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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 9, 2007
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Duke Case: Now Coleman v. Taylor & Johnson

Ironically, it is Professor Coleman who is recasting his report to make it less favorable than it actually was and much less favorable than it should have been. Do not be deceived: Professor Coleman spoke out in favor of due process in the criminal context in the Duke case, but quietly went along with "Duke process."

The Duke Three were declared innocent months ago, but fascinating developments continue.

Duke Law Professor James Coleman, a black liberal Democrat, surprised many by lambasting Stuart Taylor, Jr., a white centrist independent, and KC Johnson, a white liberal Democrat, co-authors of Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case, the best book on the case, for characterizing the Coleman Committee report's "stunning vindication" of the Duke lacrosse players as a "stunning vindication" of the Duke lacrosse players and calling "a bunch of ideologues who care less about the their students and more about promoting their own extremist agendas" precisely that.

Ironically, the co-authors had called Professor Coleman not only a "hero of the case," but "the voice of moral clarity throughout this affair," in their book.

Like many (including me), the co-authors obviously were delighted that Professor Coleman had targeted the rogue prosecutor, Mike Nifong.

Unfortunately, they did not fully appreciate the significance of Professor Coleman's failure to criticize Duke University President Richard H. Brodhead or the radical faculty known as the Group of 88 and also as "a bunch of ideologues who care less about the their students and more about promoting their own extremist agendas."

Professor Coleman on Mr. Nifong WAS praiseworthy.

Examples:

"He [Nifong] pandered to the community....What are you to conclude about a prosecutor who says to you, 'I'll do whatever it takes to get this set of defendants?' What does it say about he's willing to do to get poor black defendants?"

"Who would believe that a witness, nine months later, suddenly recalls facts that coincidentally negate evidence produced by the defense. It's like Nifong is mooning the system."

BUT, as the co-authors noted, Professor Coleman "seconded" President Brodhead's "hands-off approach."

Professor Coleman: "I'm not sure what more the University could have said that would have been supportive of the students and would not have appeared to be Duke trying to interfere in the judicial process. Nifong had already basically attacked students as being wealthy, white, privileged students whose fathers could go out and buy them the best lawyers. I don't think the University could have asserted that the students were innocent under those circumstances."

So Duke could have acted if Nifong had attacked poor, black, underprivileged students whose fathers had abandoned them, but not on behalf of the federal civil rights of well-to-do whites?

Message to Professor Coleman: The Fourteenth Amendment protects whites too, even rich whites, and Duke University should not hesitate to support due process for all. It's called integrity.

The co-authors had set forth that revealing quotation in their book and then commented: "Of course, with all respect for Coleman, most Brodhead critics had not been asking him to declare the defendants innocent. They had been asking him to speak out against Nifong's grotesque abuse of the legal process and of asking him to stop his succession of damaging and misleading public attacks on the characters of this group of generally admirable young men."

The co-authors obviously did not suggest that "heroic" Professor Coleman had calculated that he should support due process for the Duke lacrosse players in the criminal justice system for the sake of "poor black defendants" instead of as a matter of principle, but these days Professor Coleman is raising questions about himself by pandering--to President Brodhead and his fellow liberals on the Duke faculty who were displeased with his criticism of Nifong.

Herewith the text of Professor Coleman's and Professor Prasad Kasibhatla's joint letter to the Duke newspaper lauding President Brodhead's late apology and lambasting the co-authors for rushing to judgment:

"We are impressed with President Richard Brodhead's continued attempts to reach out to all members of the Duke community to promote healing and reconciliation in the wake of last year's lacrosse incident, as evidenced by his recent remarks at the Duke School of Law. We are disheartened, however, by the continued drumbeat of destructive criticism of the administration and faculty by some within and outside the Duke community. More importantly, as chairs of two of the five committees that examined various issues brought to light by the lacrosse incident last spring, we take issue with the biased and inaccurate rhetoric espoused by some of these critics.

