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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:  September 4, 2007
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Until Proven Innocent: It’s about truth

Don’t expect a Pulitzer Prize to be awarded for Until Proven Innocent, but demand it anyway.

September 4, 2007 is the release date of Until Proven Innocent, by Stuart Taylor, Jr. and Robert K.C. Johnson. It is THE book on the so-called Duke lacrosse rape case, which is NOT about actual rape or lacrosse and to which Duke was not a party, but for which Duke bears much responsibility for telling its students not to talk to their parents or lawyers, secretly cooperating with the prosecution that was a persecution and actually encouraging the extreme political correctness rush to judgment at the expense of its scholar-athletes). On THE book's importance, Left and Right agree. Compare "Anyone interested in this travesty of a prosecution simply must read this book."--Jeralyn Merritt, criminal defense attorney and publisher, TalkLeft (posted on Professor Johnson's Durham-in-Wonderland blog) with "I just received a review copy of Until Proven Innocent....Buy this book!"--La Shawn Barber, posted at La Shawn Barber's Corner.

This book is hardly right-wing (although that would have been especially fitting in the circumstances). Rather, it is factual and focuses on plenty of facts that conservatives are pleased to have highlighted, while warning liberals and moderates who also care about actual facts of the grave danger posed by the so-called "higher truth" advocacy on the Far Left exemplified by then North Carolina Central University student Chan Hall's contemptible claim that Duke students should be prosecuted "whether it happened or not" as "justice for things that happened in the past" and Newsweek's Evan Thomas notorious remark about his magazine's initial reporting on the Duke non-rape case: "The narrative was right but the facts were wrong."

The titles of nearly all of the twenty-five chapters signal that in THE book about the Duke case words were not minced: "An Ugly Scene: Duke Meets Durham" (2), "So Many Stories, So Few Injuries" (3), "Police: Building a Case Without Evidence" (4), "Cops Ignite Firestorm, Duke Runs for Cover" (5), "The Most Dangerous Power: Enter Nifong" (6), "Academic McCarthyism" (8), "Politically Correct Sensationalism" (9), "Richard Brodhead's Test of Courage" (10), "Politics Trumps Law" (11), "Blind Injustice": Indicted After Proven Innocent" (12), "Nifong Defeats the Evidence" (13), "Experts Vindicate Laxers, Duke Harasses Them" (14), "'Fantastic Lies'" (15), "Lacrosse Reinstated, With Disrespect" (16), "Nifong Defies Gravity, With Help From Friends" (17), "Nifong's Pyrrhic Victory" (19), "The Conspiracy Unravels" (20), "No Isolated Case: From Duke to Death Row" (23), "Presumed Guilty: From Duke to Death Row" (23) and "The Assault on Excellence" (25).

THE book will especially gladden the hearts of members of the family McFadyen. If there is a McFadyen Family prize, it should be awarded to Until Proven Innocent. It should be required reading at Duke, especially for the administration and faculty, not vile American Psycho, prescribed reading at Duke that defenseman Ryan McFadyen powerfully demonstrated can have unforeseen untoward consequences for readers.

Why?

Without fanfare, but with authority, Until Proven Innocent lifted the cloud of suspicion that hovered over Ryan as a result of co-captain David Evans’ written statement suggesting that either Ryan or teammate Peter Lamade had taken money that previously had been paid to a stripper hired to entertain at an off-campus team party during spring break that never should have been held, much less made mandatory, and ensnared unfortunate underclassmen who did not even know what the “entertainment” would be until they were told after they came to contribute their share toward the cost.

How?

By stating unambiguously that the one who took the money was NOT the one who came to David Evans with the idea of taking the money. The one who just thought about it is Ryan, who is not an attorney’s son. David, who is an attorney’s son, immediately warned Ryan off that kind of unlawful “self-help” by reading him the riot act, calling him “stupid” (the idea was, Ryan’s not and David hosted the mandatory stripper party) and pointing out that the stripper’s driver might have a gun and kill them if the money was taken. Naturally that put an end to the idea for team player Ryan. But David still listed Ryan first in giving two names of suspects to the Durham police for their consideration.

That listing, together with Ryan’s notorious, but much misunderstood and NOT racist, private e-mail to all his teammates, permitted the prosecution/persecution to put Ryan in a no-win situation: help the prosecution, by pretending that some of his teammates had attacked false accuser Crystal Gail Mangum and perjuring himself, or have that private e-mail revealed to the world, humiliating him, mortifying his parents, embarrassing his younger sisters, making him and his teammates look like sadistic monsters, inviting Duke to scapegoat him by suspending him and perhaps getting him killed by a would-be vigilante.

Cooperating with the frame-up might have been very tempting, but to his eternal credit, Ryan bravely decided to tell the truth and to refuse to perjure himself. He, his family and his teammates took a brutal hit because he did it and then that e-mail was publicized, completely out of context, in retaliation for Ryan’s truthfulness giving Mr. Nifong a fit.

The truth also is that Ryan did NOT take the money and that too should be known, even though the revelation may make some groan. If there is one lesson to be learned from the Duke case, it is that the innocent should be exonerated as soon as possible, especially an innocent young man who stands up for the truth, even though some selfishly would prefer doubt or confusion to persist.

