Topic category:  Other/General

Short answer: No.

On August 16, 2006, I announced what should be ecstatic news for supporters of the Duke Three (surely the ones who want the nightmare to end sooner rather than latter) in an article entitled "The '60 Minutes' season opener should close the Duke case."

The gist of my article:

"Mike Nifong, make a note: as of now, on September 24, 2006, an inevitable hour of infamy finally will follow your undeserved and disgraceful fifteen minutes of fame and you will realize that your short-term political gain from your deplorable (political) decision to prosecute (and persecute) the Duke Three was NOT worth it. "Sure, you played the race card, it won you the Durham County, North Carolina District Attorney Democrat primary, and that would be tantamount to election if you are not exposed before Election Day 2006 as a shameless political hack whom Durham County's good people will not want back. Mr. Bradley, '60 Minutes''s Ed, will leave you politically dead. You'll wish you had refused to play the race card and acted professionally instead of politically and objectively instead of objectionably."

At the Friends of Duke University website (where the moderator flip flops on the suitability of criticism of defense strategy), the initial reaction to my announcement that "60 Minutes" was focusing on the Duke case was mostly suspicion.

Three "Anonymous" posts:

"Re the rumored 60 Minutes Duke story:

"I, for one, am not going to set my expectations too high. If it delivers as billed, then it will be a most welcome surprise.

"Keep in mind, we're dealing with the same mainstream press that tried to railroad the Duke Lacrosse team in the first place."

"Hearing that 60 Minutes will cover this case reminds me of the saying: when the gods wish to punish you, they grant your wishes. Therefore be careful of what you wish for."

"When dealing with 60 Minutes, one should always watch their 6."

A broken clock is right  twice a day.  Even the ACLU is occasionally right.  Exposing the Duke case as a hoax and Mr. Nifong as a dangerous political lack (even though he's a Democrat) will be good for CBS and "60 Minutes" to do.  Wise folks at CBS News realize that this is an instance in which doing what is morally right coincides with personal and corporate interests, including long-term political interests. The sooner the case is collapsed and Mr. Nifong is out of office, the better.  The issuance of that unconstitutional broad gag order by Judge Kenneth Titus on July 17, 2006--"Counsel for the State of North Carolina and counsel for the defendants, the employees and agents of the State, the employees and agents of counsel for the defendants, and any witnesses for the State or the defendants, are hereby restrained and enjoined from communicating with the news media concerning the above-entitled criminal action except as specifically permitted by the provisions of Rule 3.6 of the North Carolina Revised Rules of Professional Conduct"--was a shot across the bow that the major media must not ignore.  Likewise, the decision by Judge Osmond Smith, the judge who got the case after it finally was classified as "extraordinary," to prohibit televising proceedings in the case is more motivation for CBS to demonstrate that the Duke case has been grossly unfair from the start, so that a stop is put to it.

On August 26, perhaps quivering anonymous posters shared their fear that "60 Minutes" will be dissuaded from exposing the Duke rape hoax:

"Re the 60 Minutes expose.

"1. Does Gaynor know for a fact that the final editing has been done?

"2. What is his basis for saying this will blow the Duke case out of the water?"

"In my opinion, Michael Gaynor's statements about the 60 minutes are causing more damage than doing any good. I wish he would stop making these speculations. I doubt very much that CBS showed him what they have. By making all these unqualified statements, he is forcing the CBS editors to 'clean up the piece' and make it a CBS piece rather than the 'case breaker' that Gaynor wants us desperately to believe we will get. I worry about Gaynor, in which planet is he operating?"

Occasionally, humor interrupts the misery and monotony that is the Duke case: the poster's conclusion that I am "forcing CBS editors" NOT to make their upcoming blockbuster season opener a "case breaker" should give those editors, not to mention CBS News President Sean McManus (a Duke graduate), a good laugh.

The final editing for a season opening presentation on September 24 in an ongoing matter probably will not be done until hours, if not minutes, before broadcast, of course. 

I will not be baited into revealing sources or breaking confidences, but there is more comfort that I can provide to the concerned.

First, the idea of a blockbuster expose is not only to be fresh instead of stale, but to break news.  A report that the Duke case is disputed and not about to go to trial is NOT newsworthy.  CBS would not invest the time, effort and money it is investing in the expose to have "60 Minutes" open its next season with that. 

