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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:  January 12, 2008
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Duke Scandal: We Now Need Disclosure, Not Closure

The wronged should be compensated, of course, but, even more importantly, the truth about the way Duke treated the members of the 2005-2006 Duke University Men's Lacrosse Team should be exposed, not left concealed, and corrective action should be taken, not avoided.

The real Duke scandal was not the off-campus stripper party, but the way Duke University's administrators and much of its faculty responded to the Hoax.

The title of the book on the Duke case by Stuart Taylor Jr. and KC Johnson is Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Case. The co-authors fairly connected political correctness and shameful injustice, but the politically correct powers that be at Duke have been loathe to reveal what happened and to rectify the wrongs committed in the name of political correctness.

Duke University quickly tried to "move on," by secretly settling, first with the Dowd family, which had sued Duke over punitive grading related to the bogus gang rape claim, and then with the families of the Duke Three--David Evans, Reade Seligmann and Collin Finnerty.

Duke thought that the rest of the members of the 2005-2006 Duke University Men's Lacrosse Team would decide that suing Duke was not the right thing to do.

But it is THE RIGHT THING TO DO and Ryan McFayden, Matt Wilson and Breck Archer boldly did so.

Sadly, Duke's student newspaper, The Chronicle, seems more concerned with closure instead of disclosure.

This January 9, 2008 editorial is disappointing:

"Duke has attempted to avoid these lawsuits with the offer of financial reimbursement and has adamantly maintained that it will fight the case against itself and its employees. We encourage Duke to come forth with any and all details that have not yet been released-if indeed any exist-and thereby avoid similar suits in the future. But more likely is that the case will only fuel the fire of the vocal minority who believe that Duke and Durham had it out for the lacrosse players all along.

"The 35 causes of action in the case range from conspiracy to concealment, from negligence to fraud. Mistakes were made in the handling of the case, and some believe this was deliberately orchestrated-a claim this suit will hopefully put to rest, one way or another.

"A few in the community still feel the lacrosse case is unsettled. Most students, however, have long since moved on and no longer follow the intricate details of the case and those involved. This lawsuit may raise issues people would rather ignore, but we hope that it eventually provides some closure."

Shame on the editors!

An anonymous poster at the Chronicle website was rightly appalled:

"What has happened to investigative journalism at The Duke Chronicle?

"One would think that student journalists at the Chronicle would be investigating vigorously the allegations included within the Ekstrand filing, if for no other reason than to determine if they are true.

"Instead, we see a shameful willingness to act as drones for the Duke administration, repeating 'most students have moved on', as though that resolves the injustice done to Duke students.

"Is there not one journalist on the Chronicle staff willing to take on these tough issues? Who has the courage? Please stand up.... for the truth!"

A high school lacrosse mom offered a plethora of reasons why Duke students should NOT "move on" yet.

"I believe that most Duke students have 'moved on'. But, here's questions related to this lawsuit that I think would impact me if I were a student:

1. Who hacked and released Ryan's 'American Psycho' email? What's been done to make sure this never happens to an email that I send to a friend?

2. I know that at least 1 professor cheated on grading lacrosse players, giving them undeserved failing grades. As far as I know, that Professor wasn't fired even though Duke settled a lawsuit out of court filed by one of the students and had to change the grade. What's being done to make sure that a Duke professor can't fail me because he or she doesn't like my extracurricular activities?

3. I know that the federal government mandates certain privacy laws for colleges to follow. It seems that when Duke released entry card information to the Durham police without a subpoena, they didn't follow those rules. What's being done to make sure Duke doesn't mess with my privacy rights?

4. How come Duke agreed to let Durham police arrest students for partying when other people in Durham don't get treated that way for the same or more serious offenses? What happened to our civil rights?

5. According to this lawsuit, Duke police had jurisdiction over the lacrosse case and they determined that no rape occurred. Then Duke turned the complaint over to Durham police to investigate the possibility that 1 stripper stole money from the other stripper [not to investigate a rape charge]. When Durham police decided to investigate a rape [putting a police officer in charge who had been already been removed from duty in the Trinity Park area for his treatment of Duke students], why didn't Duke stick up for its students? If the administration won't listen to their own police department, what would happen if I did something wrong?