At the "The Duke Lacrosse Case: A Rush To Judgment and Journalism's Future" program held on May 22, 2007 at the National Press Club, moderator Alicia Mundy shared a revealing anecdote about America’s top legal commentator, Stuart Taylor, Jr.

Hero of the Hoax La Shawn Barber reported it this way: "Taylor, columnist and co-author of Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case, realized very early on that prosecutor Mike Nifong didn't have much of a case. He rushed a column to print in April 2006, worried that his column might be old news and others would beat him to the punch with this revelation. Taylor assumed many other journalists had reached similar conclusions, and he wanted to get his piece in. He was wrong. His was the only opinion piece from a member of the mainstream media (MSM) who was skeptical about the case."

Mr. Taylor was skeptical for good reason. A classmate from his Princeton days (where Mr. Taylor was on the rowdy rugby team) had contacted him with an assurance that the gang rape claim was false and an invitation to look into the situation. That former classmate (Larry Lamade) is a former general counsel of the Navy Department and the father of an unindicted player (Peter Lamade).

Figuratively, Mr. Taylor put on a white hat and road to the rescue of the young men being vilified by the extreme political correctness mob led by his former employer, The New York Times. Mr. Taylor even decided to take a sabbatical from his duties at National Journal to write a book on the Duke case. He e-mailed me at the end of May of 2006 about his decision to write it (his first book). I emailed back, in essence, that his news was great (specifically, “I'm delighted. You picked a gem. There's more to this that the media has publicized (or I have put in print)).”

About a year ago I wrote: “Instead of giving a Pulitzer Prize to The New York Times for undermining national security in the name of freedom of the press, the committee should award one to Professor [Robert K.C.] Johnson for his body of work on the Duke case."“Durham-in-Wonderland” was created as a result of the Duke case and became a wonder itself.

Understandably, Mr. Taylor, a brilliant attorney and very distinguished legal commentator, invited Professor Johnson, an historian but not an attorney whom Mr. Taylor earlier had called "brilliant" and "obscure," to be his co-author.

The result is Until Proven Innocent, a labor of love about the truth that is eligible for and worthy of a Pulitizer Prize.

Alas, it’s hard to believe that the Taylor/Johnson book on the Duke case will win a Pulitizer Prize. The book’s subtitle alone, “Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case,” is disqualifying with the crazed political correctness crowd who bear much responsiblility for the undeserved ordeal that was the Duke case, but still influence such awards.

The authors may have kept their remote Pulitzer Prize chance alive by not calling the Duke case “a Democrat scandal” (which it surely was). But they must have extinguished it by referring to the black bloc vote (which motivated the rogue prosecutor to play the race card shamelessly by trying to railroad three innocent young men on bogus charges in order to keep his job and maximize his pension by winning a Democrat primary election and then the general election in overwhelmingly Democrat Durham County; induced the North Carolina NAACP to abandon its honorable principles concerning due process and fairness; kept those bogus charges pending for more than a year, the exculpatory DNA results notwithstanding; and helped to persuade the Democrat North Carolina Attorney General to give false accuser Crystal Gail Mangum (“the Tawana Brawley of the South”) a pass on her false gang rape report. (Tawana Brawley got one too.) The authors left unsaid that the black bloc vote is habitually Democrat and much in need of enlightenment, but they deftly eviscerated extreme political correctness and even courageously castigated The New York Times. Don’t expect a Pulitzer Prize to be awarded for Until Proven Innocent, but demand it anyway.

The greatest strength of the book is that the book itself--as distinguished from the publisher's press release--makes it very clear that the idiocies on display in the book are overwhelmingly of the left-wing variety and that’s not the way to court a Pulitzer Prize. (Perhaps there WAS a way: if they had blamed the Duke case on…Tom DeLay!)

Unfortunately, a casual reader might be misled by the way the political aspect of the Duke case is treated. The truth is that (1)a small group of people spanning much of the political spectrum initially supported the players and fairness to them,(2) the persecution of the players came from the left, not the right, and (3) the right defended the persecuted players much more strongly that the book reported.

Young defense lawyer Brad Bannon, reported by the authors to be too liberal to be a Democrat, is cast as the hero of the story (for finding in November of 2006 what I had reported three times during the summer of 2006, even though, the authors reported, Mr. Bannon claimed to be “the most thick-skulled person you know when it comes to science and math, and…got [his] undergraduate degree in English without taking any math classes and…only one biology class about marine life.” The authors did not report that Mr. Bannon is too gullible to be a Republican, but it was only after the book was written that Mr. Bannon testified during the hearing that resulted in the disbarment of former Durham County, North Carolina District Attorney Michael B. Nifong that as of September 22, 2006 he did not think he would find evidence of multiple male DNA because he trusted Mr. Nifong’s word as an officer of the court. Thanks be to God that the Duke Three (Reade Seligmann, Collin Finnerty and David Evans) were all innocent on all of the bogus charges on which they were indicted and the late Kirk Osborn, then Reade’s lead attorney, was (1) smart enough to realize that under the extraordinary circumstances the case had to be won in the courtroom of public opinion first and (2) bold enough to move to remove Mr. Nifong from the case even though the lawyers for the other defendants did not join his motion. Rest in peace, Mr. Osborn. You exemplified the ideal lawyer.

