, in view of what "the Duke Three" had been wrongly put through, mocked the notion of pursuing a petty theft claim against ANY of them (yes, including David Evans).

"Mr. Michaels: 'While he was quick to both admonish and challenge the questioner on every other item of contention, Bannon never even denied in his on-the-record written response the allegation that at least one of the LAX players took money out of her bag at the party.'

"Is a non-denial by an attorney in a written response to the press now evidence of guilt?

"Mr. Michaels: 'It was the only subject in his long list of answers that Bannon ignored.'

"Did the questioner follow up at the time or wait until later to use the non-response to buttress a bogus robbery charge that is a desperate attempt to afford a modicum of credibility to a prosecution that has been a persecution?

"Mr. Michaels: 'Sources say there may be good reason.'

"'[M]ay'?

"What sources?

"When The Johnsville News made what Mr. Michaels and I both considered an unfair attack upon him, he and I not only agreed that the charges were unfair, but making them anonymously was even worse.

"Now Mr. Michaels is according respectability to anonymous sources!

"Mr. Michaels proceeded to offer an account 'from a variety of sources over the past five months' of what 'is alleged to have occurred between 12 midnight and 12:25 a.m. on March 14 at the lacrosse party:'

"What matters is what happened, not what is alleged to have happened.

"I will not review Mr. Michaels' account, lest I omit something, other than to say that a key element of larceny--criminal intent--seems to be missing and that I am perplexed as to how the strippers could have been paid a few minutes into their performance and somehow left the money in 'the bathroom where they made themselves up prior to performing' based on the account.

"Mr. Michaels: 'Sources confirm that a March 22 interview session between the LAX players and Durham police investigators was indeed canceled, in part, because attorneys for the players and their parents did not want questions asked about the missing money, or who brandished the broomstick.'

"It's amazing what anonymous sources profess to know!

"Mr. Michaels: 'While LAX players now tell the press that they wished they would have been allowed to speak 10 months ago so it didnít appear like they were hiding something, they still wonít address specifics about what did, and did not happen at the party, except to insist that no rape or kidnapping occurred.'

"It's not every prosecutor who does what Mr. Nifong seems to have done: create liability to a civil suit to follow a perverse prosecution. Specifics will be addressed at a suitable time.

"Mr. Michaels: 'Whether the special prosecutors will follow up on the missing money is unknown.'

"Having seen the error of Mr. Nifong's ways (and some of the results), they would have to be insane to pursue another bogus (and petty) charge!"

Mr. Bannon and I both had copies of Mr. Evans' written statement at the time. Mr. Bannon reportedly chose not to respond to Mr. Michaels' about money-taking (a sensible choice). I chose to make the strongest case against pursuit of a larceny charge I could without going over a certain line.

Those who do not share my values are free to criticize them, but throughout the Duke case I have tried to be objective and fair while respecting confidences and parameters. That can irritate different people at different times.

In "Duke case: Follow money discover all, do justice," posted on July 1, 2007, after the publication of the co-captains' written statements by LieStoppers without any help from me), I was free to write about them and so I wrote:

"I am NOT an apologist for the 2005-2006 Duke University Men's Lacrosse Team, however.

"Only those hired for the purpose should be.

"I prefer that the whole truth be known and believe that the players as a group will be the better for it and any who prefer otherwise (that is, want to conceal part of the whole truth) ask too much (as Duke University does, when it demands confidentiality as a settlement condition).

"I do not claim that any team member is perfect. All of them are human (and young). I have consistently criticized the bulk of them for behaving badly, to varying degrees, when they partied during spring break in March of 2006. Their parents, their former coach and their girlfriends deserved much better from them, and they deserved much better from themselves. But not all team members even attended the party, one left with his girlfriend before the strippers arrived (good for him!), few who stayed behaved rudely and not all even knew that strippers had been hired or wanted strippers to be hired.

"Like everyone else, each team member is an individual responsible for his conduct, but not for the conduct of others. None of the team members is a rapist, kidnapper, sexual abuser or robber deserving prosecution, much less persecution; and all of them are victims, not only of a false accuser, a rogue prosecutor and manipulated judges and grand jurors, but also of political correctness gone wild in the media and even at Duke University, which owed them due process and fairness.

"I disapprove of stripper parties, underage drinking, facilitating underage drinking, N word use (even in retaliation), crude suggestions (sexual or otherwise), vulgarity (even in private email), and petty theft, but I disapprove much more of bogus criminal charges, abuse of power, corruption of the criminal justice system and an attempt to frame people and imprison them for decades. All that was so before and since the party and it's going to continue.

"My support of the team members, both indicted and not indicted, against false charges, media hysteria, prosecutorial abuse and reverse racism was not approval of any conduct of which I disapprove, but what I considered the right thing to do in the exigent circumstances. (When a person is drowning, you throw that person a life preserver without asking whether he or she went swimming where he or she should not have been instead of lettinghim or her drown for trespassing.)

"I, for one, want the whole truth about the so-called Duke lacrosse case came to become known and all individuals and entities with civil or criminal liability to be held accountable in all appropriate forums, not just Durham County, North Carolina District Attorney Michael B. Nifong. Thus, I loathe United States Attorney General Alberto Gonzales' failure to order a federal investigation even now and the confidential settlements that Duke quietly negotiated in order to avoid discovery and trial (and even a publicly filed complaint by the families of the indicted scholar athletes), because this truth should not be confidential and silence about wrongdoing (especially of such magnitude and general interest) should not be purchased or sold."

In my view, the interests of justice do not call for prosecuting anyone in connection with the taking of the money--for larceny, receiving stolen goods or possessing stolen goods--but they do call for the truth and more than a pass for false accuser Crystal Gail Mangum.

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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Copyright © 2007 by Michael J. Gaynor
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