Topic category:  Other/General

Susan Estrich claims to have been raped in 1974. I believe her. I doubt she hallucinated or fabricated. Unfortunately, about thirty-two years later, it appears that SHE made the Duke men's lacrosse team additional victims of that rape, because she seems to have deluded herself into believing that THEY are either gang rapists or protectors of gang rapists and so she's attacking them.

In a 2001 interview conducted by Kristen Lombardi, Ms. Estrich discussed the 1974 incident and her gratitude to the Boston Area Rape Crisis Center (BARCC):

"I learned about the BARCC in an examining room at Boston City Hospital in 1974, the bad old days [for victims]. I had been raped in the parking lot behind my apartment building.... I was unbelievably uncomfortable. The police just said, 'Next stop, Boston City.' The doctor couldn’t believe such a thing would happen in Back Bay. This woman entered the room. She was from BARCC.... I remember her looking at the doctor, saying, 'I believe it. Why don’t you just do your examination?' I thought, 'My God, I have a friend.' The one group that understood what I was going through was the BARCC."

Ms. Estrich did not speak of the incident for years. To the question why she spoke out about it, she replied: "I got stronger. I’ve always said [survivors] should speak out when they’re ready. The first time I taught a rape-law class at Harvard, I told my students, 'I will try to be fair, but I’m not objective on this subject.' I got late-night calls from someone claiming to be one of my students who said, 'It sounds like you enjoyed [being raped], and would enjoy it again.' I thought, 'Is this the price of speaking out?' I get enormous satisfaction from speaking out.... But it has its costs."

Ms. Estrich is right about speaking out, and she is right about not being objective. Unfortunately, she has not been fair to the Duke lacrosse team, preferring to cling to a belief in the veracity of the charge long after the charge had been exposed as baseless.

Ms. Estrich insists that rape law is still too accused-friendly: "There have been major changes in the law. Virtually every state has enacted rape-shield legislation. Most have gotten rid of definitions for resistance and force. Our procedures for treating rape victims have changed. But it’s still tough. No one out loud argues that no means yes. But talk to a woman who is raped by a man today. You still hear about the DA not wanting to prosecute, the man hiring an investigator to look into her past, the questions of whether she invited the rape or asked for it."

Ms. Estrich apparently presumes every rape accusation is true and every attempt to determine whether the accuser is credible is contemptible. Apparently, a rape can warp the good judgment of even Ms. Estrich.

On April 23, 2006 (before it was apparent that the so-called Duke rape case was really the Duke rape hoax), Ms. Estrich wrote a self-revealing article titled "Why Would Accuser in Duke Rape Case Lie?"

If Ms. Estrich's father had been accused of rape by an ex-convict stripper/"escort," would Ms. Estrich be so incredulous at the thought that a rape accusation could be a lie? Did she sleep through the Tawana Brawley case?

Yes. Ms. Estrich put aside Durham District Attorney Mike Nifong's 70 or so media performances soon after the accusation (Nifong IS a fellow Democrat) and came out swinging at the defense for fighting back:

"The defense is in full swing in the Duke University rape case. Forget about cameras in the courtroom. The cameras have replaced the courtroom.

Your presumption turned out to be wrong, Ms. Estrich. It turned out to be a rape hoax.

"One network has exclusive photos of the accuser, released to show her supposedly smiling, except her face is covered to protect her 'privacy,' (an absurd notion at this point), not to mention a total contradiction of the justification for releasing the picture in the first instance."

Based on your comments on the 1974 incident, I think a supposed rape victim smiling is newsworthy, and concealing her identity is unleveling the "playing field" and presuming guilt instead of innocence. Or are old child molesters presumed to be innocent?

"Another network has one of the accused’s lawyer’s doing a full alibi defense, complete with time lines, ATM deposit slips, phone records, and the testimony of a cab driver."

Imagine that. An accused ready, willing and able to document his innocence. May all who are falsely accused be so lucky.

"Meanwhile, all you have to do is type in 'Duke accuser’s name' in your Google search, and you’ve got it. So much for privacy.

Why should the name Crystal Gail Mangum be concealed from the public?

The names of the Duke Three were made public and NO ONE has come forward and alleged that ANY of them engaged in inappropriate sexual conduct, much less rape! William Kennedy Smith was not so lucky (and HE was acquitted, after the court banned evidence of THREE alleged instances of "bad behavior" by him)!

It turns out that Ms. Mangum accused three young men of having raped her years before. And that she is an ex convict with a scary record.

