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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:  December 12, 2007
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Duke Case: KC Johnson on Richard Brodhead Now

The tragic reality is that Duke, under Mr. Brodhead, is in cover up mode, having bought confidential settlements with the Dowds and the Duke Three, and currently negotiating to avoid the filing of complaints, not to mention potentially devastating developments in discovery and at trial if lacrosse players who were not indicted sue Duke.

Fittingly, in the post announcing that his durable Durham-in-Wonderland blog is going on a hiatus, KC Johnson returned to a subject of his first Duke case post--Duke University President Richard Brodhead--and nearly got it completely right this time.

Not all flip-flops are bad. Going from wrong to right is a good thing. If KC had come all the way around on Mr. Brodhead, it would have been better. But he's come a long way on Mr. Brodhead.

KC's April 2006 posts on the Duke case nicely juxtaposed Mr. Brodhead and the Group of 88. Mr. Brodhead received the bouquets while the 88ers got the brickbats.

KC was right about the 88ers, of course, but not in lauding Mr. Brodhead.

The part of KC's very first Duke case post praising Mr. Brodhead seems peculiar now, but it was politically correct and KC was embarking on what unfortunately so far has been a quixotic, but noble, quest in favor of the presumption of innocence and due process and against those at Duke who denied it to the members of the 2005-2006 Duke University Men's Lacrosse Team, especially theGroup of 88.

Was it quixotic, that is, "foolishly impractical esp. in the pursuit of ideals" or "marked by rash lofty romantic ideas or extravagantly chivalrous action"?

Yes, in real reform at Duke is the test.

But it was the right thing to do (and KC's mistake was not including Mr. Brodhead on the villain list from the start).

KC's first Duke case posted appeared on April 16, 2006, under the title "Duke News."

KC wrote:

"There aren't too many people who have come out of the current Duke controversy looking good, but there are two that have performed about as well as possible, it seems to me, under current circumstances....

"The second is Duke's president, Richard Brodhead. He--quite appropriately, it seems to me--suspended and then cancelled the lacrosse season; 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. He's reached out to students and administrators at NCCU. At the same time, he's avoided any rush to judgment--unlike a handful of Duke professors, led by Afro-Am studies professor Houston Baker, who essentially advocated dismissing the lacrosse students from school. (Baker, alas, looks mild compared to Jesse Jackson, who yesterday promised that the Rainbow/PUSH Coalition would pay the accuser's tuition, even if he story proved false.)"

Apparently in an attempt to be "fair and balanced" or complete, KC continued:

"That said, I was somewhat troubled by Brodhead's rather weak response to events of last Thursday. In the latest in what has seemed a poorly managed investigation, the Durham police gained entry, without warrants and apparently without the assistance of the Duke police, to Duke dorms and attempted to interrogate several lacrosse players, who all sides knew had lawyers. When asked about the matter Friday, Brodhead said he didn't know enough about the issue to comment, and hasn't said anything since.

"While Brodhead is obviously in a very difficult position, if I were a Duke parent, I would have expected more from him on this matter. From the standpoint of legal ethics, the police were clearly in the wrong; pragmatically, the DNA and photo evidence of the past week, while not exonerating the players, substantially boosted their presumption of innocence. In an era of speech codes, when universities often improperly act in loco parentis, there are times when administrators ought to act in loco parentis. Police offers attempting to gain access to dorms to question students without their lawyers' presence is one such instance."

It was a harbinger of much worse to come, KC.

On April 20, 2006, Mr. Brodhead announced at the annual meeting of the Durham 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 was bad enough" (even though it had been publicly announced on April 10, 2006 that initial DNA tests failed to connect any of the players to the false accuser and Mr. Brodhead knew or should have known that Ms. Mangum's credibility was, at best, doubtful).

The next day, KC posted not a caustic condemnation of that appalling comment, but a simple,but futile, suggestion that Mr. Brodhead should be more active in promoting the presumption of innocence.

"...if Duke president Richard Brodhead really is serious about using the recent events to improve campus culture, there’s an issue that should be addressed: the 'campus culture' of guilty-until-proven-innocent exhibited by a vocal faction of the student body and a very vocal minority of the faculty in the initial weeks after reports of the rape accusation emerged. Duke is, after all, a campus where, before even hearing both sides’ initial version of events, students and some faculty held candlelight vigils and protests with slogans such as 'Real men don't protect rapists'; where a prominent faculty member, Afro-Am Studies professor Houston Baker, issued a public letter urging that the lacrosse players be dismissed from school; where students produced a 'wanted' poster with photographs of 43 of the 46 white lacrosse players, accusing the players of withholding evidence, with one student participant noting, 'It is dangerous to wait for the conclusion of the criminal investigation because the community, in strong numbers, have raised their voices of what this means to the history of the University.'"

If KC condemned that "bad enough" statement in one of his May 2006 posts, I missed it.

In searching for it, however, I noted in a May Day 2006 post KC's claim that: "[t]wo team captains hired exotic dancers, supplied alcohol to underage team members, and concluded a public argument with one of the dancers with racial epithets."

I believe that KC was right about this first two claims, unfortunately.

But did David Evans and Dan Flannery "conclude[] a public argument with one of the dancers with racial epithets"?

I hope not. Their written statements to the Durham police did not say so and Brad Bannon described David Evans as "one of the most honorable and stand-up people [he had] ever met or known in [his] life." I doubt that kind of fellow would use racial epithets, much less direct them at an erotic dancer."

In any case, although KC strangely gave Mr. Brodhead the benefit of the considerable doubt as to whether his limited apology was heartfelt or tactical, that was about all that KC said in praise of Mr. Brodhead in his highly critical latest post:

"At Duke...Richard Brodhead bent over backwards to accommodate the extremists in his midst—even when they (a) abused their in-class authority as professors; (b) produced a guilt-presuming statement falsely suggesting formal endorsement from five academic departments; and (c) appeared to violate the Faculty Handbook in their statements and actions about Duke students. Only Brodhead knows whether he did so because he (to borrow Steve Baldwin’s phrase) feared 'the wrath of the righteous,' or because he genuinely believed in a one-sided approach to the case. Either way, Brodhead not only survived but received rave reviews from the Trustees’ review committee. The moral: administrators who appease even the worst of the race/class/gender extremists will not risk their employment status by doing so.

"...Brodhead’s obvious intelligence, heartfelt (if belated) apology, and strong support from BOT chairman Bob Steel worked in his favor...."

The tragic reality is that Duke, under Mr. Brodhead, is in cover up mode, having bought confidential settlements with the Dowds and the Duke Three, and currently negotiating to avoid the filing of complaints, not to mention potentially devastating developments in discovery and at trial if lacrosse players who were not indicted sue Duke.

Would it be quixotic for them to sue Duke?

It would be the right thing for them to do, because the right thing is not going to be done at Duke voluntarily and confidential settlements make the confidential settlers cooperators in cover up.

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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