"Firstly, we reject the characterization put forward by critics like Stuart Taylor and KC Johnson that the Lacrosse Committee report, that examined the past behavior of the lacrosse team, is a 'stunning vindication' of the team (Washington Post, September 7, 2007). On the contrary, the report very carefully details a pattern of behavior that the committee characterized as 'socially irresponsible' that should 'have been a cause for alarm.' Dismissing this finding as trivial is a biased and unjustified misrepresentation of the facts.

"Secondly, there is a recurring theme advanced by critics like Taylor and Johnson that the faculty at Duke and at other universities are increasingly a bunch of ideologues who care less about the their students and more about promoting their own extremist agendas. Nothing could be further from the truth. Faculty at Duke, as at other universities and colleges, care deeply about students and are passionately committed to their personal and intellectual growth. Anyone who has the slightest knowledge of the daily life of a faculty member will quickly appreciate the time, effort and energy that faculty put into teaching, advising and mentoring students. To suggest otherwise, on the basis of isolated and selective incidents that occur over the course of complex events and are taken out of context, is nothing more than a tragic rush to judgment."

Believe it or not, Professor Coleman is trying to turn the tables of the co-authors by accusing them of "a tragic rush to judgment."

The co-authors had written: "On the Duke campus, no other professor seconded Coleman for more than four months and no member of the Group of 88 reconsidered the wisdom of their rush to judgment."

They also wrote: "This [Coleman Committee] report was a bitter disappointment for the many professors who had rushed to judgment against the team. Houston Baker, for instance, lashed out a Coleman and his colleagues. In an interview with WRAL, Baker fumed that the report 'says they are model academic citizens--they've been on the honor roll.' He did not dispute any of the committee's factual findings but exuded rage that it had broken the pattern of demonizing the team. 'Underage drinking!' thundered Baker, as if unaware that the vast majority of students at Duke and every other major university outside of those associated with the religious right had done that."

The co-authors' book is not error-free, of course.

Two examples:

(1) ONE of the 88ers eventually admitted error.

(2) It was NOT "only because the Duke defendants had extraordinarily talented, hardworking, and expensive lawyers that the Nifong-Meehan DNA cover-up conspiracy was ever cracked. (The detection of multiple male DNA was known by some in North Carolina who would not be so described, as well as reported by me as early as June 20, 2006, and the truth would have prevailed eventually, notwithstanding corruption in the Durham County District Attorney's office and the Durham Police Department, the North Carolina NAACP, Nifong-friendly judges, the July 2006 gag order, the biased media, the black bloc vote, the hostility of the Duke administration to the Duke Three, the timidity of the United States Justice Department, the slowness of the North Carolina State Bar and the lack of leadership of North Carolina Governor Michael Easley and Attorney General Roy Cooper.)

Nonsense, Professor Coleman: Mr. Taylor was right about the Duke case from the start, and Professor Johnson learned soon enough that President Brodhead really was not the laudable fellow he imagined him to be when he wrote his first Duke case article. They did not let their personal views or needs overcome their objectivity and fairness. That's apparently what you just did, Professor.

As I wrote in my review of Until Proven Innocent, there was "over-praising [of] some defense lawyers, overemphasizing what some on the left did right and omitting what some on the right did," but these "are relatively small flaws in an awesome book and to be expected from authors who are not conservatives."

Public apologies to conservatives La Shawn Barber, Mike (Crystal Mess) McCusker and Joe Scarborough acknowledged the validity of my criticism that "what some on the right did" was omitted.

Now Professor Coleman has ever so helpfully shown that there was "overemphasizing what some on the left did." [Note: The praise of liberals Dan Abrams and Jeralyn Merritt was NPT overdone, but, for example, by omitting to mention Rush Limbaugh and barely mentioning Sean Hannity, the co-authors "overemphasiz[ed] what some on the left did."