To those who have not noticed, the mainstream media has shifted seismically with respect to the Duke case.  After the Duke Three's initial media mauling, the mainstream media faced facts and turned on Mr. Nifong and toward the Duke Three.  Television example: New York's Dan Abrams.  Journalist examples: North Carolina's Cash Michaels and Ruth Sheehan.  Compare the May 1 and June 26 Newsweek issues and note that National Journal columnist and Newsweek contributor Stuart Taylor investigated and wrote in late May that  "the available evidence le[ft] [him] about 85 percent confident that the three members who have been indicted on rape charges are innocent and that the accusation is a lie."  Since them, it's gotten worse for the prosecution.

These days, when it comes to the Duke case, for the Duke Three, NBC stands for Nothing But Cooperation.   Tucker Carlson, host of MSNBC's "Tucker," calls it the Duke rape hoax.  Dan Abrams returned to the air when The New York Times tried to throw Mr. Nifong a lifeline, to demonstrate that the prosecution is doomed.  Fox Cable's "Hannity & Colmes" (Sean and Yawn) is balanced, with Sean Hannity having been rightly suspicious from the start and Alan Colmes relying on the hope that the defense did not give him a set of Mr. Nifong's production (it should have!) to reiterate that maybe there IS evidence of guilt that somehow will save the prosecution, despite the overwhelming evidence of innocence, both admissible and inadmissible (from DNA results to polygraph results), and the lack of credibility of Mr. Nifong's only alleged eye witness (the ex convict accuser, Crystal Gail Magnum) and chief investigator, Sergeant Mark Gottlieb (the man who prepared a 33 page written statement at the last minute, after making 2 pages of notes, that will hurt the prosecution much more than it can possibly help. Fox Cable's Greta van Susteren, who hosts "On the Record" (and also goes off the record when it's smart to do so) now sees the prosecution as wrong and her friend and occasional guest Susan Estrich, who presumes almost conclusively that a rape charge must be valid, acknowledged an epiphany of sorts with respect to the Duke case.

CBS, which tried (unsuccessfully) to bring down a President with forged documents in 2004 and subsequently fired Mary Mapes, parted with Dan Rather and put a Duke graduate (Sean McManus) in charge of CBS News, can bring down an out-of-control North Carolina prosecutor legitimately next month.  It's the right thing to do, and it will be good for CBS to have "60 Minutes" do it.

Second, investigation leads to exoneration of the Duke Three and excoriation of their accuser and their prosecutor.  CBS has been investigating conscientiously.  The facts support the defense and discredit the accuser and the prosecutor.

Third, the Duke case must not become another Scottsboro case, with a black woman substituted for two white women and three young white men for nine young black men, even though some want the Duke Three wrongly prosecuted as pay back (example: Collin Hall, whom Newsweek reported "wanted to see the Duke students prosecuted 'whether it happened or not.  It would be justice for things that happened in the past.'"

For those unfamiliar with the Scottsboro case, The Columbia Encyclopedia summarized it this way:

"In 1931 nine black youths were indicted at Scottsboro, Ala., on charges of having raped two white women in a freight car passing through Alabama. In a series of trials the youths were found guilty and sentenced to death or to prison terms of 75 to 99 years. The U.S. Supreme Court reversed convictions twice on procedural grounds (that the youths’ right to counsel had been infringed and that no blacks had served on the grand or trial jury). At the second trial one of the women recanted her previous testimony. The Alabama trial judge set aside the guilty verdict as contrary to the weight of the evidence and ordered a new trial. In 1937 charges against five were dropped and the state agreed to consider parole for the others. Two were paroled in 1944, one in 1951. When the fourth escaped (1948) to Michigan, the state refused to return him to Alabama. In 1976, Alabama pardoned Clarence Norris, who had broken parole and fled the state in 1946. The belief that the case against the “Scottsboro boys” was unproved and that the verdicts were the result of racism caused 1930s liberals and radicals to come to the defense of the youths. The fact that Communists used the case for propaganda further complicated the affair."

The "Duke lacrosse boys" have ways, means and connections that the "Scottsboro" boys did not, and they will not be railroaded.  "60 minutes" knows that, and it does not have an interest in prolonging the Duke case.