To be sure, O.J. Simpson’s "Dream Team"’s undesirable, but undeniably skillful, accomplishment in having their infamous athlete-client acquitted on double murder charges involved much more adroit lawyering than the lawyering that ultimately resulted in having baseless charges dismissed against wrongly indicted scholar-athletes. (Thwarting justice tends to require greater skill than demonstrating the truth.)

At the Independent Women’s Forum program on the Duke case, Mr. Taylor was asked, “Without bloggers, what would have happened in the legal system?,” and answered, "The case would have gone to trial and likely ended with a hung jury."

Sad, but likely.

Fortunately, (1) bloggers were up to the task and (2) the evidence of framing by deliberate concealment of exculpatory evidence finally was obtained, thanks to Judge Osmond Smith; recognized, with or without expectation; and effectively utilized by Mr. Bannon and Jim Cooney to win the case in the courtroom of public opinion, leaving Mr. Nifong publicly disgraced and soon asking to be replaced (ironically, not long after Mr. Cooney futilely had tried to placate the evil Mr. Nifong by withdrawing the bold and well-founded motion to remove him from the case that the late Mr. Osborn had made).

That said, over-praising some defense lawyers, overemphasizing what some on the left did right and omitting what some on the right did are relatively small flaws in an awesome book and to be expected from authors who are not conservatives, freely acknowledged “the extraordinary cooperation of all three defendants’ legal teams” and including a professor who proudly posted that he never had voted Republican and has enthusiastically supported Senator Obama. (Full disclosure: Giving Senator Obama full credit for quietly calling for a federal investigation after prodding by a LieStoppers poster is something I too did, but the fact is that most of the few who supported the federal investigation call were Republican Congresspersons and readers would not learn that from the book. The authors DID name both Democrat Senators who supported it, but only one of the Republican Congresspersons, Walter Jones, who was the first to publicly call for it and inspired a Liestoppers poster to suggest in writing the idea to Senator Obama and then post the Senator's response.)

Worse is any implication that conservatives generally were gulled or equally at fault with leftists. See, for example, this statement at page 184: “Conservative MSNBC host Joe Scarborough, showing the versatility of cable news at spewing venom from the right as well as the left, announced: “The ax falls at Duke as two star athletes are busted on rape charges adding to an ugly all-star team of accused rapists, wife beaters and murderers who have filled the ranks of college and professional sports teams over the past several years.” Leftist MSNBC did have Mr. Scarborough read that statement, but readers should not be deceived into thinking that conservatives were part of the political correctness mob that vilified the members of the 2005-2006 Duke University Men’s Lacrosse Team as rapists or protectors of rapists (although conservatives don’t tend to champion stripper parties or underage drinking) and MSNBC, led by liberal now General Manager Dam Abrams, turned around quickly on the Duke case after Mr. Abrams examined “the evidence.”

Book publisher St. Martin’s Press: “Until Proven Innocent is the only book that covers all five aspects of the case (personal, legal, academic, political, and media) in a comprehensive fashion. Based on interviews with key members of the defense team, many of the unindicted lacrosse players, and Duke officials, it is also the only book to include interviews with all three of the defendants, their families, and their legal teams.”

True. But comprehensive is not necessarily absolutely complete, the authors acknowledged that otherwise cooperative defense lawyers did not share “matters that had been placed under seal by the court or were confidential as a matter of law or professional ethics,” and when they finished the book manuscript, LieStoppers had not posted the written statements that the co-captains had given to the Durham police, including co-captain David Evans’ statements implicating two of his teammates in the taking of money that previously had been delivered to the strippers in the expectation that they would provide a satisfactory 2-hour performance and the authors apparently were treating those statements as confidential.

"Deep Throat" (Mark Felt) wisely advised famed investigative reporters Bob Woodward and Carl Bernstein to follow the money in the Watergate matter, but the authors were vague about what happened to the money in the Duke case: “Back at the party, one guy told Evans he wanted to take back the money from Evans’ bathroom, where Mangum had left her things. Another went into the bathroom and grabbed some money. Evans said this was stupid because her driver would come back with a gun and kill them. He took the money, gave it to Flannery, and told him to return it to the women. It’s unclear whether that’s happened.”

David Evans was NOT so vague in his written statement, In addition to identifying Peter Lamade as the one who “joked that [stripper Kim Roberts] should use a broom he had” (and not for sweeping), he identified “the guy [who] told [him] he wanted to take back the money” as Ryan McFadyen, but when it came to identifying the taker, he wrote that Peter Lamade came to him with the money, but he did not know whether “Ryan or [Peter]” took the money (without explaining why he mentioned Ryan first, even though he had instructed Ryan not to take the money and Peter was the one who brought it to him). Regretably, the authors did not report that David had read the riot act to Ryan earlier, only that he said much the same to Peter (not identified by name by the authors, but by David in his written statement) when Peter came to him with taken-back money.

