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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:  October 6, 2007
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Duke: Steel and Brodhead Both Must Go

...it was bad enough for both President Brodhead and Chairman Steel to be sent packing. The truth is that the Duke administration first took inappropriate affirmative actions (such as telling players not to talk to their parents or lawyers and that all would be well and bringing in an attorney with ethics problems to be everyone's unofficial adviser) and then refused to take appropriate actions (such as President Brodhead himself refusing the Finnerty family offer to review or have his representative review the so-called evidence that Mr. Nifong produced in discovery).

Reactions to the apology of sorts of Duke President Richard H. Brodhead proved to be much more interesting than the carefully crafted, limited and predictable apology.

Durham is dirty, and so is Duke.

Neither is eager to be cleansed, of course.

Neither is filled with genuine remorse.

Duke Political Science Professor Emeritus Oli Holsti gushed about Mr. Brodhead and growled at the lacrosse players in a post-Brodhead apology letter to the Duke newspaper.

"President Richard Brodhead was very gracious, as always, in his apology for Duke's handling of the lacrosse case. Indeed, he went far beyond what was necessary.

"When will we get an apology from members of the lacrosse team for their irresponsible behavior, including hiring a stripper, that initiated the sad affair?

"When will we get an apology from the parents of the lacrosse players for not raising their sons to understand that hiring strippers constitutes wholly unacceptable behavior?"

Don't blame all the team members and the parents because a very few chose to hire strippers, Professor.

And don't blame the ones who did that for what false accuser Crystal, rogue prosecutor Nifong, pathetically politically correct President Brodhead, the 88ers and the bulk of the mainstream media did.

KC Johnson gave the professor the benefit of the doubt, but not a pass:

"A most unfortunate letter in today's Chronicle from Political Science professor Ole Holsti (a man whose scholarship I very much respect), demanding that the lacrosse players apologize for the party (when, of course, the captains already have, and repeatedly so), criticizing the parents of all the lacrosse players, and playing down the administration's need to apologize. Coming on the heels of Orin Starn's screed in yesterday's H-S, the letter undoubtedly raises concerns about the faculty's willingness to embrace President Brodhead's apology.

"I e-mailed Prof. Holsti to ask if he was aware that the captains had apologized on no less than five occasions for the party. He responded, en toto, 'any thanks for your interest.' One wonders, also, for what, say, Brad Ross' parents should apologize--for teaching him how to drive, since he spent the entire evening of the party in Raleigh?"

Mike Munger, Duke Political Science Department Chair:

"I write to disagree with the view of my good friend and colleague, Dr. Ole Holsti, that the lacrosse players should now apologize.

"Dr. Holsti criticizes 'the parents of the lacrosse players.' The 'lacrosse players' are not a homogeneous group; they are not equally blameworthy for the party. Some attended, some left in disgust, and some were never there.

"Further, the organizers of the party have apologized, in several different forums. These heartfelt apologies came immediately after the events being apologized for. Whether the events at the party required an apology is moot; those responsible have apologized, and the entire team had its season cancelled. Surely that is enough, more than enough, apology and punishment.

"Finally, I am not so sure that President Brodhead's apology went 'beyond what was necessary,' as Dr. Holsti claimed. I do know that a lot of time passed between the events and the administration apology.

"Nonetheless, I would hope that the players, and parents, accept Dr. Brodhead's apology in the sincere spirit in which it was offered, and without qualification."

I hope NOT! It was strategic, not sincere, as well as incomplete and ineffectual, just like Mr. Brodhead.

Bill Anderson:

"One forgets that the fine arts department at William and Mary last year hired strippers to perform on campus. A few years ago, campus feminists at Bucknell University brought male and female strippers to perform on campus in 'celebration of the sex worker.'

"I do not recall seeing any protests from campus leftists at Duke or anywhere else about such exhibits. Of course, we remember that the stripper parties on THOSE campuses were politicized in nature, so that apparently means having strippers is OK.

"The Duke lacrosse players apologized repeatedly for their behavior, something that Coach K. and his basketball team DID NOT HAVE TO DO in the aftermath of their stripper party, held two weeks before the infamous LAX party. Furthermore, after the incident, the LAX players all told the truth. That is more than we can say for the faculty and administrators and employees of Duke University, and certainly more than we can say for the City of Durham, the Durham Police Department, and Michael B. Nifong.

"Yet, according to Prof. Holsti, the only people who are to blame are the ones who told the truth. I guess he is one more example of an Orwellian professor.

"Professor, let me give you some advice: Please stop disgracing your profession. Would be your colleagues also would stop disgracing higher education. I will say that letters like yours make me angry, and also remind me that all too many professors at Duke University prefer to be blind and dishonest than to deal with the truth, and the violence that so many of them have done to the truth."