Fourth, Cash Michaels confirmed that "60 Minutes" is working on the Duke case in his latest article, "Should Blacks Trust D.A. Mike Nifong?":

"This week, a spokesman for the CBS News program '60 Minutes,' citing policy, refused to confirm strong rumors that the investigative television news magazine was working on Duke case expose’ for its season premiere Sept. 24. However sources have told The Carolinian/Wilmington Journal newspapers that that they are aware of people who have already been interviewed for the broadcast."

In the same article Mr. Michaels reiterated his informed judgment that Mr. Nifong does not appear to have a case:

"So whatever cards Nifong hasn’t shown so far will have to become evident soon, and be strong enough to convince the presiding judge that a jury of Durham County citizens should consider the merits.

"Given what’s known about the evidence so far, that would be a big 'if.'”

Mr. Michaels previously was pilloried at the Friends of Duke University website, apparently on the erroneous presumption that he was determined to see the Duke Three convicted and blind to the evidence. 

On June 23, 2006, this message was posted (anonymously) at FODU:

"I agree with the other posters than _any_ Durham African American on this jury will be essentially compelled to convict by his community.

"What else is one to say about a 'community' in which a egomaniacal charlatan like Cash Michaels is the self-appointed spokesman.

"Yes, the ultimate fallout from slavery...but 150 years out, we see a self-defeating black racism and victimology rising once again.

"And the black community gets played by a monstrously amoral prosecutor, for his own ego gratification."

The anonymous poster was right about Monster Nifong, but wrong about Mr. Michaels and the entire "Durham African American" community.

Other anonymous posters apparently shared my faith in the bulk of Durham's African-Americans.  Example: "I think the black community hates being used; being misled, and being lied to by whites, in order to be manipulated" (posted on August 2).

The real danger is NOT that a jury would convict the Duke Three after trial, but that someone determined to hang the jury would be empanelled and do it, denying acquittal and permitting retrial.

On August 2, an anonymous poster not only joined the opposition to my view that explaining that the Duke Three are NOT racists would be helpful, but insisted that the Duke case will not "improve race relations" and bashed Mr. Michaels to boot:

"I agree with the above. In my experience, most black people regard attempts by whites to show their good works and good faith as further proof of white racism. I know I would.

"At the far extreme, racists like NCCU law professor Irving Joyner and Cash Michaels see skin color and nothing else.

"They are professional race men and could/would never abandon their support of this false accuser.

"No, any resolution of this case will do nothing to improve race relations- in fact, it has only served to marginalize the blacks of Durham even further."

Let's work to prove this "Gloomy Gus" wrong on all points.

On August 15, 2006, a cautiously pleased  anonymous poster envisioned general enlightenment in Durham and doom for Mr. Nifong: "If the turn around by Cash Michaels has legs and becomes better understood within the Black Community, ie that they was 'used' by Nifong - its all over for the twerp - there's no place to hide".

The Duke case has enormous implications for society as well as the Duke Three and their families, friends and teammates.  It has potentially enormous political implications (bad for rabid Democrats dependent upon a black block vote that serves their interests, but not the interests of America or blacks).  It exposes the danger of political correctness run amok and highlights the need for reform in America's educational system, especially elite educational institutions like Duke University.  And it calls into question the fairness of rape-shield laws (especially in cases in which there is vigorously disputed that there was any sexual interaction and there is no DNA evidence to support a rape claim).  The guilty should be convicted and severely punishment, but false accusations must not be tolerated.

CBS, NBC and The New York Times have an anti-Bush, anti-Republican, pro-Democrat bias.  Exposing Durham County, North Carolina District Attorney Michael B. Nifong as a shameless Democrat political hack who manipulated Durham County's black votes is not the pre-election story these entities hope for, but CBS and NBC will do it.

The fact is that the black vote gave Mr. ,Nifong victory in the Democrat primary last May and in overwhelmingly Democrat Durham that's tantamount to election.  Mr. Michaels reported: "according to Vanderbilt University Professor Christian Grose, Nifong won 44 percent of the African-American vote in last May’s Democratic primary, outdistancing a Committee-endorsed black opponent in that race, attorney Keith Bishop, who pulled only 31 percent."