The authors protectively did NOT identify “broomstick boy,” or “money taker,” or “N word user,” or “grandfather’s cotton shirt guy,” or the admittedly ashamed player (NOT Ryan) who had used what he called “insensitive language” in a private, post-party e-mail, but, as stated, the authors DID report that “money taker” was NOT the one who came to David with the idea, but “[a]nother.” That’s my conclusion too and the good news is that it should remove the suspicion of Ryan created by David’s statement.

Ironically, the money that I understand was taken from an open purse in that bathroom was the money of false accuser Crystal Gail Mangum, NOT the second stripper, Kim Roberts, who had disparaged Peter Lamade’s manhood after he had inquired about sex toys and before he suggested the use of a broomstick (a remark that Reade Seligmann, the authors reported, rightly, in my view, considered "repulsive" and "offensive").

It appears that the same player made the broomstick remark and took the money (NOT from the second stripper, but from Crystal).

Apparently a combination of a stripper party, a sense of being scammed and alcohol overcame good sense.

The taking of money even from a stripper who took the money under false pretenses can be larceny.

As stated in the seventh edition of A Treatise on the Law of Crimes (Clark and Marshall), published in 1967 (and one of my law school books): "Property Unlawfully Acquired or Possessed. — The fact that property has been acquired or is possessed unlawfully, or even criminally, does not deprive it of its character as property, or outlaw it, so as to withdraw it from the protection of the criminal law, and prevent it from being larceny to feloniously take and carry it away. It has been held from a very early day that property may be stolen from one who has himself stolen it, and that the indictment may lay the ownership in him."

As stated, the authors reported, “It’s unclear whether” co-captain Dan Flannery, tasked by David Evans to return the taken money, returned it.

But David Evans’ statement IS clear that he did NOT return it all: “When we got back Danny gave me $260 that he still had from what was taken. I gave him a $100 bill because he had paid extra. He won a $100 game of beer pong. I put the $160 in my desk, and the next day put it on our living room table.”

Some say that proving a larceny-related charge would be impossible, envisioning a Duke-Blue “wall of silence” obstructing justice. First, whether or not a crime was committed is distinct from whether or not that crime can be proven beyond a reasonable doubt and the truth remains the truth regardless of what is provable in court. Second, the charge that there was a “wall of silence” in the Duke case was made by political correctness nuts and race hustlers and utterly unfair in the circumstances. I don’t presume that the team members think that any of them should be treated as above the law. If I thereby give some players too much credit, better that than assume that the extreme political correctness attack on their general good character was warranted.

Unfortunately, the authors minimized the work of conservatives in exposing the Hoax, while overemphasizing that of “centrists and moderately liberal thinkers.” (Full disclosure: the authors graciously acknowledged conservative me as one of “several astute bloggers who helped inform us via private exchanges as well as the Internet,” although my multiple male DNA reports apparently were missed or not appreciated, and one “on the political right [who] also pounded prolifically away with well-argued critiques of Nifong and his Duke and Durham enablers.” But The New York Times’ David Brooks and I hardly were the only conservatives writing the right things with respect to the Duke case.)

In their “Turning the Tide” chapter, the authors wrote at length about Talk Left, a blog run by leftist criminal defense lawyer Jeralyn Merritt, opined that “most of the pro-defense commentary came from centrist and moderately liberal thinkers, and consigned conservatives (naming only me) to the “also pounded prolifically away” category. Conservatives like Sean Hannity perceived the Hoax and repeatedly said so, while the likes of hopeless liberal Alan Colmes held out hope that there might be evidence of guilt hidden in the documents Mr. Nifong had produced.

To be sure, Ms. Merritt clearly saw what really was going on and said so emphatically. This appraisal of the case by her, posted at Talk Left, is especially insightful:

"[T]here were two events that led to the downfall of Mike Nifong. One was the quick action taken by Reade Seligmann's father to obtain all of the crucial alibi evidence. Without that quick action, we know the DPD would not have looked for the evidence. The bank would have erased the video, Elmostafa would have forgotten that night, the fast-food receipt might have gone missing, etc. Most importantly, that air-tight alibi, the best alibi in the history of alibis, went on MSNBC and turned public opinion.

"The second crucial event occurred with the Brad Bannon/Jim Cooney cross-examination of Brian Meehan. That set off a chain of events that led to the immediate downfall of Nifong and the Attorney General's proclamation of 'Innocent.' I believe that Linwood Wilson was going to rehearse Mangum with the lineup pictures that fell out of his briefcase, and that Nifong would have gone forward with an attempt at an in-court identification."

Fortunately, Reade's dad realized that the case had to won in the courtroom of public opinion and the late Kirk Osborn was the kind of man (and lawyer) that he was and not only publicized Reade's alibi, but publicly demanded that Mr. Nifong be removed from the case based on his misconduct. Remember, (1) the other defense teams did NOT join in that bold motion and (2)Collin had a solid alibi too, but it was NOT made public (out of a well-founded fear that the prosecution was dishonorable and would do its worst to avoid the implications of the alibi, like changing the timeline, and as a common strategic choice). Sadly, that inevitably contributed to the suspicion that while Reade had been misidentified, in the words of Duke President Richard Brodhead, what happened was "bad enough."

