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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 30, 2007
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Duke Case: The Brodhead Apology

Mr. Brodhead was part of the problem, has a propensity to rush to a politically correct judgment and is not fit to be part of the solution.

When the Duke Three settled with Duke, confidentially, they got money but not a public apology.

Now they have one, sort of.

Why?

I'd say the long-suffering and very supportive families of unindicted players had something to do with it.

Duke seems to be positioning itself for civil suits instead of just trying to "move on," Until Proven Innocent by Stuart Taylor, Jr. and KC Johnson is out and Charles Cooper, Esq., cause for grave concern at Duke, is about to file a civil suit and perhaps Bob Ekstrand, Esq. is about to file another one.

It does not appear to be a good time to throw lacrosse players under the bus; it's a time to appear somewhat reasonable and to apologize, albeit grudgingly, and to hope to cut a deal before the worst comes out.

Set forth below are Mr. Brodhead's pathetic public statement and my cutting comments.

Mr. Brodhead: "This conference is not just about the Duke lacrosse case. It is about a kind of event that has taken on a central place in American culture: the legal case that creates a national community of attention, the case the public consumes every 'fact' of with an endless appetite for more. Cases like these typically combine scandal, celebrity, and highly combustible social issues, race and sex perhaps chief among them. And having become one of Americaís principal forms of shared public life, these cases highlight crucial problems of our culture -- problems of achieving justice in a media-saturated society, problems of fundamental fairness to individuals, and problems in the way the American public is informed and misinformed about the world we live in."

Comment: Don't blame the public for the Duke case! Blame the ex-convict stripper, blame the rogue prosecutor, blame his enablers in both his office and the Durham Police Department, blame the political correctness extremists, the feminists and the black racists who didn't care about the actual facts...and blame Duke University President Richard Brodhead for being a coward instead of an honorable man instead.

Mr. Brodhead: "The Duke community lived through a classic example of such a case. When a case like this is over, itís tempting to think that the facts so clearly established at the end of the day must have been equally clear throughout the process. This was not the case. When the accusations were made, our students said emphatically that they were innocent. On the other hand, the district attorney made a series of public statements expressing absolute confidence that a crime had occurred and that the students were guilty of criminal charges. These starkly opposite versions of the truth created deep uncertainty about what had happened."

Comment: Nonsense. The co-captains swiftly offered to take polygraph tests, but not the false accuser. The political motive of the rogue prosecutor was patent. The criminal record and unsavory background of the false accuser was readily ascertainable. And, Mr. Brodhead, you hid from the facts.

Until Proven Innocent, pp. 132-33: "Brodhead himself, much like Burness and Nifong, appeared to take pains to avoid exposure to the evidence in the case. He would later turn down an offer from an indicted student's parents to give Brodhead or his designee unrestricted access to all of the evidence in the DA's own files.....The parents assured Brodhead that the DA's files would show him that the criminal charges were false. Brodhead refused to look at them or assign a subordinate to look. Ironically, even as he went out of his way to avoid examining the discovery information, Brodhead publicly complained about his difficulties in having to base decisions on incomplete information."

Mr. Brodhead CHOSE to be uncertain.

Mr. Brodhead: "Added to this, the local and national media began weeks of highly sensational coverage, creating an air of instant, uncritical certainty that fed on itself in a remarkable way, with each day providing new 'revelations' that became known around the world, confirming and re-confirming public assurance that an outrage had occurred."

Comment: Mr. Brodhead chose to compound the problem by telling the Duke Chamber of Commerce: "If our students did what is alleged, it is appalling to the worst degree. If they didn't do it, whatever they did is bad enough."

That resulted in "highly sensational coverage, creating an air of instant, uncritical certainty that fed on itself in a remarkable way."

Mr. Brodhead:"Given the uncertainty at the heart of the case and given the tides of passionate prejudgment the DAís comments and media accounts touched off, I staked out a position on behalf of the university that contained three principles. First, the type of crime that had been alleged had no place in our community. Second, the presumption of innocence is fundamental to our legal system, and our students were entitled to that presumption. And third, this whole matter had to be entrusted to the criminal justice system for its resolution."

Comment: Mr. Brodhead was a passionate prejudger who refused to criticize the false accuser, the rogue prosecutor or the out-of-control part of the Duke faculty. Discovery in a civil suit against Duke will show that Duke "entrusted...the criminal justice system" with material to which it was not entitled and remained mute about it when the court heard argument on whether subpoenaed material that already had been secretly produced should not be ordered to be produced. There will be more, and not just Dean Sue trying to keep students from communicating with their parents and lawyers and bringing in Wes Covington to be everyone's unofficial adviser.