As Sports Illustrated reported, Frieda Black, whom Mr. Nifong edged out, would have won but for the black vote:  Mr. Nifong "polled 2 to 1 [versus Ms. Black] among African-American voters, an advantage that more than accounted for his victory margin of 883 votes."

The New York Times is trying to provide cover for Mr. Nifong. It published a lengthy editorial masquerading as a news story on August 26.  That article shook some Duke Three supporters, but what is remarkable is not that The Times rallied behind Mr. Nifong, but that it acknowledged that his case had weaknesses and claimed only that "an examination of the entire 1,850 pages of evidence gathered by the prosecution....shows that while there are big weaknesses in Mr. Nifong's case, there is also a body of evidence to support his decision to take the matter to a jury."

That's not saying a great deal.  A jury would also take into account the defense's case (including the evidence Mr. Nifong blithely ignored in his determination to indict, regardless of whether it was right.  And completely discrediting the accuser (Crystal Gail Mangum) and the chief investigator (Sergeant Mark Gottfried) is precisely what the defense teams of the Duke Three would do if the agony is prolonged and the case is tried.

Even what The New York Times did was too much for NBC to tolerate.  MSNBC General Manager Dan Abrams was on MSNBC's "Tucker" that afternoon to lambast The Times for publishing the article on the Duke case that day and to itemize some of the reasons he reached the conclusion long ago (despite his admitted predisposition to believe that such a gang rape claim was plausible).

Herewith Dan on "Tucker":

CARLSON:  Now to the latest in the Duke rape hoax. 

“The New York Times” entered the fray this morning with an extensive report.  The writers say they examined 1,850 pages of evidence gathered by prosecutor Mike Nifong‘s team, and here‘s their conclusion.  “It shows that while there are big weaknesses in Mr. Nifong‘s case, there is also a body of evidence to support his decision to take the matter to a jury.”

Well, joining me now to explain, a man who has read all the documents in question, NBC News chief legal corespondent, Dan Abrams, who also happens to be the general manager here at MSNBC. 

Dan, welcome.  What did you think of this piece?

DAN ABRAMS, MSNBC GENERAL MANAGER:  I thought it was shameful.  I thought it was basically an editorial on the front page of what is supposed to be the news division of the newspaper.

This is a statement by them that, while on the one hand there are weaknesses, on the other hand, the prosecution has a case.  It totally glossed over the major weaknesses in this case and the inconsistencies in her story. 

I mean, I haven‘t seen all 1,850 pages.  I‘ve seen the first 1,300 pages, which were all the documents that existed when Mike Nifong decided to indict.  And he doesn‘t have nearly enough to move forward with a case. 

And I think to just say “on the one hand, on the other hand,” is shirking their journalistic duty here. 

CARLSON:  Well, walk us through, if you would, the highlights of what you think are the weaknesses in this case. 

ABRAMS:  Yes.  All right.

So, the accuser gave a written statement to the police.  And they say, well, her statement became consistent once she got over the initial shock of it. 

Not true.  April 6th, weeks after the incident, she says about what happened, “They separated us,” meaning her and the other stripper, “at the master bedroom door, while we tried to hold on to each other.”

Problem with that?  It‘s totally inconsistent with the statement of the other stripper, who says, I didn‘t see her for about five minutes.  Apart from that, I was with her all other times and I didn‘t see anything happen.

Second problem, the accuser statement to the sexual assault nurse. 

She talks about one of the names she says of one of the guys.  “Brett was carrying me on one side and Nikki” --  meaning the second stripper—“on the other side.  I kept telling them, No.‘”

So, to the sexual assault nurse she‘s saying the second stripper was literally helping to push me back into the house.  And yet, to the—in her written statement, she‘s claiming, we were trying to hold on to each other as they tried to force me into the bathroom. 

Finally, in the second stripper‘s statement, she says, “... (the accuser) told me we should go back to the house because there was more money to be made,” meaning the second stripper is saying she‘s the one who wanted to go back in. 

So, for them—for “The New York Times” to suggest, yes, there are some inconsistencies here, but the accuser‘s statement became consistent according to the lead investigator, is to basically throw up their arms and say, you know what?  It doesn‘t really matter what the actual participants said.  We‘re going to rely on the summaries from the lead investigator who filed this document much after the fact. 

I think that they did really a horrible job here. 