A perrplexed KC Johnson responded to Professor Coleman as follows:

"I quote from p. 209, of Until Proven Innocent, the book that Stuart Taylor and I co-authored on the case:

'The [Coleman] committee issued its twenty-five page report on May 1, the first day of final exams. It demolished the negative stereotypes of the players that Nifong. much of the media, the Group of 88, and Duke administrators (less egregiously) had worked so hard to establish. But the media largely ignored the report's highly positive major findings. Those who reported on it at all triumphantly highlighted its conclusion that the laxers got drunk too often. Relying on statistics provided by Dean Bryan--and later challenged by parents as misleading--the report said that the lacrosse players drank more than most Duke students, or at least athletes, and had a disproportionate percentage of alcohol-related citations from Durham police. But it also noted that all of these alleged offenses were routine matters such as holding an open beer container, underage drinking, or making too much noise: "Their typical conduct has not been different in character than the conduct of the typical Duke student who abuses alcohol. [Durham Police Captain Ed] Sarvis said lacrosse players did not represent a special or unique problem . . . in fact, none of the houses rented by lacrosse players was . . . among the top 10 houses about which neighbors complained the most."'

'Alcohol aside, the Coleman Committee's portrayal of the lacrosse players could hardly have contrasted more dramatically with Nifong's ('hooligans') and Brodhead's ('racist language,' 'disorderly,' allusions to slavemasters and sexism). The committee said the players had no record before March 13 of bullying, fighting, racist talk, hostility toward women, cheating, or other serious misconduct.'

"Chronicle readers can judge for themselves whether this description is an unjustified misrepresentation of the facts; the full committee's report remains on the Duke website, and I urge people to read it.

"[It is worth noting that the committee's report occurred before it came to light that Duke had endorsed the Durham Police Department's official policy of disproportionately punishing Duke students for minor offenses for which all other Durham residents received no official punishment--a policy that certainly casts a different light on the arrest records of all Duke students, including lacrosse players.]

"As to whether the criticism of the faculty who chose to advance their own pedagogical, ideological, or personal agendas on the backs of their own school's students in this case represents a 'rush to judgment': my blog has done 158 posts on faculty-related matters, over the past 18 months. If Profs. Coleman and Kasibhatla do not feel that sufficient information about the Group of 88's conduct has come to light to render a fair judgment, I hope that they'll endorse the call I made several weeks ago in the Chronicle in June(http://media.www.dukechronicle.com/media/storage/paper884/news/2007/06/21/Columns/Due-Process.For.The.88-2917428.shtml) urging a Coleman Committee-like review of the Duke faculty's response to the lacrosse affair, not for the purpose of punishment, but for the purpose of learning from the mistakes of the case.

"Finally, while some Duke professors (Starn, Holsti) have appeared to question the need for Pres. Brodhead's apology, I described it in a blog post the next day as 'a powerful and emotional address, one that touched on several important points in an impressive fashion.'"

That apology was strategic and limited, not sincere and complete, but Professor Johnson did not rush to judgment about the 88ers and obviously still tries to see President Brodhead in the best possible light.

Mr. Taylor was less tolerant of Professor Coleman's belated criticism:

"I am surprised and saddened to see Professor James Coleman joining in a grossly misleading attack on KC Johnson's and my work on the Duke lacrosse case, and in particular to see his attack on our characterization of the May 1, 2006 Coleman Committee report as on balance a stunning vindication of the lacrosse team.

"I agree entirely with KC's response. I write to add these facts and observations:

"I first wrote that the Coleman Committee report was, on balance, a 'stunning vindication' of the team members' characters more than 16 months ago, on May 22, 2006, in National Journal: 'Alcohol aside, this report's findings are a stunning vindication of the characters of a group of kids who have been smeared from coast to coast as racist, sexist, thuggish louts.' KC has repeatedly made similar comments on his blog. Yet until now, Professor Coleman has never hinted to me, and as far as I know has never hinted publicly, that I or KC had mischaracterized his committee's report. If he really believed that, he has passed up numerous opportunities to say so. One such opportunity came during a panel discussion this September 14, with Professor Walter Dellinger moderating and Professors Erwin Chemerinsky, Coleman and I as panelists. Although Professor Coleman did criticize our book's criticisms of Duke faculty members on that occasion, he never suggested that our book had mischaracterized his report. Professor Dellinger ended the panel on a gracious note, which I paraphrase: Surprise! Three liberal Duke professors disagree with the book's criticisms of liberal Duke professors.