Don't hold back, Bill. It might give you an ulcer.

Duke Economics Professor E. Roy Weintraub submitted to the Duke newspaper and then quickly withdrew this delightfully blunt letter:

"Dear Editor: I was surprised to read Emeritus Professor Holsti's letter yesterday, and Chemistry Chairman Warren's e-letter of support. Castigating Duke students for underage drinking, the only possible illegal act that occurred at that off campus party held in March 2006 (aside from the filing of a fraudulent rape complaint) should also I suggest be balanced by their public recognition that some of their colleagues and former colleagues in their departments and in Arts and Sciences have in the past taken, manufactured, and sold illegal drugs, illegally smuggled alcohol into North Carolina, sexually harassed and assaulted undergraduate students, graduate students, and staff members both male and female, mishandled and misappropriated federal funds, published student research as their own work, committed adultery, cohabitated(!), attempted to murder a sitting judge, etc.. A conversation with the University Counsel, who keeps some of such records (associated with verified complaints against current faculty members), might lead faculty to a bit more unwillingness to cast (as President Brodhead termed them) 'ill-advised' stones."

The withdrawal of the letter tells us where Duke is; the writing, where it can be.

John in Carolina explained that Professor Munger did not go far enough:

"Dear Professor Munger:

"Thank you for speaking up for the players.

"With regard to President Brodhead's apology: I don't think he went nearly far enough.

"Example: he didn't say a word about Reade Seligmann or the racists who shouted threats, including death threats, at him.

"On March 29, 2006 President Brodhead issued an immediate, full, unconditional and written apology on behalf of the University to the woman who was then known publicly as 'the first 911 caller' and her 'friend' based on the callerís disputed allegations that she and her friend were victims of racist slurs shouted by men coming out of a house the University owned.

"That was considered a proper thing for President Brodhead to do. He was praised for his statement.

"Now he issues an apology in which he doesn't even mention the name of a student who was the target of what were indisputably threats from racists. His failure to mention the student or criticize the racists has drawn no criticism that I've seen; and Brodhead is praised for his apology.

"There's a double standard at work."

It's rank political correctness hypocrisy.

Friends of Duke University's Jason Trumpbour posted a commentary titled "Too Little Too Late," suggesting that Mr. Brodhead should not be invited to stay as president of Duke and opining that "Robert Steel, the Chairman of the Board of Trustees bears the greater responsibility for Dukeís official policies regarding the lacrosse case."

Mr. Trumpbour explained that the apology was grudging and incomplete:

"Apologizing to the players was the right thing to do. However, I cannot help but feel that, once again, circumstances forced his hand. After all, the administration had been belligerently insisting that they had gotten things more or less right and have clung to that position up until this speech. Now, there is the prospect of imminent lawsuits by the unindicted players and a review of President Brodheadís first three years in office is underway. Just as the revelation that Mike Nifong was hiding evidence forced him to speak out in December, we see President Brodhead reacting rather than leading.

"His apology also is incomplete. It is inevitable that mistakes would be made in trying to deal with such a bizarre and unprecedented situation. No one would have expected different. That mistakes were made is not really the problem.

"What President Brodhead really needs to take responsibly for and has yet to do so are the selfish motives that drove the administrationís policies. The administration wanted the case to go to trial. It believed that, if the case were dismissed before trial for whatever reason, people would say that Duke used its influence to have it dismissed. Robert Steel, the Chairman of the Board of Trustees told me that a year ago. That is also why President Brodhead, despite being savagely maligned for doing so, clung to the concept of Reade, Collin and David 'proving themselves innocent.' That was not just an isolated, unfortunate choice of words. President Brodhead repeated this formulation only a few days ago. Dismissal is the proper procedure in the case of weak or baseless charges. Indeed, prosecutors have an affirmative legal and ethical duty to dismiss such charges where they are not based on probable cause or where they do not themselves believe in the guilt of the accused. However, the administration pretended not to know anything about these concepts."

It was much worse than that. Still, it was bad enough for both President Brodhead and Chairman Steel to be sent packing. The truth is that the Duke administration first took inappropriate affirmative actions (such as telling players not to talk to their parents or lawyers and that all would be well and bringing in an attorney with ethics problems to be everyone's unofficial adviser) and then refused to take appropriate actions (such as President Brodhead himself refusing the Finnerty family offer to review or have his representative review the so-called evidence that Mr. Nifong produced in discovery).

Which was more important to Duke--due process and fair treatment for falsely accused Duke students or a zoning variance?