CARLSON:  So, basically, you have a case in which there is no DNA evidence, no physical—no real physical evidence that I can tell.  Everybody who was on the scene except the accuser has a different version of what she claims happened. 

ABRAMS:  And she has a different version, depending what—at what point you were asking her.  CARLSON:  Right.  Right. 

So, I mean, this case amounts to what exactly?  What is the reason Nifong indicted? 

ABRAMS:  Well, I don‘t know.  I mean, I think—well, I will give him the benefit of the doubt and say that he believed and believes her account.  But that doesn‘t justify him moving forward. 

And with regard to today‘s story, it certainly doesn‘t justify “The New York Times” coming forward and making it sound like it‘s an “on the one hand, on the other hand” news piece when, in my view, this was clearly an editorial on their part.  It is—look, I‘m giving my opinion about this.  You give your opinion about it.  We admit, it‘s our opinion.  This is my analysis of the facts in this case. 

For “The New York Times” to come forward on the front page and claim it‘s just an objective assessment of the 1,850 pages, either they didn‘t read them or they got snookered.

CARLSON:  Right.  Or they don‘t understand what they read. 

ABRAMS:  Well, that‘s possible, as well.  Again, I‘m giving them the benefit of the doubt as well. 

CARLSON:  Yes.  So am I.  Stupidity is actually the nicest explanation at this point. 

ABRAMS:  Yes.

CARLSON:  Now, they raised the question of a man named Gottlieb (ph)...

ABRAMS:  Yes.

CARLSON:  ... who they say provided to Nifong an account of the case that fills in the blanks, essentially.  In those 1,300-odd pages that you‘re referring to that first came to light...

ABRAMS:  Yes.

CARLSON:  ... the defense said, look, there are all these holes in the case.  Then this character Gottlieb (ph) shows up with—I believe he‘s a police investigator...

ABRAMS:  Yes.

CARLSON:  ... with 30 pages of things that he remembered after the fact that fill in the holes. What do you make of that? 

ABRAMS:  Well, he‘s one of the lead investigator.  Even if you take him at face value, that doesn‘t—that doesn‘t deal with the problems that exist with the actual participants‘ statements. 

You can say, well, yes, Gottlieb (ph) says that he interviewed this person and the sexual assault nurse said that there seemed to be trauma, et cetera.  That‘s fine.  And that‘s not irrelevant.  But it ignores the actual statement of the sexual assault nurse, who quoted the accuser talking about what happened to her. 

And that account, in and of itself, is totally inconsistent with the accuser‘s own account that she gave in a written statement later on.  So, whatever Gottlieb (ph) said or didn‘t say, or whether he was doing it to fill in the holes or he was doing it to help make the case here, it almost doesn‘t matter.  But as a journalistic matter, I don‘t understand why they would be relying on that, as opposed to the actual statements from the participants.  CARLSON:  I don‘t understand at all.  But I was...

ABRAMS:  This one gets me, Tucker.  This is one of those days when I‘m sorry I still don‘t have a show. 

(LAUGHTER)

CBS will only spare Mr. Nifong and pronounce the Duke case a reasonable exercise in prosecutorial discretion if the known facts warrant it.

As of now, they don't.

As of September 24, they won't.

And they never will.

The Friends of Duke University website initially helped to explode the hoax that is the Duke case, by providing an open forum.  The first post, an anonymous one (not by me), expressed appreciation for "a place where we can freely express our views on this Duke Lacrosse case": "I am really glad that you set this up. We needed a place where we can freely express our views on this Duke Lacrosse case. I personally feel that the Duke University let these kids down in a major way. They need our support and more importantly they need to know that we trust them and believe they are telling the truth."

By July 28, however, an anonymous poster (not I) chided the FODU website moderator and presciently warned against ossification:

"BTW, the Moderator here is now displaying the classic pattern of internet forum hosts.

"As their site becomes more popular (and time-consuming for them), they become controlling, worried about the site' rep and overtly authoritarian (the CTV posters can tell you that that happened to Coldwater last week, and she is a pro).

"This phenomenon is as predictable as Nifong's next blowdry.

"What was once a free ranging and open exchange, covering every conceivable issue that this horrendous case has raised, will now became a stale but pious recitation of Nifong's sins and enthusiastic cheerleading for defense team.