"I wonder what pressures Professor Coleman has come under from colleagues, and/or from the Duke administration, that have motivated him suddenly, 16 months late, to misleadingly accuse us of mischaracterizing his report.

"It should also be clear that neither KC nor I has ever dismissed or ignored the Coleman Committee report's criticisms of the lacrosse players' drinking and drinking-related petty misconduct.

"As for the Coleman-Kasibhatla letter's attack on our portrayals of the dozens of Duke faculty members who joined the rush-to-judgment mob: I do not see how anybody who reads the detailed facts in our book not one of which the Coleman-Kasibhatla letter disputes could take their letter seriously. It is a lamentably lame apologia for shameful conduct by a very substantial minority of the Duke faculty.

"Our book praises Professor Coleman's wisdom and courage in going against the rush-to-judgment crowd while the case was pending. I am very sorry to that his wisdom, at least, has run dry."

The Duke case is a Democrat scandal and a political correctness scandal. Duke confidentially settled a punitive grading case and then with the Duke Three, and declared it was moving on. Professor Coleman surely did not see real reform at Duke as near and perhaps tried to rebuild bridges he had boldly broken.

A parent of an unindicted player not only noted that Professor Coleman is not above criticism, but also that his report should have been more favorable to the players:

"I am a Duke parent and a retired actuary.

"While Professor Coleman has acted with honor and integrity, and spoke out for the players rights' to due process, I do not believe that he should be immune from criticism when he makes very questionable statements as he does in this letter.

"I reviewed the statistics in the Coleman Report that were used to substantiate the conclusions that the lacrosse players were abusive users of alcohol and socially irresponsible. In my opinion these conclusions were based on statistics and related analyses that were biased and unreliable. It appears that this statistical information was prepared carelessly and irresponsibly without oversight by someone with a strong mathematical background, e.g. one of Duke's math professors. Duke was negligent in issuing such poorly prepared information, particularly considering the potential serious consequences to the lacrosse players, especially those indicted.

"I'm sure Professor Coleman did not prepare the stats himself (it was likely someone from Judicial Affairs ). And he probably did not review this information in detail, if at all. But his name's on the Report and he has responsibility for the integrity of all the information in the Report . These biased and unreliable statistics were, and continue to be, used to unfairly and irresponsibly attack the characters of the lacrosse players as a group.

"There are more accurate and representative statistics which show that the lacrosse players were more responsible, on average, than other Duke students. These statistics are presented in 'Until Proven Innocent ', coauthored by KC Johnson and Stuart Taylor."

Do not be deceived: Professor Coleman spoke out in favor of due process in the criminal context in the Duke case, but quietly went along with "Duke process."

The co-authors reported that the Coleman Committee's process was "secret" and even though "[t]heir behavior was on trial," the players " could not speak to committee members or have a representative cross-examine or even hear witnesses, the better to point out any inaccuracies.

The good news is that even with "Duke process," the Coleman report was as favorable as it was. Ironically, it is Professor Coleman who is recasting his report to make it less favorable than it actually was and much less favorable than it should have been. Do not be deceived: Professor Coleman spoke out in favor of due process in the criminal context in the Duke case, but quietly went along with "Duke process."

Might the impending suits by the Duke Three against Durham and by unindicted players against Duke itself, each of which threatens embarrassing discovery for his fellow Democrats and liberals, have influenced Professor Coleman to put his name on that foolish letter?

Think about it.

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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