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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 21, 2007
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Duke Case: Duke's Contemptible Covington Caper

Why would "Dean Sue" bring in Wes Covington to "help" the members of the 2005-2006 Duke University Men's Lacrosse Team in their time of need?

When Duke wanted someone to "facilitate" interaction between the Durham Police Department and the members of the 2005-2006 Duke University Men's Lacrosse Team, Dean Sue Wasiolek turned to her friend Wes Covington.

Amazingly, "Dean Sue" is herself an attorney which makes her advice even more irresponsible, if that's possible.

In Until Proven Innocent, co-authors Stuart Taylor, Jr. and KC Johnson described Wes as "the Duke administration's would-be fixer."

Thanks be to God, the scholar-athletes survived.

Until Proven Innocent: "...Wes Covington...had quietly handled other scrapes for the athletic department in the past. Wasiolek....considered him wonderful. He struck [Coach]ressler as a folksy Southern typed who exuded confidence that he knew how to work the system in Durham."

Co-authors Stuart Taylor, Jr. and KC Johnson also noted that "nobody told the players" about Wes's six-month suspension from the practice of law, but that Wes told co-captains Evans, Flannery and Zash "that he had handled cases like this one frequently, and assured them that the problem would 'go away' and "left it unclear whether he was representing the captains and who, if anyone, was his client."

The co-authors further reported that Wes told the father of the fourth co-captain that he (Wes) was "going to be the unofficial legal adviser for everyone."

No kidding!

Apparently Wes is not sensitive to possible conflict of interest!

Wes to the father: "I do this all the time for them [Duke]."

Until Proven innocent: "If everybody followed his advice, Covington told Thompson, there would be nothing to worry about. The women's story was internally inconsistent, not credible. Covington had an old friend and former client in the police department....'We're going to get this swept unde the rug,' he asserted."

I wrote in a June 20, 2007 post:

"The choice of Mr. Covington seems odd, since the biography of him posted at his firm's website describes him as follows: 'Wes Covington's practice focuses on trial work in the negligence and the medical malpractice areas. Mr. Covington was admitted to the North Carolina Bar in 1981. He received his undergraduate education at Duke University and his law degree from North Carolina Central University. Mr. Covington has been very active in the representation of businesses, medical practices, and nonprofit organizations. For a number of years prior to joining the firm, Mr. Covington was an Assistant District Attorney in Durham County. An active scuba diver, he has been involved in dive accident litigation across the United States.'

"The same Wes Covington mentioned in this excerpt from a 2003 Indy (the independent news weekly) article:

'...beneath DAN's tranquil surface, its depths are roiling. Unbeknownst to all but a handful of the 450 people in the ballroom that night, the nonprofit's board forced Bennett to surrender the helm long before he was ready. In an 18-month legal battle that ended just weeks before the big banquet, a majority of the directors accused their CEO of mismanaging corporate funds and spending them extravagantly on himself and his supporters, including Durham attorney Wes Covington, DAN's corporate counsel for most of its 22-year history. The board also alleged that Bennett tried, with Covington's help, to secretly gain control of DAN's lucrative Cayman Islands insurance subsidiary, engaged in favoritism and nepotism, and generally ran the nonprofit like a for-profit autocracy. Meanwhile, he collected three salaries — from DAN, its subsidiary, and Duke University, where he holds a professorship — totaling well over $200,000 a year, plus travel and benefits.'"

From the North Carolina State Bar website:

"Following a trial in October 1999, three Durham attorneys were disciplined by the DHC for their roles in resolving a DWI case in the back hall of the Durham County Courthouse in September 1998. J. Wesley Covington’s law license was suspended for three years, and all but 180 days of the suspension was stayed for five years on various conditions.... The commission found, inter alia, that Covington facilitated and participated in the disposition of the DWI case by entering a judgment of careless and reckless driving in a courthouse hallway, even though the defendant had not been charged with careless and reckless driving. The commission also found that Covington arranged the absence of a material witness."