6. Why did Dean Sue and other administrators give recommendations to the students like, 'don't tell your parents; you don't need a lawyer - you can use ours' [even though he wasn't really representing the students] and not explain any of the potential consequences of the team DNA test? Why did Duke's administration tell the students that confidentiality applies when the students talk w/ the administration?

If I get in trouble, who can I trust at Duke if Dean Sue lied to the lax players?"

A Duke dad was disgusted, but undaunted and determined, as the editors of The Chronicle should be:

"The current Chronicle crew keeps saying 'move on' yet the case of the attempted frame-up of the 2005-06 Duke lacrosse team stays on the front page of the Chronicle.

"Perhaps the reason is that the full story has not been revealed. The case filed by Mr. Ekstrand appears to be an effort to expose what really happened. Up until now, Duke has spent millions paying off previous claims by Messrs. Seligmann, Finnerty, Evans, Dowd and Pressler, in effect buying their silence. The players represented by Ekstrand were harmed in a number of ways by Duke University. The fact that they, or the other unindicted players, have not accepted Duke's proposed settlement to cover attorney fees and out-of-pocket expenses indicates that they are not just out for money.

"The suit is wide-ranging because a large number of Duke employees contributed to this fiasco, starting from Bob Steel all the way down to Tara Levicy RN and others who were at Duke University Medical Center.

"This suit and the upcoming discovery can disinfect by shining sunlight on some dark dealings which happened in 2006. It's not too late.

"Duke will not avoid new catastrophes if it does not learn from past mistakes. There needs to be accountability. Trying to sweep everything under the carpet is not a good alternative."

A graduate student demonstrated the wisdom of the child who dared to say that the Emperor (who really was naked) had no clothes on: "[W]e haven't moved on, we're just ignoring the elephant in the room. We all realize that Duke has not done anything to fix the faculty and administration 'culture' that contributed significantly to the case."

Mike Lee is pessimistic and not pretending:

"This editorial is right that most people have moved on, even the most ardent supporters of the lacrosse players. That doesn't necessarily mean that people feel the case has been resolved fairly or properly.

"Durham's government and police force are laughingstocks and officers Gottlieb and Addison as well as the City Manager Baker (and Chief Chalmers who co-wrote the ridiculous report about the line-up that wasn't) have yet to be held accountable for their roles. Members of the Duke community also have yet to be held responsible for their actions. It's clear that many of these individuals will never apologize or acknowledge their errors. While there may be no major repercussions, Duke has egg dripping from its face due to the actions of the Group of 88.

"Fair minded individuals simply want everyone involved in the case held responsible for their actions. We're a long way from that and it's likely we will never get there."

In addition to the editorial, the January 9, 2008 issue of The Chronicle published a report by Chelsea Allison on the pending civil suit against Duke.

Ms. Allison:

"Three unindicted members of the 2005-2006 men's lacrosse team filed suit Dec. 17 against the University, the city of Durham and others, claiming that the pursuit of the now-discredited rape charges against three teammates also wronged them and highlighted a wider conspiracy against Duke students.

"The 379-page lawsuit, which reads like a narrative, was filed in Greensboro federal court by Durham attorney Bob Ekstrand, Law '98 and a lecturing fellow at the School of Law, on behalf of senior Ryan McFadyen, Matt Wilson, Trinity '06, and Breck Archer.

"'This case is a reckoning; it is an accounting of those who were willing to obstruct and pervert justice to serve their own selfish aims, those who had the power to intervene and did not, and the damage they have done,' the suit reads.

"It does not specify damages sought, and emphasizes a hope to establish accountability for what happened.

"The 45 defendants have 60 days to respond from the time of the filing, and progress might be expected by early March. Along with the University and Durham, the defendants include President Richard Brodhead and other top administrators, Duke University Health System, former Durham district attorney Mike Nifong and the director of the laboratory that examined the DNA, among others-a group the suit refers to as the 'Consortium.'