Mr. Trumpbour made a compelling case against Chairman Steel: "If Reade, Collin and David had to be exposed to the risks associated with a trial by a corrupt, unethical prosecutor who had done everything he could to inflame the jury pool, that was just the way it had to be. Steel told me that it did not matter if they were convicted because all the problems with the case would be sorted out on appeal. That is not the way the appeal process works and I told him that, but that was still his plan."

So under the "leadership" of Steel and Brodhead Duke was treating the players as sacrificial lambs in the name of political correctness and for the sake of good relations with the Durham authorities and tolerating the shameless behavior of the Group of 88.

Mr. Trumpbour:

"The most disturbing outgrowth of this policy was that the administration not only did not want to speak up itself. It did not want anyone else doing so either. Administration officials would privately bad mouth the players to reporters and anyone else who expressed doubts about the charges or the fairness of the procedures used. I know. I heard this garbage myself. They were still doing it after the Attorney Generalís report came out to justify their actions.

"In the end, the administrationís policies were never about ignorance of the facts or credulity concerning the motives of public officials. The facts were irrelevant. It was all about keeping up appearances. Moreover, the views of some groups carried more weight than others. It is the same policy that led to Ryan McFadyen being suspended, Mike Pressler being fired and Kim Curtis going unpunished."

How many strikes do Steel and Brodhead get?

Meanwhile, Mr. Trumpbour reported, the situation at Duke is worsening: "President Brodhead, as he did in May, reckons that he has things figured out now. However, a recent series in the Chronicle detailed how the administration has been modifying the Universityís judicial code to eliminate most of studentsí procedural rights and how the administration punishes students on the mere accusation of Durham police officers without further proof despite well documented abuses by the Durham Police department. If the lacrosse case has taught us anything, it is that procedure matters. Unfortunately, it appears that the administration has learned absolutely nothing at all."

Mr. Trumpbour stated what is obvious to those of us who were right from the start about the Duke case: "Duke needs and deserves strong leadership. In making his apology, we find President Brodhead doing precisely what he has been doing all along: embracing and conforming to whatever the prevailing understanding is regardless of its validity. It is gratifying that people finally understand what was actually going on. However, nothing has changed at Duke."

Mr. Trumpbour was right the first time: it's gotten worse.

Mr. Trumpbour essentially conceded that he had been too hopeful about the Duke administration:

"Throughout this entire ordeal, we have criticized the administration, but, unlike a number of other critics, we did not call for President Brodhead to be removed. Instead, we tried to support him and give him the courage he needed to be a leader and to do the right thing. We tried to engage the administration in a respectful dialogue about the issues. We have nothing to show for those efforts."

Of course not. Trying to give courage to Brodhead was a fool's errand. Like the Duke case itself, the battle for Duke first must be won in the courtroom of public opinion. Like Mr. Nifong's concealment of exculpatory evidence in the Duke case, Duke has been concealing the truth by making confidential settlements in order to avoid discovery and trial.

Mr. Trumpbour: "I am glad that FODU could help the public understand the extent of Mike Nifongís misconduct. However, that satisfaction is tempered by the fact that we spent a year doing someone elseís job for them."

The extent of Duke's misconduct needs to be publicly understood too!

Mr. Trumpbour gets it:

"It has long been our position that the administrationís words must be matched with deeds. Unfortunately, the time for action has come and gone. Last May, I wrote President Brodhead asking him to appoint a commission to look at the administrationís response to the lacrosse case. He appointed one to look at the first couple of weeks. Why not the other eleven months or so? We could not have changed the past. However, [we] could have made sure that the same mistakes and moral failings are not repeated in the future. That is what we wanted and that is what most of the families, despite the wrongs done to them, really wanted. President Brodhead gave us the brush off. That was his last possible opportunity to actually do some tangible good. He has made his choice. It is time to look somewhere else for leadership.

"President Brodhead is now undergoing a performance review to determine whether his contract should be renewed....I know what we will be recommending.

"In criticizing President Brodhead, it should be kept in mind that he alone is not responsible for the Universityís official policies and conduct. Indeed, those above him and below him bear greater culpability and their status needs to be addressed as well. Robert Steel, the Chairman of the Board of Trustees bears the greater responsibility for Dukeís official policies regarding the lacrosse case. Getting rid of him is a bigger priority for me than getting rid of Brodhead. Many of those below President Brodhead carried out these policies in the manner described above and with far too much enthusiasm. President Brodhead often simply appeared to be there in the middle. However, that in and of itself is a huge problem."

It's up to the unindicted players to sue Duke and to conduct the discovery that can lead to Duke's recovery instead of to settle confidentially.

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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