Mr. Brodhead: "As president, I had responsibility for the statements the university made and the actions the university took in a virtually unprecedented situation, and I take responsibility for them now. But I didnít come here to retell the story or explain the logic of our acts. We are now in the aftermath of this extraordinary case, and the aftermath, we have to hope, is a time for learning. Having spent my life in the cause of teaching and learning, I am not at all unwilling to learn lessons of my own. I am happy for this chance to share some of those lessons."

Comment: Better late than never! But Mr. Brodhead is unfit to be Duke President and should resign.

Mr. Brodhead: "First and foremost, I regret our failure to reach out to the lacrosse players and their families in this time of extraordinary peril. Given the complexities of the case, getting this communication right would never have been easy. But the fact is that we did not get it right, causing the families to feel abandoned when they most needed support. This was a mistake. I take responsibility for it, and I apologize."

Comment: Mr. Brodhead has much to regret and for which to apologize, including making the situation more complex instead of pandering.

Mr. Brodhead: "Second, some of those who were quick to speak as if the charges were true were on this campus, and some faculty made statements that were ill-judged and divisive. They had the right to express their views. But the public as well as the accused students and their families could have thought that those were expressions of the university as a whole. They were not, and we could have done more to underscore that."

Comment: After the faculty ousted Harvard President Larry Summers for not being politically correct enough, Mr. Brodhead was loathe to disassociate Duke and himself from the rantings of the Group of 88 and could and should "have done more to underscore" that the 88ers did not speak for Duke or its president.

Mr. Brodhead: "Third, I understand that by deferring to the criminal justice system to the extent we did and not repeating the need for the presumption of innocence equally vigorously at all the key moments, we may have helped create the impression that we did not care about our students. This was not the case, and I regret it as well."

Comment: Duke cared about its relationship with the powers that be in the Durham community and getting a zoning variance, not championing due process and the presumption of innocence for its well-to-do white lacrosse players. (The only lacrosse player to whom Mr. Brodhead spoke was Devon Sherwood, who is black.)

Mr. Brodhead: "Fourth, this episode has taught me a hard lesson about the criminal justice system and what it means to rely on it. Given the media circus and the public reactions it fed, I thought it essential to insist that the matter be resolved within the legal system, not in the court of public opinion. As far as it went, this was right. But what this case reminds us is that our justice system -- the best in the world -- is only as good as the men and women who administer it. In this case, it was an officer of this system itself who presented false allegations as true, suppressed contrary evidence, and subverted the process he was sworn to uphold."

Comment: The Duke case had to won in the courtroom of public opinion first, given the rogue prosecutor, and it was. It was obvious early what the rogue prosecutor was doing. In "Concerned Americans, let North Carolina hear from you," posted on June 14, 2006, I wrote, "The Duke lacrosse rape case itself is a travesty of justice. The accuser and the prosecutor need punishment and/or mental health help, not the three indictees," and called upon concerned Americans to let the Governor and Attorney General of North Carolina and the Executive Director of the North Carolina State Bar "that knowingly prosecuting innocent people for political purposes is a no no (regardless of race, color, creed, national origin or sex)." Did you contact any of them, Mr. Brodhead?

In "Duke President Brodhead: Undo your bonehead blunder," posted on July 3, 2006, I wrote:

"After (1) a North Carolina Central State student (Crystal Gail Magnum, the pathetic ex-convict stripper and 'escort' and patently unbelievable accuser in the Duke rape hoax) and (2) a North Carolina law school graduate who went into the Durham District Attorney's office, stayed there until he was appointed (NOT elected) District Attorney, and was about to lose a Democrat primary (and his job) the first time he faced voters (Mike Nifong) unless he suddenly endeared himself to Durham County, North Carolina's black Democrat voters teamed up (1) to try to destroy Duke's men's lacrosse team because her gig as a stripper was not as pleasant and lucrative as she had hoped and (2) to indict three members of the team (three being a much more manageable number than twenty) in the hope that a jury would convict them and a subsequent civil suit against them would be simple, successful and lucrative, the President of Duke University (Richard H. Brodhead) (1) genuflected at the altar of political correctness, (2) treated the accuser as credible and the District Attorney as fair, objective and professional instead of unfair, biased and political, (3) canceled the Duke men's lacrosse team's season and (4)suspended the two indicted sophomores (the third indictee was fortunate enough to graduate before Crystal finally got around to making him no. 3).

"What has transpired subsequently has demonstrated that the accuser and the District Attorney are the villains (or mental cases) and the Duke Three are the victims of false accusation and prosecution for personal and political purposes.

"Having seriously and senselessly damaged the two sophomores by jumping to the conclusion that their indictments were well-founded instead of realizing that they were being wrongly hounded, Mr. Brodhead should reinstate them immediately. If he has any shame, he will do that. (Then he should resign, because he has done extraordinary damage to Duke University as well as to the Duke Three and Duke needs a responsible President.)