Shouldn't the general public be encouraged to come forward with relevant evidence, regardless of whether it helps the prosecution or the defense?

"The commentators are out in force along with the lawyers, almost all of them having concluded that the prosecutor is playing politics and the victim is a liar and a whore. After all, it was an escort agency that sent her, I read five or six times."

Ms. Estrich, didn't the fact that the DNA found inside Ms. Mangum came from several men (NONE of whom was on the Duke lacrosse team) give you a hint those commentators were right?

"Bob Bennett, the lawyer famous for his defense of Bill Clinton in the Paula Jones case, and retained by the friends and family of the team to get their 'message out,' has been on the case for a little more than a week; if any of this is his handiwork, they’re certainly getting their money’s worth.

Is that what's called "sheer speculation," Ms. Estrich?

"To be sure, no one has explained why a woman would leave her cell phone, makeup case and money in the bathroom, but those are just details. According to the defense, she was drunk, and polishing her nails. Polishing her nails? There must be a better explanation, but that’s what a real trial is for."

The only "evidence" against the Duke Three seems to be Ms. Mangum's repeatedly self-contradicted word, Ms. Estrich? Each of the Duke Three has passed a polygraph test. Has Ms. Mangum? William Kennedy Smith's accuser passed TWO before he was charged? Different standards depending upon whether the District Attorney is in the race of his life and the black vote can save his job if he puts aside the usual identification procedure, treats Ms. Mangum's final version as credible and secure indictments of some white Yankees from wealthy families before primary day?

"This is obviously a nightmare for the young men who have been charged, if they are innocent."

No wonder Mike Dukasis picked Ms. Estrich to run his 1988 presidential campaign. Such a command of the obvious (while ignoring the impact on their families and friends and the reporting and prosecution of rapes across America if they are innocent, which they are).

"But before we can know that, the system has to work its way through. We have yet to hear the prosecution case, yet to hear from the woman directly. Until we do, how can anyone reach a conclusion? Once we do, there will be plenty of time for appropriate action."

Let's keep the hoax going at least past Election Day?

"In the meantime, consider the messages that are being sent by the behavior of the various parties to date."

That's fair.

"Let’s start with the team parents, who should be furious with their sons for blowing their season and embarrassing their school. And yet apparently not one parent, not one, has said to her son, 'you go in there and tell the police the truth about what happened.'"

Once again, Ms. Estrich automatically assumes the charges are true and there is a cover up. Wrong on both. It is the Duke University Administration that has embarrassed Duke. If all college students who attend a party with strippers where there is bad language, beer and loud noise are suspended, how many students will still be eligible to attend classes?

"Yes, I know the Fifth Amendment says criminals don’t have to talk. I teach criminal law. But what are we dealing with here? The mafia, or a sports team from a first-class university. Instead, they hire them lawyers to trash the victim and the prosecutor."

So Mafia membership is a requirement for Fifth Amendment rights? You have become unhinged, Ms. Estrich. We can blame your rapist, but you need some help.

"And what about the message to all the legitimate rape victims out there? I don’t know if the accuser here is telling the truth, but neither do all the people who have been trashing her with a vigor I have never before seen in the 25 years I’ve been writing about and teaching rape law."

So a false accuser must not be exposed so legitimate rape victims" are not deterred? Just whose sons, or fathers, or brothers should be sacrificed for the cause?

"What this kind of 'trashing the victim' does is to reinforce the worst of the history of rape law, which is a history of both racism and sexism, in which the most serious offense was the rape of a white woman by a black man, and the least serious the rape of a black woman by anyone."

Telling the truth about a false accuser is, by definition, NOT 'trashing the victim"! in that case, the victim is the accusee.

"Moreover, it wasn’t so long ago that 'exotic dancers' were for all intents and purposes 'unrapeable.'"

So, to compensate, we believe whatever they say? or whatever they say if they are black and their targets are white, or rich whites, or rich white Yankees? Two wrongs don't make a right.. Ms. Estrich.

Ms. Estrich's position: "[N]othing protects a victim from public humiliation in a high profile case, especially when the press allows itself to be used, as it has been here, and when people who know very little about this area start speculating, as they’ve been doing with abandon."

Thjey seem more knowledgeable than you, Ms. Estrich. They know Ms. Mangum is NOT a victim.

"The District Attorney is playing politics, the commentators scream. How do they know that? Because they’ve bought the defense case, without hearing the other side, and if you buy the defense case, why other than politics would you indict innocent men? But why not just wait until both sides have their day in court, and turn down the heat?"