The authors' tribute to Ms. Merritt, a white liberal, was deserved, butLa Shawn Barber, the astute black conservative woman who surely should not have been ignored, went unmentioned. (As an astute black conservative woman, La Shawn probably will be disappointed, but not shocked, by that glaring omission.)

The authors, La Shawn and I each independently went public with our views on the Duke case in April 2006, but La Shawn was first and she was great. (The authors began the book by writing at length about Devon Sherwood, the team's only black player, which was fitting. Their omission of La Shawn is inexplicable to me.)

Example: La Shawn, April 11, 2006

“The ‘Duke Rape’ case has been salaciously splashed all over the news. Although black-on-white rape is much more common than white-on-black rape, there’s something about the idea of a white man raping a black woman that brings out the retro speeches about slavery, white privilege, patriarchy, and the usual revisionist tirades.

“If this woman (who is no lady, as someone referred to her) was actually raped, I hope the perpetrators are prosecuted to the fullest extent of the law. But I was suspicious when I first heard about the incident. Knowing that blacks would believe the woman’s story before the relevant facts emerged, I avoided blogging about it until now.

“(Pet peeve: A lady is a certain kind of woman; a gentleman is a certain kind of man.)”

”Last month two black strippers worked a party given by members of Duke University’s lacrosse team. One claims to have been gang-raped and beaten by several white members. As expected, the alleged incident has sparked ill-informed and premature outcries of racism and irrelevant rants about historic victimization by the white power structure, or something like that.

“In my deeply-held opinion, much of the outrage is based not on what may have happened to the stripper but on class envy and covetousness. A heavily black city (Don’t rely on news stories! Considering that blacks are only 13 percent of the pop., Durham is considered ‘heavily’ black.) resents the heck out of the predominantly white private university in its midst, and a rape allegation provides an excuse to throw accusations of racism. Some of Duke’s black students, many of whom were probably admitted on a separate admissions track euphemistically known as ‘affirmative action,’ have joined the madding crowd. No one, of course, wants to wait for the evidence except the prosecutor, who hasn’t charged anyone.

“But is it true, or is this just another Tawana Brawley-type hoax?..."

“Right or wrong, an alleged rape victim’s character is always at issue. I’m not so quick to believe a woman (regardless of color) who takes off her clothes in front of strangers for a living. No one deserves to be violated, of course, but if you’re taking off your clothes and gyrating in front of a group of drunk men (regardless of color)…

“Now, let’s talk about racial double standards. I laughed out loud when I read that Duke’s president met with ‘black leaders.’ A rape accusation has been leveled. Does it really matter what color the people are? Apparently so. Black people can be such babies, can’t we? We need to be placated and coddled like whiny toddlers. If the evidence reveals there was no rape and the stripper made up the whole story, will ‘black leaders’ make a public statement about it? What about a private apology-chat with Duke’s president? Care to wager?

“As I mentioned before, black men raping white women is much more common than the other way around, but when was the last time a football team canceled its season? Other college rapes, that is, black-on-white rapes, don’t get a fraction of coverage…. Remember thuggish Lawrence Phillips, a black football player who had a penchant for beating up white women? The media barely reported those stories.

“And what about ‘hate crimes?’ Although whites are the most likely hate crime victims, the only so-called hate crimes that get blanket coverage involve black victims and white perpetrators.”

To the authors: Omitting La Shawn from the definitive book on the Duke case is something for which “gentlemen” will be quick to make amends to the lady whom Michelle Malkin dubbed “Sweetheart of the Blogosphere.” Omitting to report that a blogger (me) had repeatedly reported (a fact, not a fabrication, some found inconvenient) the multiple male DNA months before the defense team reportedly realized and perhaps even suspected it was there to find was a failing, but not giving the righteous lady whom Mr. Nifong learned to rue her due should be grounds for jailing (almost).

I’d rather have La Shawn with me, as well as conservative Forensic Nurse Extraordinaire Kathleen Eckelt (mentioned), pro-life libertarian Bill Anderson (mentioned), the brilliant conservative ladies at Independent Women’s Forum (which hosted a discussion of the Duke case at which Mr. Taylor spoke, but did not receive a mention in the book), ultra conservative radio host Dino Costa (unmentioned), Jon Ham (Mary Katharine Ham’s father) of Right Angles (unmentioned), conservative commentators and Duke Hoax exposers John Leo (unmnetioned) and Thomas Sowell (mentioned), and the incomparable Notre Dame lacrosse player/Marine/trial lawyer Mike McCusker (Crystal Mess), who described himself as "[t]he oldest of five children raised under the rigidly expectant, impossibly strict, Bronx, pre-Vatican II Irish Catholic, middle-class, Marine Corps, there-is-right-there-is-wrong-there-is-black-there-is-white-there-is-no-grey world view of the Great Santini" (unmentioned), among others).

La Shawn was passionately and profoundly pounding away about the injustice of the Duke case, to the disgust of the race hustlers and political correctness nuts. Long before blogs Durham-in-Wonderland, Friends of Duke University and LieStoppers were created, La Shawn was on the case, unaffected by color, race or sex, calling a disgrace a disgrace.