"(and with that change will go the reason why this site has become a must-read for DAs, ADAs, journalists and C/R/D supporters in the last weeks, wondering where the next front in the battle is occurring)

"Like I said, predictable.

"P.S. For the record, I am not on any 'team'. I see injustice, I comment on it (and act on it)."

The moderator replied with apparent gratitude instead of affronted attitude:

"10:44 poster: Thank you for your concern about the dilemma that moderators of discussion sites, such as ours, face. We appreciate your concern and thank you for warning us that we have reached a critical point in our existence. We will be sure not to repeat some of the common mistakes that have been made elsewhere. Thank you for your input."

BUT, the moderator ALREADY had succumbed to the "enthusiastic cheerleading for defense team" against which he had been wisely warned.

I know, because my "Paging Susan Lucci" article, which was posted on July 23 and quickly listed at FODU then was quickly de-listed.

These days he defends that as the right thing to have done:  " I asked several people to read your Susan Lucci article and provide feedback to me before I removed it from our list of recommended articles. I received the same response from all reviewers. They said the article was insulting to the indicted students and had no business being on our list. As the moderator of this site, I believe I have the duty and the right to decide which articles to put on that list.

BUT, the moderator who genuflected (figuratively speaking) to the anonymous authorities flip flopped like Senator Kerry.  He immediately had accepted the article for posting with great praise: "Excellent article! I will post it on out site right away. Finnerty family will probably appreciate it. Many thanks."

The moderator recently insisted that I was "insulting the indicted kids," and argued that "it is the last thing they need right now and they cannot speak up even if they wanted to because of the gag order".

When I wrote my "Paging Susan Lucci" piece, it was not known publicly (or by me) that the Duke Three (and all other potential witnesses) were subject to the gag order together with lawyers.  The lawyers on the case did not tell THAT to the public, and neither did the press,  The moderator knew, however, and promptly after I confirmed that he was correct, by obtaining a copy of the motion to modify (from him) and the order itself (from another), I publicly disclosed the scope of that outrageous order.

The moderator (and his anonymous "advisers") prefer to describe my "Paging Susan Lucci" article as "insulting the indicted kids," but I did no such thing.  I disputed the "wisdom" of their legal strategy.

Unfortunately, Sergeant Gottlieb is not the only one whose professed recollections are untrue.

Moderator at FODU (August 27): "To Michael Gaynor above: If you read my email again, you will see that I do not say "you have to be in locksteps with the defense attorneys". I say, "stop insulting the indicted kids, it is the last thing they need right now and they cannot speak up even if they wanted to because of the gag order". There is a huge difference between the two. I would appreciate it if you did not put words in my mouth --however advantageous they may be for you, they are not my words."

There IS a huge difference, but the truth is my "locksteps" remark was an apt paraphrase, not a quote, and the moderator's "stop insulting" quotation is the moderator trying to rewrite what he really wrote to me, because he deems that "advantageous."

I have searched his email to me (as he encouraged me to do):

This was his first email to me (July 15):

"Dear Michael Gaynor,

"I am writing to thank you on behalf of all my friends at the "Friends of Duke University" for the terrific job you have been doing in covering the Duke Lacrosse case.

"We are immensely grateful to you. We appreciate your continued support (through your articles) very much. Even before any other news media or journalist had anything positive to write about the falsely accused Duke Lacrosse players (a few exceptions, such as Robert KC Johnson and Stuart Taylor) you were on the right side of this issue and you provided a great deal of comfort and hope to us over the past few months.

"We thank you and hope that you will continue with your wonderful coverage of this case until it reaches a positive conclusion.

"Warm regards,"

It's not in that one.

It's not in any of them.

In addition, now the memory-challenged moderator claims to be selective about listing articles: "Please note that there are many good articles written on this subject every single day. We cannot possibly list all of them—there isn’t enough space. So, I have to be selective. Is something wrong with that?"

Previously he asked me for links to my  articles, wanted to be less selective and MORE comprehensive and was eager to add my  earlier articles that had not been listed (including two written weeks before the earliest listed article): "Mike,

"Thanks. You are very observant. We did not get established until the first week of May. So, our history is not complete. I will gladly add the missing articles to our list. I appreciate your assistance on this a great deal. You have been wonderful. God bless."