How long should injustice be allowed to continue. Don't you believe that justice delayed is justice denied. Or is a little denial of justice okay in the Duke case and, if so, why?

"The prosecutor, initially under pressure for failing to act swiftly, made the mistake of talking early, saying he was convinced that a crime had occurred. Then he decided to shut up, which is the right thing to do, and save it for court. That has given the defense, and some of the know-nothing commentators, a clear field."

He should be able to start a war and then end it before the counterattack? The terrorists plaguing Israel would appreciate it if you make the case that they can start and stop whenever they want.

"The way things are supposed to work, the defense should have presented its evidence to the District Attorney before he went to the Grand Jury seeking indictments; did they? Did he find it unpersuasive? Does he have another timeline, or might this be a case where the woman was indeed raped, but did what I did and what so many women do, which is literally to close your eyes and not look, so that you can’t make the best identification afterwards (another reason why the Code of Silence becomes so treacherous)."

The District Attorney did not want to listen to the defense or consider polygraph results. But you do seem to identify with Ms. Mangum, Ms. Estrich. Maybe you should have been given photos of all the white players on the Harvard sports teams and invited to pin a tail on a donkey or two!

"Do women lie about rape? Occasionally, but no study has ever found that women lie about rape any more often than men lie about other crimes. Why would they, given the stigma that is still attached to victims, and the humiliation involved in pursuing a complaint?"

Men should be challenged and exposed if they lie. So should women (including rape hoaxers).

"Is there anyone who would trade places right now with the woman in the Duke case, assuming she is telling the truth?"

The assumption is unwarranted. But it does appear she accused sons in wealthy families.

"I asked a roomful of rape experts, during the middle of the Kobe Bryant case, whether they would have called the police if it were their daughter who had come and said she were raped by the basketball star and almost to a one, they said no – not because they didn’t believe her, but because they wouldn’t put her through the ordeal."

It does not follow that false accusations should not be refuted.

I"f this woman is lying, she will not only be humiliated publicly but could be prosecuted criminally. Her life will be ruined. It would be far far easier to admit you were drunk."

You can't bring a lucrative civil suit if you were drunk instead of raped.

On June 4, 2006, Ms. Estrich wrote a follow-up titled "Needed: A Special Prosecutor for the Duke Rape Case."

A special prosecutor for the Durham District Attorney and Ms. Mangum would have been a better suggestion.

Ms. Estrich is more stubborn than sensible: "By now, I think I maybe the only 'expert' commentator who has not given up completely on the prosecution in the Duke rape case."

I hope you deserve that "distinction," Ms. Estrich.

Ms. Estrich continued: "Even my friend Greta [van Susteren], who tends to be the fairest of the fair, albeit a former defense lawyer, is shaking her head in disgust."

That's NOT a big enough hint, Ms. Estrich?

"The prosecutor has totally lost the public trial. First he talked too much. Then he didn't talk at all. The result is that in the court of public opinion, he has been totally outmaneuvered by the high-priced defense lawyers who the student defendants and their wealthy supporters have been able to retain."

Meaning the facts came out and it's obvious the indictments were unwarranted.

"Is Mike Nifong, the local prosecutor, really any match for Bob Bennett, the legendary Clinton defender hired by the Duke team parents? Should we expect him to be? So why not hire Bennett's equal to represent the state?"

When you go around the bend, Ms. Estrich, you go all the way. Mr. Bennett is not representing any of the Duke Three. And if the state hires a substitute for Mr. Nifong, should it pay the defense costs too?

"The prosecutor himself has not paid for his mistakes. Quite the contrary. Having won the Democratic primary for District Attorney, he is on his way to reelection. The price to date has been paid by the accuser, who has been called every name in the book, starting with a liar, even though she herself has said nothing publicly; and potentially by other victims, who cannot be blamed if they wonder if they will meet a similar fate, particularly if they complain about men who are richer and more powerful than they are."

I blame Mr. Nifong for plenty, including professional misconduct, but the fundamental problem with the prosecutions is the facts, not the prosecutor.

"It is bad when that happens in a public trial. It is far worse when it happens, and it does sometimes, in a courtroom."

It is good when the truth prevails. "To ensure that it doesn't, this is one of those cases where the public prosecutor needs to step aside and bring in a private attorney as a special prosecutor. There simply must be a fancy lawyer or law firm in North Carolina that has not been involved in this case to date, and would agree to take it on, devote the resources necessary, match the defense in every way, and give the accuser and the people the same high quality representation that the defense will receive."