"In a statement released the day after the suit was filed, Duke officials said the lawsuit was misdirected against the University, adding that legal reparations had been offered to the players but were not accepted.

"'Duke made some mistakes when the allegations first surfaced in the spring of 2006,' the statement reads. 'The cause of any harm felt by the players, however, clearly lies with parties other than Duke.... We were and remain disappointed those offers [of compensation] were not accepted. We will aggressively defend the University in this matter.'

"Kimberly Grantham, Law '94 and senior assistant attorney for Durham, said she could not comment on the matter and that the city was not planning to release a statement at this time.

"Law professor James Coleman, who has not read over the filing, said although the men might have a legitimate case, the length of the suit would make it difficult to respond to, potentially making it easier for litigators to make blanket claims.

"'It's a lot to try to wade through to see what the substance of their complaint is,' Coleman said. 'This seems to be a situation where lawyers have sort of taken over the management of the students' response to this.... A 400-page complaint is pretty extraordinary. One would think if there's been injury it would be more readable and straightforward.'

"The suit lists 35 separate causes for action, including conspiracy, negligence and fraud.

"It includes a comprehensive timeline of the case's progress, which began in April 2006 after Crystal Mangum alleged that she had been sexually assaulted at a party hosted by members of the team, who had hired her as an exotic dancer.

"The complaint also details a multidimensioned conspiracy between the Duke and Durham police departments, which the suit alleges had developed a 'zero-tolerance' policy for Duke students.

"All three plaintiffs were suspended by the University at some point for separate offenses, which the suit claims could be interpreted as discrimination related to the rape allegations.

"McFadyen was suspended April 5, 2006, for a graphic e-mail he sent shortly after the party, which was meant to parody fictional serial killer Patrick Bateman from Bret Easton Ellis' novel, 'American Psycho.' McFadyen was later reinstated and did not face criminal charges.

"The lawsuit alleges that concerted conduct against Duke students and the protraction of the lacrosse case included the Durham Police Department's putting the e-mail's content-which aroused considerable media attention when it was made public-in a search warrant application, without including replies to the thread that showed McFadyen was joking.

"Wilson was suspended from the lacrosse team indefinitely when Mangum identified him as potentially being her attacker in April 2006, but he ultimately was not indicted. The suit alleges that the suspension was not long-standing University policy.

"Archer was put on forced leave in Fall 2005 for 'failure to comply,' when he failed to submit a form after he completed mandatory community service for damage done to his dorm room.

"Coleman added that it appeared that because much of the complaint was devoted to mapping out the history, it blurred the actual causes for action.

"'I think they ought to be forced to state them in a way that doesn't require people to read 400 pages to figure it out,' he said.

"This is the second lawsuit filed by an unindicted member of the team. Kyle Dowd, Trinity '06, settled with the University after he alleged grade discrimination by Kim Curtis, a visiting associate professor of political science and a member of the so-called 'Group of 88.'

"Washington attorney Charles Cooper confirmed in September that a number of the players and their families had retained him as counsel, and ABC News reported that month that the parties were exploring the possibility of filing suit.

"Coleman said he would not be surprised if more players filed complaints, but he was not certain about the legitimacy of their claims. He added, however, that he felt any who were injured should be compensated.'

"'This is sort of the entrepreneurial phase of the case: People are now seeking opportunities to be compensated for what happened.... It's too bad that this case is now sort of warped into this kind of endless litigation.'"

Amazing! Professor Coleman apparently has a big problem with reparations for actual victims of his employer.

Litigation is the hope for the truth to prevail. It beats confidential settlement, which is a type of complicity in coverup.

The wronged should be compensated, of course, but, even more importantly, the truth about the way Duke treated the members of the 2005-2006 Duke University Men's Lacrosse Team should be exposed, not left concealed, and corrective action should be taken, not avoided.

The sooner the rest of the unindicted players sue Duke, the better. Delay is deadly.

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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