Topic category:  Other/General

Better late than never.

That is, it would have been better if the action by the three Dukies had been commenced when the Duke case was receiving much greater public attention and at least before Election Day 2007 and the Dan Blue report lauding Duke University President Richard H. Brodhead's tenure as President and paving the way for his continuation in a position for which he is utterly unsuited.

Still, better late than never.

It is good news that Bob Ekstrand's lengthy complaint on behalf of three unindicted members of the 2005-2006 Duke University Men's Lacrosse Team is public at last and settling confidentially with Duke, a temptation to which others succumbed, did not happen. Mr. Ekstrand is representing RYAN MCFADYEN, MATTHEW WILSON and BRECK ARCHER, three of the 44 unindicted scholar athletes.

Ryan, Matt and Breck are suing DUKE UNIVERSITY; DUKE UNIVERSITY POLICE DEPARTMENT; AARON GRAVES; ROBERT DEAN; LEILA HUMPHRIES; PHYLLIS COOPER; WILLIAM F. GARBER, II; JAMES SCHWAB; JOSEPH FLEMING; JEFFREY O. BEST; GARY N. SMITH; GREG STOTSENBERG; ROBERT K. STEEL; RICHARD H. BRODHEAD, Ph.D.; PETER LANGE, Ph.D.; TALLMAN TRASK, III, Ph.D.; JOHN BURNESS; LARRY MONETA, Ed.D.; VICTOR J. DZAU, M.D.; ALLISON HALTON; KEMEL DAWKINS; SUZANNE WASIOLEK; STEPHEN BRYAN; MATTHEW DRUMMOND; DUKE UNIVERSITY HEALTH SYSTEMS, INC.; PRIVATE DIAGNOSTIC CLINIC, PLLC; JULIE MANLY, M.D.; THERESA ARICO, R.N.; TARA LEVICY, R.N.; THE CITY OF DURHAM, NORTH CAROLINA; MICHAEL B. NIFONG; PATRICK BAKER; STEVEN CHALMERS; RONALD HODGE; LEE RUSS; STEPHEN MIHAICH; BEVERLY COUNCIL; EDWARD SARVIS; JEFF LAMB; MICHAEL RIPBERGER; LAIRD EVANS; JAMES T. SOUKUP; KAMMIE MICHAEL; DAVID W. ADDISON; MARK D. GOTTLIEB; BENJAMIN W. HIMAN; LINWOOD WILSON; RICHARD D. CLAYTON; DNA SECURITY, INC.; RICHARD CLARK; and BRIAN MEEHAN, Ph.D.

Good for them!

Mr. Ekstrand summarized their case in the complaint this way:

"1. This action arises out of a combination of actors and entities that, from time to time, we refer to herein as the Consortium. The Consortium included a world-renowned University, its faculty, its police department, its medical center, and a SANE nurse; a city, its city manager, its police department, and a rogue officer; a private DNA lab, its lab director, and its owner; and a prosecutor who was disbarred, and subsequently convicted of contempt and incarcerated for certain of his acts in furtherance of the Consortium’s conspiracy.

"2. Plaintiffs’ claims arise out of the Consortium’s conspiracy to railroad 47 Duke University students as either principals or accomplices based upon the transparently false claim of rape, sexual offense, and kidnapping made by a clinically unreliable accuser on March 14, 2006. The conspiracy was facilitated by overt acts and by the refusal to intervene on the part of those in the Consortium who knew of the wrongs conspired to be done to Plaintiffs, had the power and authority to intervene, and refused to do so.

"3. The conspiracy’s vehicle was the false accusation of rape made under circumstances akin to duress, by a woman with a long, troubling psychiatric history. When the duress was removed, Mangum quickly recanted the rape claim. However, in the hands of the Consortium, Mangum’s recanted accusation of rape morphed into a brutal gang rape, the horror of which grew in each retelling. It would never be the same story twice. Her claim was taken virtually from her lips and fashioned into a weapon in the hands of those who would leverage outrage was animated by racial was unleashed at once on 47 of them.

"4. The Consortium’s conspiratorial objectives in the matter of 610 N. Buchanan Blvd. were motivated by a racial animus and also by an animus based upon Plaintiffs’ their perceived status as non-citizens of the state of North Carolina. The defendants retaliated against the team members for having the temerity to reach for the protections of the United States Constitution, the only thing that could keep them safe from wrongful convictions upon false allegations of the most horrific kind and from a rogue prosecutor and a rogue police officer who wanted and needed to prove they were true.