Let's let Ms. Estrich decide how to waste the taxpapers' money on continuing a shameless political persecution! She's not elected to anything, but she will decide when the prosecutor is not good enough. So much for the will of the people and their duly elected representatives.

"That is precisely what happened when the State of Indiana tried Mike Tyson for rape. And the prosecution was successful, unlike so many other high profile trials in recent years that have been mishandled by local prosecutors."

So if the accused is acquitted, the local prosecutors are to blame?

"Think William Kennedy Smith, a complete mess of a trial, where Roy Black totally outlawyered the prosecution. Or think Michael Jackson, another prosecutorial abomination. Or think about the granddaddy of them all, O.J. Simpson, a slam-dunk winner of a case that became a clear loser, because the dream team beat the home team."

The judge threw out those three complaints about earlier sexual misconduct by Mr. Smith. Michael Jackson's prosecutor was as obsessed with "getting" him as Captain Ahab was with harpooning Moby Dick, but the case reeked of reasonable doubt (as I wrote long ago). And the OJ case was jury nullification in action, as the issue became whether Mark Fuhrman should have used the N word instead of whether OJ was a murderer and the politically savvy Los Angeles District Attorney tried the case downtown instead of where the killings occurred.

"In the legal hierarchy, federal prosecutors (for instance, the Enron team) have far more resources at their disposal than the local prosecutors who are responsible for rapes and murders. That isn't a problem, as a general rule, since defendants in rapes and murders are mostly poor people, who have even fewer resources at their disposal than the local prosecutor, so the deck is still stacked — some would say unfairly so — in the prosecution's favor."

Stacking the deck ISN'T A PROBLEM?

"But there are exceptions, and date rape is generally one, as is middle class spousal murder. Even so, most of these cases get plea bargained away, so the exception doesn't count for as much. It is when these cases go to trial, and when they command enormous public attention, that the exception turns the tables. It is in those cases that the defendant is in the commanding position, and the public – not just the victim – may find itself on the short end of the stick."

Again, you assume that accuser is the victim, Ms. Estrich. Why waste time and money on a trial if all accusers are victims and their accuseds are guilty?

"It doesn't have to be this way. Virtually every jurisdiction allows the prosecutor to 'deputize' private lawyers to serve as 'special' deputy district attorneys, even if the district attorneys hate to admit it. Even where there is no specific provision allowing special prosecutors, where there is a will, there is a way."

You are way over the top, Ms. Estrich.

"In the immediate aftermath of the arrest of O.J. Simpson, as the defendant was assembling his 'dream team,' I suggested that the prosecution should do the same. My idea, then as now, was that the D.A. should reach out to the legal community in Los Angeles for the best trial attorneys, appellate specialist, forensic experts, etc – from outside the government, from private law firms and academia, so that 'the people' would be as vigorously represented as the defense."

Who is supposed to pay for your ideas, Ms. Estrich?

"Then District Attorney Gil Garcetti, who was otherwise a good friend, called into my radio show (in those days, liberals were allowed to have their own radio shows on the top AM stations in L.A.) to complain about my brilliant idea."

You were surprised?

"How dare I suggest that his office wasn't up to the task, he asked. No offense intended, I responded. But in high profile cases, the public interest in a successful prosecution is much higher than in the usual, invisible case; and because of the high profile, the case became all the more attractive to a private firm, which will see a publicity benefit in taking on the project. He, obviously, didn't agree. The rest, as they say, is history."

The people elect district attorneys, not private attorneys who want "a publicity benefit."

"A successful prosecution doesn't have to mean that a conviction results. It means that the public is convinced that the case is being handled correctly, fairly, aggressively, but also judiciously. That simply doesn't exist now. Because of Nifong's early comments and subsequent silence, whatever he does now is suspect."

Yes, he's a suspect.

"Consider his decision not to accelerate trial in this case, but rather to schedule it in the usual course, which will result in a trial sometime next year."

Yes. let's consider that denial of the right to a speedy trial. Not a vote of confidence in the prosecution's case, is it? Should a prosecutor indict first and investigate later?

"Because the defendants are out on bail, rather than being held in prison, they have no claim to be at the front of the line. Missing a semester of school does not give rise to a constitutional speedy trial claim, although it may cause universities to rethink their own treatment of such cases. But to hear the so-called 'experts' on television, you might think Mr. Nifong had changed the law and violated the basic code of prosecutors. He's put off the trial unfairly, I heard one commentator say with great outrage. It's totally wrong, agreed her equally uninformed colleague."