The Independent Women's Forum's Charlotte Allen also figured out early that the real scandal was the way the players were mistreated and her posts during April of 2006 on the IWF website showed a commendable concern with due process and evidence instead of rushing to an erroneous misjudgment.

From "Presumed Guilty at Duke, Despite Lack of Evidence" (Great title!), posted on April 13, 2006:

"La Shawn Barber is tracking the case of the white Duke University lacrosse-team members accused of gang-raping, sodomizing, and beating an African-American stripper hired for a party on March 14 — a case that looked big until, uh, all 46 white members of the team were DNA-tested and the results came up negative. (The alleged victim claimed that she had lost several fake fingernails torn off as she clawed her assailants in an attempt to escape, and the DNA tests were run on the nails as well as the players.) Nor was there any other evidence of a sexual assault at the party premises, according to police who arrived there one minute after someone called the police to complain about racial threats coming from the house.

"Nonetheless, Durham County D.A. Mike Nifong plans to go ahead and press charges anyway, against somebody or other on the team based on some kind of evidence or other. And the usual array of man-hating fems and whites-hating black demagogues is holding the usual array of marches, candle-light vigils, letters to the editor, and calls for the summary imprisonment of all Duke's white lacrosse players (whose season has already been suspended), even though no charges of any kind have been filed against any of them.

"The situation, as La Shawn points out, is outrageous....

"...La Shawn's got plenty o' links, including this one detailing efforts by the team members and their parents to fight back and this column by John Leo. La Shawn writes:

'The next time a black woman cries white gang rape, people will be more skeptical because the fake rape allegations at Duke will be fresh in their minds. The next time any woman cries rape, people will be more skeptical because the fake rape allegations at Duke will be fresh in their minds. It's not fair, but it's human nature....'

"This fiasco adds fuel to the victimhood fire in America that is already burning out of control. No one is responsible for his own actions, and it's always someone else's fault that we've made a sordid mess of our lives. If you're black, all you need do is tell your sob story to bored, useless 'civil rights' groups like the NAACP, and the jaded, left-leaning media will handle your PR."

From "Mailbag: Crying Rape at Duke," posted on April 17, 2006:

"Several of our readers complain about our cynical coverage of the gang-rape accusation made by an African-American stripper against white members of the Duke University lacrosse team on March 14 — an accusation that has proven problematic, to say the least, when all [46] white members of the Duke lacrosse team were DNA-tested and the results came up negative. That hasn't stopped campus feminists from screaming and Durham, N.C. District Attorney Mike Nifong from planning to press charges against someone or other on the team, despite the absence of any evidence connecting any lacrosse player with sexual assault of the woman...."

Conservatives were far more suspicious of the Hoax and far more supportive of the players and critical of the prosecution than the book suggests.

Fittingly, the book’s epilogue concluded by quoting Lane Williamson, the chair of the disciplinary committee that heard the ethics case against Mr. Nifong, hoping “that the lacrosse case would ‘be a reminder to everyone that it’s the facts that matter.’”

Amen to that! ALL THE FACTS. Even some that embarrass a couple of lacrosse players who have themselves to blame for their bad choices. The right remedy for a fiasco like the Duke case is, in the words of the witness oath, “the truth, the whole truth and nothing but the truth.”

I publicly stated in a May 24, 2006 post, in reply to a thoughtful e-mailer who invited me to look for “evidence of another crime, just a mundane argument, robbery, assault and battery": “I don't see that. But, whatever the truth is, it should come out.”

My position on the truth remains the same, even if a few players may deserve some blame.

Since May 2006, I’ve seen the co-captains’ statements, “broomstick boy” was identified and the statements are now on the record. I’m not blind or biased. I lauded North Carolina journalist and television commentator Cash Michaels (who covered the Duke case for America’s Black press) when he appeared to follow the evidence and asked hard questions of the prosecution and lambasted him for not publicly sharing his conclusion that Nifong had NO evidence with his readers before Election Day 2006. I will follow the evidence where it takes me, whether I like it or not or anyone else does. I say there’s still no evidence of robbery, or assault and battery, but David Evans provided evidence of larceny against ONE player, created a problem for another by tasking him to return the taken money and then giving him $100 of it to keep after he apparently was unable to return it all, and created a problem for himself by giving that $100 to that other person and by putting what was left in his desk draw and then on a table in the house he was co-renting.

Under the circumstances, in my view, it would be an abuse of prosecutorial discretion to pursue larceny-related charges against any player now, in view of what the North Carolina criminal justice system did to each player and their families and Judge Osmond Smith'sdecision to sentence Mr. Nifong to ONE day in jail for lying to him about important exculpatory evidence while trying to convict three innocent young men and have each of them sent to prison for up to thirty years. Even if larceny-related charges had been properly investigated and successfully prosecuted, based on the 82 minutes of jail time served by Nicole Richie, sentencing anyone convicted on a larceny-related charge involving a few hundred dollars taken back without permission walk slowly by a jail and wave seems about right.

BUT, that doesn’t mean that one myth should replace another, or people should be misled to think that taking money back from a stripper is legal, or suspicion should linger over a player whom David Evans wrongly implicated in the unconsented-to taking (Ryan McFadyen), or that more than forty other players should be suspected of committing any felony at that ill-advised spring break party.