Why would "Dean Sue" bring in Wes Covington to "help" the members of the 2005-2006 Duke University Men's Lacrosse Team in their time of need?

Help them what? Plead to an uncharged crime or hide a material witness?

The fog is dissipating.

It is very well known that in September 2007, the North Carolina State bar dealt with former Durham County, North Carolina District Attorney Michael B. Nifong.

The North Carolina State bar website states: "Michael B. Nifong, formerly district attorney in Durham, was disbarred by the DHC. The DHC found that Nifong had concealed exculpatory evidence from defendants in a criminal case, lied to the court on multiple occasions about the exculpatory evidence, and made dozens of improper extrajudicial statements to the news media."

But that was NOT the only disciplinary action taken by the North Carolina in September 2007.

The website also notes: "Durham lawyer J. Wesley Covington was censured by the Grievance Committee for engaging in a conflict of interest, failing to provide his clients with adequate information to make informed decisions, permitting a third party who paid his fee to make decisions regarding the clients' representation and thereby engaging in conduct prejudicial to the administration of justice."

Please indulge me while I repeat: Wes was censured for "engaging in a conflict of interest, failing to provide his clients with adequate information to make informed decisions, permitting a third party who paid his fee to make decisions regarding the clients' representation and thereby engaging in conduct prejudicial to the administration of justice."

That's the same Wes that "Dean Sue" brought in to "help" the men's lacrosse players!

So Duke's plan was to tell the players not to talk to their parents or lawyers and let "Dean Sue" and Wes handle the situation.

Has anyone filed a grievance against "Dean Sue"?

From KC Johnson's "The Gottlieb Deposition" article (DIW. June 14, 2007):

"In the days before March 22, attorney Wes Covington (whose clients were unclear—he told the captains he wasn’t officially their lawyer) had arranged for all the members of the team to be questioned (without counsel, and without telling their parents) by the DPD. This visit, he intimated, would end the case—each player would be asked a question or two, just to close out the file.

"Duke, Gottlieb continued, was a willing participant in this scheme to bring its own students in 'under the radar.'

"Once he found out about this plan (from team captain Dan Flannery), Ekstrand suspected a trap. He was right.

"Gottlieb admitted in the deposition that the DPD intended to 'see if they would allow DNA. See if they would allow photographs, et cetera.' Those, of course, are steps to expand an investigation, not bring it to a close—as would happen the next day, after the DPD secured the procedurally fraudulent non-testimonial order."

Blogger John Bruce last December:

"Multiple sources confirm that Coach Mike Pressler, apparently acting on orders from above, instructed the other players not to tell their parents about the police inquiry. Meanwhile, Dean Sue Wasiolek arranged for a local lawyer, Wes Covington, to act as a 'facilitator' in arranging for a group meeting with police.

"As a lay observer, it's nevertheless fairly plain to me that this fellow Wes Covington had a conflict of interest, should have known he had a conflict of interest, and should have refused to get involved. Covington was working for Duke, but Duke, telling the students not to tell their parents (thus keeping them from knowing they should have their own counsel), was fooling the students into thinking they were Covington's clients. While Dean Sue Wasiolek's name is mentioned here, it's hard for me to think a decision to hire an attorney for this purpose wasn't made without the participation of Duke's General Counsel who, all together now, should have known Covington had a conflict of interest, and should have refused to get involved in something like this.

"It may be that everyone involved has been too busy to file ethical complaints against Covington and Duke's General Counsel, but after all, there are 40-odd sets of parents involved here. . . (Just for fun, by the way, if the facts as outlined in the case summary are correct, we may be very close to having the elements of a conspiracy to deprive certain Duke University students of their civil rights, viz., their right to counsel in a criminal matter.)"

What is needed is a real investigation of Duke's role and a lawsuit seems to be the only way to get one.

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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