"5. Over the course of the 13 month investigation into Mangum’s false accusations, defendants conspired to achieve the retaliatory purposes of their conspiracy by, among other things, agreeing to conceal the overwhelming evidence of innocence they found or knew to exist very early on; agreeing to fabricate forensic medical evidence, including the falsification of medical records associated with Mangum’s Sexual Assault Examination, agreeing to conceal from Plaintiffs powerful exculpatory DNA evidence to which Plaintiffs were entitled by law before indictments in the matter were handed down; agreeing to fabricate witness testimony from the State’s witnesses, and to harass, intimidate and threaten the witnesses who would prove Mangum’s claims a lie; and by agreeing to make consciously parallel public false statements impeaching the character and credibility of the accused 47 members of the men’s lacrosse team.

"6. All of the foregoing conspiracies depended for their continuation upon an overarching conspiracy between Duke University and its co-defendants to conceal the fact that, at all times relevant to this action, the investigation of Mangum’s claims was the Duke Police Department’s investigation. Mangum alleged she was raped and sexually assaulted at a residence that was within the Duke Police Department’s jurisdiction, and, by statute and agreement, Duke University Police had the primary responsibility to “initiate and conclude” an investigation of Mangum’s allegations.

"7. The fact of Duke Police Department’s jurisdictional obligation to investigate Mangum’s false accusations was kept secret through another overarching conspiracy among all Defendants to publicly and privately conceal it.

"8. So great was the damage done the 47 Duke University students on the men’s lacrosse team that even the unequivocal exoneration after a re-investigation led by two of this State’s most revered respected prosecutors could not repair it. For 13 months, the defendants and others not yet named in this action conspired and colluded to subject plaintiffs and their teammates to public outrage and condemnation before a national and international audience, day after day. Throughout this affair, those who had the power to destroy Ryan, Matt, Breck, and their teammates acted to destroyed them; and Duke University, with the statutory authority and power to intervene to prevent the wrongs being committed upon their own students, refused to intervene.

"9. It was not until North Carolina’s Attorney General’s Office and its special Special Prosecutors, Senior Deputy Attorney General James J. Coman and Special Deputy Attorney General Mary D. Winstead obtained jurisdiction that the truth of what happened at 610 N. Buchanan became the aim of the investigation in this matter.

"10. The word 'innocent' does not trip lightly off the tongue of a prosecutor. Coman and Winstead, with State Bureau of Investigation ('SBI') Agents DeSilva and Tart, sought the truth, found the truth, and insisted upon a declaration of innocence. On April 11, 2007, the North Carolina Attorney General declared Plaintiffs and their teammates innocent. For the tireless work of Special Prosecutors Coman and Winstead, SBI Agents DeSilva and Tart, and the Attorney General’s declaration that Mangum’s allegations were a hoax, Ryan, Matt, and Breck are enormously grateful. This case is not about them, nor is it about the justice system in North Carolina. 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."

A few initial observations:

1. False accuser Crystal Gail Mangum was NOT named as a defendant. Instead, Mr. Ekstrand portrayed Ms. Mangum as a virtually innocent victim of the so-called "Consortium" too. Ms. Mangum's false gang rape claim allegedly was made "under circumstances akin to duress". Ms. Mangum, that opportunistic ex convict who lied and perpetuated the Duke case by refusing to recant, was sympathetically described as "a woman with a long, troubling psychiatric history." But for Ms. Mangum, the Duke case would have never been commenced. If Ms. Mangum had admitted that her gang rape claim was false, the case would have closed. But Ms. Mangum is being treated as a victim.

2. Like Ms. Mangum, the members of the notorious "Group of 88" were not made parties, although some were quoted in the complaint. (At least they were not portrayed as victims like Ms. Mangum.)

3. It is alleged in the complaint that "[f]or 13 months the defendants and others not yet named in this action conspired and colluded to subject plaintiffs and their teammates to public outrage and condemnation before a national and international audience, day after day." The complaint's prayer for relief seeks "to redress the injuries proximately and directly caused by Defendants' conduct...and to prevent the substantial risk of irreparable injury to other Duke University Students resulting from the policies, customs, practices, and supervising misconduct alleged" in the complaint. Unfortunately, the complaint is only on behalf of three members of the team and the damage allegedly done to each of them individual is not particularized.