"When the gang rape accusation was made, Mr. Brodhead, as President of Duke University, needed to make a choice. He could invoke the presumption of innocence in the absence of clear and convincing evidence of guilt (and let the sophomores continue their expensive education) or he could presume they were guilty (and bar them from continuing their studies at Duke). So much for Duke's 'home field advantage.' Mr. Brodhead quickly chose to abandon three Duke student athletes (and their families and friends) and suspended the sophomores, sending the message that they were embarrassments to Duke and presumed even by Duke to be guilty.

"It turns out that EACH of the Duke Three has passed a polygraph examination with respect to the charges on which they were indicted. (I haven't seen a report that the accuser even took one, much less passed.)"

Mr. Brodhead waited far too long to invite Collin and Reade to return to Duke.

Mr. Brodhead: "Relying on the criminal justice system in this case proved to have serious limits. But for the university to strive to set the system to rights -- for instance, by attacking the District Attorney -- presented problems as well. For one thing, none of us can lightly speak as if the system itself is tainted because some of our own have been accused of a crime. I was also concerned that if Duke spoke out in an overly aggressive fashion, it would be perceived that a well-connected institution was improperly attempting to influence the judicial process, which could have caused the case to miscarry in a variety of ways. Finally, there was no legal recourse against the District Attorney, for me or anyone else. Under North Carolina laws, no one had authority to take an active case from a DA absent the DAís own request, as finally happened in January."

Comment: There WAS legal recourse: the court and the state bar. Duke could have pointed out that material subpoenaed by Mr. Nifong already had been secretly provided when the motion to quash the subpoena was argued and supported the late Kirk Osborn's motion to have Mr. Nifong removed from the case. If Duke had not secretly cooperated with the prosecution and treated Mr. Nifong's outrageous public comments as outrageous public statement showing that he was not a fair and objective minister of justice, the ordeal would have been shorter.

Mr. Brodhead: "Even with all that, Duke needed to be clear that it demanded fair treatment for its students. I took that for granted. If any doubted it, then I should have been more explicit, especially as evidence mounted that the prosecutor was not acting in accordance with the standards of his profession."

Comment: Wow! What a concession! How could Mr. Brodhead take "that for granted" when Mr. Nifong's known behavior was outrageous?

Mr. Brodhead: "The larger problem for society is how to create and maintain the optimal balance between the independence of the legal system and protection of individuals from false prosecutions. If this state should ever again have a rogue prosecutor on the loose with no more remedies than were available last time around, the failure to have learned the lesson of the Duke lacrosse case would be intolerable. I do not want to create some instant legislative ďsolutionĒ that opens the door for new injustices tomorrow. I recognize that it is not easy to get the checks and balances right when two such important interests are at stake. But itís essential for all relevant parties to work to create these mechanisms, and I trust the current conference will contribute to this cause."

Comment: Mr. Brodhead is unfit to craft a solution. He is too contaminated by pollution.

Mr. Brodhead: "Closer to home, this case highlights challenges universities face when students are tied to serious criminal charges. This challenge has many aspects: how the university advises a student in these circumstances, how the university regulates the presence on campus of students charged with serious crimes, how the university interacts with parents, and many more. My colleagues in the Duke administration are going over all our procedures to see what we can learn from our experience. But these are complex questions, and they arenít ones Duke can or should hope to solve on its own. To work through these difficulties and see that their lessons are learned not only here but around the country, we will be hosting a national conference of educators, lawyers and student affairs leaders to discuss best practices in this important field."

Comment: A conference! Yes. That will do it!

Mr. Brodhead: "Iíll end with the deepest lesson this case taught me. When I think back through the whole complex history of this episode, the scariest thing, to me, is that actual human lives were at the mercy of so much instant moral certainty, before the facts had been established. If thereís one lesson the world should take from the Duke lacrosse case, itís the danger of prejudgment and our need to defend against it at every turn. Given the power of this impulse and the forces that play to it in our culture, achieving this goal will not be easy. But itís a fight where we all need do our part."

Comment: Mr. Brodhead was part of the problem, has a propensity to rush to a politically correct judgment and is not fit to be part of the solution.

Mr. Brodhead: "Much of me hopes the Duke lacrosse case will be forgotten someday. But if it is remembered, letís hope it is remembered the right way: as a call to caution in a world where certainty and judgment come far too quickly."

Comment: To be sure, Mr. Brodhead was cautious/cowardly when character and courage were required. Let's remember the Duke lacrosse case as the shameless folly of political correctness gone wild and the reason Mr. Brodhead resigned as Duke's president.

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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