The truth put on its boots and caught up to lies and misconceptions. Fortunately, Ryan McFadyen, the unindicted student suspended for a time by Duke for a private e-mail that Mr. Nifong arranged to be made public to punish Ryan and to suggest that the players were monsters, benefited bigtime from that. Bill Anderson reported in “In Praise of Ryan McFadyen” that Ryan had refused to pressured into lying for the prosecution, even though he was made well aware that his unfortunate private e-mail to all his teammmates would be made public and widely misunderstood, especially by those unfamiliar with American Psycho, course material at Duke, and eager to believe the horrible gang rape lie. The authors explained at length in their book that Ryan’s particularly badly timed attempt at sophomoric humor to relieve the tension felt by his teammates as a result of the party (he WAS a sophomore at the time) actually was based on a paragraph in the book and, while vulgar, was much less so that the paragraph. The book quotes both the e-mail and the paragraph. I will not. Blame Duke for selecting vile course material and then suspending a student for writing a private e-mail based on it to his teammates.

In “Putting the Duke lacrosse team party in context,” posted on March 15, 2007, I tried to do precisely that:“It's great (as well as understandable) that the members of the Duke University men's lacrosse team have chosen not to have another stripper party, but, in fairness to the team members, it is important that such parties be put in context and their general good character be appreciated.

“First, such parties are legal, morally reprehensible, in my view, but unquestionably legal in Durham, North Carolina and elsewhere.

“Second, although the 2005-2006 Duke University Men's lacrosse Team's off-campus stripper party last March is the best known, it was not the first by a Duke sports team and Duke stripper parties were not limited to men's teams. (College stripper parties began long before members of the 2005-2006 team were born and were not limited to elite institutions like Duke.)

“As the Hoax was inevitably exposed, hate-filled opportunists who wanted the Hoax to be true shifted to peddling the ‘the players are bad actors regardless’ poison and minimizing the significance of what really happened: a bogus gang rape claim had been made by an ex-convict stripper about to be incarcerated as a danger to herself and, thanks to the media, a malevolent prosecutor and plenty of wishful thinking and willful blindness, widely believed, despite the absence of inculpatory physical evidence and the presence of demonstrable alibi evidence and other ‘hard’ exculpatory evidence.

“Since the vilification of the players was undeserved, it needs to be undone.

“The truth is that the players are not only top athletes who would have vied for a national championship last year, but well above-average fellows from good families who have survived their ordeal precisely because they are well above-average fellows from good families.

“To be sure, none of them is perfect. (If you know someone who is, please let me know.)”

That said, (1) each of the forty-seven team members is an individual responsible for his actions; (2) whitewashing and cover up, though hardly as horrendous as framing people on bogus felonies charges permitting imprisonment for thirty years, are not in order; and (3) critically needed reform of the criminal justice system and elimination of the excesses of political correctness splendidly demonstrated by the authors with respect to the Duke case, depend upon willingness to tell the whole truth and to refuse to accept confidentiality agreements designed to conceal the truth and protect the really guilty.

In “Duke Case: Whitewash or Blackwash, The Dirt’s Covered,” posted on May 14, 2007, I commiserated with Bill Anderson. In "Duke and Durham: The Whitewash Continues," he had “lamented the state of the criminal justice system in Durham, North Carolina and deemed it beyond reform instead of pretending that Durham County, North Carolina District Attorney Michael B. Nifong alone was a fault and a bit of tinkering with the system will do nicely.” I agreed that the Duke case is symptomatic, not utterly aberrational, but hoped (and still hope) that the whole truth can produce meaningful reform.

On December 21, 2006, Larry Lamade addressed the New York City Duke Lacrosse Alumni and Friends, poignantly describing the pain suffered by the players and their families and passionately demanding truth and fairness.

Mr. Lamade:

“Last Easter weekend was one of the worse moments in my life as it was for 46 other families. Nifong had indicated that he was going to indict at least 3 lacrosse players the week after Easter. All the lacrosse families knew the allegations were false, but all had to retain attorneys. We felt like the men of the USS Indianapolis in WWII after their ship was sunk. They bobbed hopelessly in the waters of the Pacific for days while the sharks indiscriminately picked them off. Innocence did not mean that the boys were not vulnerable. We had to protect our sons.

“It was a Kafkaesque moment. The allegations were false, but Nifong said that he was going to indict 3. Your son could be indiscriminately indicted. Multiple choice – no wrong answers. Were you praying that your son not be indicted? Of course. Would there be any relief if he were not indicted? No. Collin, Reade, and David could just have easily been Peter, Ned, and Matt. We were all in this together. The truth had been trampled; the rank unfairness of the situation obvious.

“How could I help? Being an attorney, I knew that the legal bills for Collin, Reade, and David would be sizeable especially if it went to trial. I also realized that all of the other families – most of whom could little afford it – had incurred legal fees as well. Should I create a defense fund? That was obvious, but I thought that it should be more. We wanted to create an enduring testament to these boys who had been treated so unfairly. Our idea was to create an entity that would raise money to help these boys defend themselves but in the future, we also wanted to help others who were subjected to similar injustices. Idealistically, I also thought that this entity might try to prevent such egregious misuse of power from ever occurring. What has happened to these boys should never happen to anyone again.