4. The great conspiracy alleged is easy to allege, but hard, if not impossible, to prove to the full extent alleged. A consortium is "an agreement, combination, or group (as of companies) formed to undertake an enterprise beyond the resources of any one member." Mr. Ekstrand's "Consortium" allegedly "morphed" Ms. Mangum’s recanted accusation of rape into a brutal gang rape and "included a world-renowned University, its faculty, its police department, its medical center, and a SANE nurse; a city, its city manager, its police department, and a rogue officer; a private DNA lab, its lab director, and its owner; and a prosecutor who was disbarred, and subsequently convicted of contempt and incarcerated for certain of his acts in furtherance of the Consortium’s conspiracy." Mr. Ekstrand chose to include Duke defendants, Durham defendants and DNA Security defendants, but his complaint did not allege why each of the Duke, Durham and the DNA Security defendants participated in the alleged conspiracy.

5. The complaint alleged that the plaintiffs had not received a copy of "a report showing the tests conducted with their DNA and the results of those tests," not even from Special Prosecutors Jim Coman and Mary Winstead, who received a final report from DNA Security on or about March 28, 2007. But, unlike the DNA Security Defendants, Mr. Coman and Ms. Winstead were lauded in the complaint instead of classified as conspirators: "So great was the damage done the 47 Duke University students on the men's lacrosse team that even the unequivocal exoneration after a re-investigation led by two of the State's most revered respected prosecutors [Mr. Coman and Ms. Winstead] could not repair it."

But the unctuous praise of the two special prosecutors cannot rewrite history.

Mike McCucker ("Crystal Mess") commenting last January on the report that North Carolina Attorney General Roy Cooper had assigned the Duke case to the Special Prosecutions Section of his office, where two lawyers, Jim Coman and Mary Winstead, would have primary case management authority: "Coman and Winstead. Hoo boy. Cooper's vesting chief prosecutorial authority in these two is potentially a bad thing. A VEH-ry bad thing."

Mr. McCusker referred to the frame in the notorious Gell mirder case and explained (at greater length and in more detail):

"Once the Attorney General's Office was made aware of this frame, and the prosecutorial misconduct of Hoke and Graves, it immediately moved the court to set aside the guilty verdict and free Alan Gell, right?

"Um, no. After a thorough reinvestigation, Jim Coman advised Cooper that the matter should be tried again! Coman tried the case himself. He lost. Joe Cheshire sat first chair for Alan Gell at the re-trial. He was assisted by Jim Cooney, Mary Pollard and Brad Bannon.

"Hoke and Graves were ultimately tried by the Grievance Committee of the State Bar for their egregious prosecutorial misconduct in the failure to timely provide Mr. Gell's original defense counsel with exculpatory Brady material to which they were absolutely entitled -- conduct that directly resulted in Mr. Gell's wrongful conviction and near execution. In my next post I am going to set forth, in its entirety, Mr. Bannon's letter to the the State Bar regarding his observations of that proceeding. It is a must read. Apparently, this 'trial' was nothing but a smoke-filled room, a pig circus, an 'old boy' JOKE.

"Jim Coman testified on behalf of his office mates at the Bar 'trial.' Under oath, he said, in direct contravention of precedent settled since 1972, that his pals weren't obligated to turn over impeachment evidence to the defense...."

As to Ms. Winstead, Mr. McCusker stated: "Mary Winstead, Coman's assistant on the Duke Frame assignment, used to work with Mikey at the Durham County D.A.'s office. In the course of her prosecution of one Timothy Malloy for a 1992 rape, Winstead 'accidentally' voiced over portions of not one, but two casette tapes bearing recordings of telephone answering machine messages crucial to Mr. Malloy's defense, some time in the year and a half between their creation and pre-trial discovery, during which time the tapes were in the exclusive possession of the state. She was removed from the case. Mikey tried it. Without those pesky audio tapes."

Mr. Coman and Ms. Winstead finally acknowledged that the Duke Three were innocent, after months of "re-investigation." That was a smart strategic decision as well as the right thing to do. They would have appeared ridiculous instead of "revered" and "respected" if they had prosecuted the Duke Three.

The case filed by the three Dukies offers an opportunity to discover much more of the truth about the ugliness in Durham in particular and in North Carolina in general as well as at politically correct Duke. The complaint may be over-inclusive as well as under-inclusive, but it offers hope and, hopefully, inspiration to the other unindicted players to sue Duke and Durham.

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.