Oh my. The price of a speedy trial is staying in jail! So much for equal justice for the wealthy!

"The only way all sides will ever be convinced that this case has been handled fairly is if someone other than Mike Nifong handles it. The defendants deserve that; the accuser deserves that; and most important, the people deserve that."

The case has NOT been handled fairly.

"Let Nifong pick the prosecutor; if his handpicked choice believes there is no case, or no case against one or more of the defendants Nifong has indicted, then so be it. Nifong should have no reason to complain if his own choice disagrees with him."

What we really need is someone picked to prosecute Mr. Nifong and Ms. Mangum.

"But if one or more of the finest lawyers in North Carolina decides to go forward, and does, then at least we can stop hearing about how this whole thing was just an effort by Mike Nifong to keep his job. And for that alone, the special prosecutor will have earned his or her pay."

It WAS an effort by Mr. Nifong to keep his job. A new prosecutor can't rewrite history to protect a fellow Democrat, Ms. Estrich. And how about some concern for the "Yankees" being tried in Durham, where the "old boys" rally around Mr. Nifong and would be loathe to see him exposed?

Not content with that, on July 12, 2006, Ms. Estrich wrote "Another Team Rape" (insinuating that Ms. Mangum was the victim of a "team rape":

"This is not the Duke lacrosse team.

"There are no fancy lawyers, no committee set up to support the players, no Bob Bennett on board to spin the press. There have been no national press conferences, no visiting anchorpeople clamoring for interviews. The team isn't ranked, the players weren't stars -- no one has any money. And it's ugly.

"When six prospective members of the Fresno City College football team arrived at the Fresno, Calif., Police Station to be questioned about the alleged rape of an 11-year-old runaway, the only advice they had came from a lawyer whose son once played for the team.

"For free, he told them that if they didn't do anything wrong, they should provide statements to the police -- and if they had done 'something to be concerned with, even if it was consensual, or if they had done something to abet or aid, they might want to exercise their Fifth Amendment rights.' This, according to the local paper.

"The police do not always get roadmaps so easily. The Duke boys didn't give them statements. They don't give roadmaps to the police. They never talk to the police without having their own lawyers present.

"Two men have already been arrested and are in custody. The Duke defendants are all out on bail.

"The police were called last Saturday night after the girl left an apartment that had apparently been rented for the players, most of whom come from out-of-state, where two-year colleges routinely don't offer football. The sheriff has said that evidence at the scene supported the girl's story. According to the lawyer, the boys said 'she was tall and had some development. ... They all said she "looked like she was 18 or 19 to me."'

"Maybe so. But as the lawyer told them, it's no defense to child molestation that you don't know it's a child -- and no defense to oral copulation with a child under 18 that you don't know her age.

"The girl had run away from a group home. Her life no doubt wasn't very good to begin with. For the boys, convictions will likely ruin the chance they had to escape. The two-year college scholarship might have lead to another one, to a four-year school, to a degree, to a different life.

"All for what?

"Stupid. Stupid. Stupid. It wasn't a party. They were going back and forth between apartments.

"According to the sheriff, 'as many as 10 men' may have been involved in the assault.

"Ten men and one girl.

"It doesn't matter if she's tall or small. It doesn't matter if she looks older than her age or not. Practice was scheduled to begin in August. These guys had everything to lose and so little to gain.

"Why would 10 men assault one girl?

"They're football players. She's a girl. There are 10 of them and one of her.

"Why would anyone do nothing and let it happen?

"Can we teach this?

"Yes, of course, she shouldn't be there, the group home should be better, someone should be helping her -- but she is there, and is there one of them who has a sister, who can see a disaster, a horror show, a human spectacle about to unfold? Is there one human being who stops a travesty from happening not only because it will end up ruining their lives, but also because it will ruin hers?

"How many stories like this have to happen, how many teams have to go down, how many chances have to go up in smoke, first?

"In that respect, it is like Duke, only these boys will pay and pay.

"Will conservatives defend them, too? "

"In that respect, it is like Duke, only these boys will pay and pay."

Ms. Estrich, I am not familiar with the Fresno City College football team, so I don't know whether they should be suing you for defamation, but it seems to me that you have defamed the entire 2005-2006 Duke University men's lacrosse team: "In that respect, it is like Duke, only these boys will pay and pay."

It is tragic that the consequences of rape can be so long-term, but that does not excuse savaging the Duke's men's lacrosse players or putting on blinders so as not to see that the Duke rape case is really the Duke rape hoax.

Michael J. Gaynor

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.