“We called the entity the Association for Truth and Fairness. ATAF for short. Truth and fairness are simple principles but hard to live by for some. Both of these principles are embodied in the simple phrase, 'do the right thing.' These boys have been abused because those with power and influence have not done the right thing. Failing to do so in the future will inflict further harm as long as this fiasco continues. As truth and fairness are simple principles so is ‘doing the right thing’ a simple concept, but so difficult for the unscrupulous to abide by especially when they have ulterior motives. Doing the right thing is more easily explained by describing what it does not mean:

“It does not mean:

-damaging others for personal gain

-opting for the expedient rather than the ethically correct course of action

-prejudging individuals

-protecting an image in detriment to individual rights

-being disingenuous

-failing to admit when you are wrong”

Right! It means telling the whole truth and being completely fair, not covering up misdeeds and leaving a cloud of suspicion over those who did not do that of which they are wrongly suspected. It does not mean “opting for the expedient rather than the ethically correct course of action,” or “protecting an image in detriment to individual rights,” or “being disingenuous,” or “failing to admit when you are wrong.” Everyone should heed Mr. Lamade’s wise words about truth, fairness and doing the right thing as well as ponder what Jesus said: “A prophet is not without honor except in his own country and in his own house” (Matthew 13:57).

For some (NOT including me) besides Ryan McFadyen, standing up for the truth was perilous. Hero of the Hoax Bill Anderson, of Frostburg State University, duly mentioned twice in the 320-page masterpiece, explained how he was targeted in this TalkLeft post: "[L]et us be honest. The black 'leaders' of Durham and elsewhere had a lot invested in this case. The longer it went on, the worse it got, but there was no backing down. People on the prosecution side were invested in everything but the truth. Now that we see it was the lie that many of us were saying it was, we now are attacked. I don't think I made any false statements in my article. For that matter, I was holding back. I know more than what I have said, but am not free to discuss it. [Aside to Bill: I feel your pain on that score!]

"For a year, I have been called a 'white MF' and other things by people who did not want to admit that this case was a lie. Well, call me a 'white MF' all you want, or anything else, since I don't care. [Note: this man has adopted children from Ethipia and Guatemala; his credits are brainless and/or shameless.] I stood up against Nifong last April when only a few of us were willing to speak out; even K.C. and Stuart Taylor were not on board at that time. It was Mike Gaynor, Wendy McElroy, me, and one or two others. And that was it. On the other side were the Washington Post, New York Times, the major news networks, CNN, the Baltimore Sun, N&O, Durham Herald-Sun, Time, Newsweek, and other news outlets. I was called a lot worse than whatever I am called on this board. I received threats against myself and my family, and people tried to get me fired from my job.

"But I have persevered, and in the end I was proven to have been right all along. I am not sure that others on this board can say the same thing."

Like La Shawn, Bill first posted on the Duke case before the authors (and me). His "Duke, DNA, and the Law: Politics over Principle," posted on April 15, 2006, correctly concluded: "If this situation were not so politically charged, I seriously doubt whether rape charges would follow. Instead, we see something much worse, politics and government in action to railroad people into prison. What happened at the Duke party was ugly, but what has transpired since then is even uglier."

One correction: Mr. Taylor was not quite as quick to post as Professor Johnson, but when he posted, he was right on target and Professor Johnson was not yet fully aware. Compare Bill condemning Duke President Richard Brodhead for "condemn[ing] the players for hiring lawyers" in his first Duke case article, with Professor Johnson, in his first Duke case article, posted the following day, bizarrely reporting that President Brodhead was "looking good" and praising him for "suspend[ing] and then cancell[ing] the lacrosse season," because "based on the most benign interpretations of their actions, many of the lacrosse players were guilty of conduct unbecoming university students and gravely embarrassing the school" as well as "reach[ing] out to students and administrators at NCCU" and "avoid[ing]any rush to judgment." Fortunately, the authors' treatment of President Brodhead in THE book is in keeping with Mr. Taylor's inclusion of President Brodhead in his Duke case rogues' gallery instead of laudatory. The authors: "Brodhead immediately denounced the [McFadyen]e-mail without qualification" and "approved the immediate suspension of McFadyen, with no due process or opportunity to explain" and "did not stop with banishing McFadyen," but "[a]ccelerat[ed] plans that already had been made" and "canceled the team's season once and for all"). The authors rightly castigated President Brodhead for "misleadingly suggesting that these Duke students were racists even while a race-pandering prosecutor was making an identical case to Durham voters and potential jurors".

The book on the Duke case by former Duke lacrosse coach Mike Pressler and Don Yaegar is titled “It’s Not About Truth.” THAT WAS THE PROBLEM! The prosecutor and the Duke administration did NOT care (or care enough) about truth, but instead prioritized “interests” (like winning an election, maximizing a pension, being PC or obtaining a zoning variance). The solution is for the whole truth to prevail without any sanitizing or dramatizing, everyone to learn instead of be stubborn and stern, and corruption to end and society to mend!

Until Proven Innocent is an important step in the right direction.

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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