Moreover, I did not protest one of my articles NOT being selected; I protested a de-listing of the article which the moderator himself had praised the most highly of all of my articles on which he commented, because what HE called "some real sensitive people on this case" and I call surreptitious censors determined to stay the wrong course and to contain criticism of it. The "insulting the indicted kids" canard is revisionist history.  What the misleading moderator actually emailed me when he finally responded to my request for an explanation was that "A few people wrote in saying the part about Finnerty was insulting to Collin and his family."  No claim that he agreed, no claim that anything disparaged either co-defendant. 

I referred to the downside of the keep-the-sophomores-quiet defense strategy: "Collin Finnerty is innocent of all the crimes of which he was charged in both the District of Columbia and Durham, North Carolina. Of that, I am confident. He's been an exemplary student and athlete. He is now one of America's three most known lacrosse players. (Unfortunately, all of them are known for being charged with vicious crimes instead of spectacular lacrosse play.) At least 6 feet 4 inches tall, more than 200 pounds and to be 20 within a fortnight, he needs a vote of confidence from family and advisers instead of an admonition to choose among 'Yes, Your Honor,' 'No, Your Honor' and 'I don't have anything to say, Your Honor' if he absolutely must speak. He is not mentally or physically challenged, and does not need to be overprotected, no matter how lovingly.

"I think Collin must be of four minds these days: (1) appreciative of all that his family has done for him, (2) appalled over the terrible impact of he having been accused (unjustly) of crimes has had on his family and friends (as well as himself), (3) apprehensive about being framed in the Duke case and (4) eager to address the outrageous allegations against him and assure America that he is innocent, just as teammate David Evans did after he was indicted. Timidity is not a trait commonly associated with star athletes; overprotective is a trait commonly associated with caring parents and controlling lawyers." "Controlling lawyers" want uncritical acceptance that "enthusiastic cheerleading" instead of any criticism.

I noticed the de-listing, inquired and received this explanation:

"Yes, I meant to write to you about that. A few people wrote in saying the part about Finnerty was insulting to Collin and his family. They requested that we take the article off from our list. I am sure when you were writing you had the best interest of the Finnerty family. In my case, I just did not want to offend anyone, so I took it off. Please do not take this the wrong way, emotions are running very high on this case, and we just want to be as sensitive as possible.

"I look forward to your next articles on the case, and I appreciate the continued support you have been providing on this issue. We just have to accommodate some real sensitive people on this case."

The next time I sent the moderator a link to an article of mine, he responded:

"I just got to your message. Thanks for the link. I read it. It is a very good piece. However, given what the Seligmann and Finnerty families are going through right now, we don't want to post items that criticize the tactical decisions made by their attorneys. Also, even if they wanted to, all three of the accused are under a gag order limiting them from speaking out. Their attorneys are currently filing motions to get that gag order removed.  I too look forward to the day when the gag order is removed and the kids come out and speak. But for now we cannot criticize them for not speaking out. I hope you will agree with me on this. The last thing they need is to disobey a judge’s ruling."

That doesn't sound to me like a ringing endorsement of keeping the Duke Three quiet. especially the qualification "for now" in "But for now we cannot criticize them for not speaking out."

I agreed that the Duke Three could not be criticized for respecting the gag order, but believed that did not absolve the attorneys for keeping them quiet (but for the stellar David Evans moment) and thereby suggesting to God know how many that they were not innocent of the criminal charges against them.

 I'm going to call for a change in defense strategy and NOT treat a mistake as "water under the bridge" when "some real sensitive people on this case" (1)adopt a strategy that has postponed the day on which the nightmare that is the Duke case ends and America fully appreciates the real nature of the Duke case (in essence, a phony accusation seized upon by a pathetic prosecutor to avoid defeat in a Democrat primary by indicting and prosecuting  young white men from wealthy families, with the help of the Durham establishment and the acquiescence of the highest North Carolina authorities) and (2) stubbornly stick to that strategy instead of learning from Collin Finnerty's undeserved, but predictable, conviction in an unrelated simple assault case in the District of Columbia."  Senator Carl Schurz (1829-1906) was right when he said, "My country, right or wrong; if right, to be kept right; and if wrong, to be set right."  And he said it boldly, not timidly.

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.