When it comes to poisoning the Durham County, North Carolina jury pool, District Attorney Michael B. Nifong knows what to do and he does not want anyone trying to undo his work after he is through.
When it comes to poisoning the Durham County, North Carolina jury pool, District Attorney Michael B. Nifong knows what to do and he does not want anyone trying to undo his work after he is through. (The man is an artist and artists can be very touchy about anyone criticizing their work, much less examining it too closely or trying to sanitize it.)
The defense in the Duke case is checking the attitudes of potential jurors. This is a GOOD thing, especially given all that Mr. Nifong did to poison the jury pool against the whole 2006 Duke Men's Lacrosse Team when he was simultaneously serving as prosecutor and running in the Democrat primary to keep his job. last spring,
Mrs. Nifong (Cy Gurney) was called as part of the survey. THAT was asking for trouble.
Now Mr. Nifong is asking Judge Osmond Smith (the third judge to handle the Duke case and the one who put an end to televising court proceedings in the case) to make the defense cease and desist from surveying.
This is a big test for Judge Smith. Maybe he is just allergic to television cameras. Maybe he thinks that the constitutional rights of the Duke Three are restrictable in Durham.
On July 17, 2006, Judge Smith's immediate predecessor on the case, Judge Kenneth Titus, purported on his own initiative but surely to Mr. Nifong's delight, stopped members of the 2006 Duke Men's Lacrosse Team, even including the defendants, and any other potential witnesses from communicating with the media about the Duke case without risk of being held in contempt of court or even disqualified as a witness.
That outrageous order was constitutionally overbroad, but the defense did not cry out immediately and instead quietly moved to modify four day later. (Their motion to modify still seems to be in the court's "later" pile.) Media representatives should have actually read the order, but defense lawyer Joseph Cheshire said it was NOT a gag order and they did not check for themselves.
There IS a great need for the defense to survey potential jurors, as the defense team knows very well (and explains very well).
Set forth below is the "Background Facts" portion of the motion by the Duke Three's attorneys for modification of the gag order. It nicely puts the gag order in context and describes some of Mr. Nifong's "tactics."
"This case arose after the accuser alleged, in the early morning hours of March 14, 2006, that she was physically and sexually assaulted earlier that night inside the residential home at 610 North Buchanan Boulevard in Durham, North Carolina, by members of the Duke University Men's Lacrosse Team. As noted in the Defendant's previous discovery-related filings, that allegation was not immediately made to the woman she left the residence with or to the three law enforcement officers she initially encountered that night, when she refused to leave the other woman's passenger seat at a nearby grocery store. The allegation was only made after two of those officers transported the accuser to a facility where she was going to be involuntarily committed. When the accuser made that initial allegation, she was transported to Duke Hospital's Emergency Room.
"Within days, this case became the subject of published reports in local newspapers and television stations. Public interest continued to grow when, on March 23, 2006, the 46 white members of the lacrosse team were ordered to submit to non-testimonial identification procedures for the purpose of gathering evidence for DNA testing and photo lineup procedures. Public interest began to peak when, within days of those procedures, Durham County District Attorney Michael Nifong began a series of public comments about the case in some 50 to 70 interviews, with print and television media, both local and national.
"A very limited review of Mr. Nifong's public comments about this case in March and April reflects that Mr. Nifong made the following comments to the public:
'The district attorney's office said team members deny the accusations, but admit there was underage drinking at the party. Otherwise, they are not cooperating with authorities. Nifong, who said Monday that he himself will prosecute the case, said authorities may apply for more search warrants in the case and that more charges for aiding and abetting may be possible against partygoers. "There's a good chance, if someone had spoken up and said, 'You can't do this,' it might not have happened," said Nifong.' WRAL, March 27, 2006.
'"The information that I have does lead me to conclude that a rape did occur," Nifong said. "I'm making a statement to the Durham community and, as a citizen of Durham, I am making a statement for the Durham community. This is not the kind of activity we condone, and it must be dealt with quickly and harshly."' NBC17, March 27, 2006.
'"This is not a case of people drinking and it getting out of hand from that. This is something much, much beyond that."' NBC 17, March 27, 2006.
'"My guess is that some of this stonewall of silence [from the lacrosse players] that we have seen may tend to crumble once charges start to come out."' WTJD, ABC11, March 27, 2006.
'This is the type of case that because of the — on top of the rape, which is already an abhorrent crime enough, you have the additional racial animus and hostility that just seems totally out of place for this community in this day and age. And I felt that this was a case that we needed to make a statement, as a community, that we would not tolerate this kind of behavior here in Durham. And I felt that the best way to make that statement was to take this case myself.' MSNBC, Rita Cosby Live & Direct, March 28, 2006.
'Meanwhile, Nifong said charges are possible against those who were at the party but did nothing to stop a rape. "We're talking about a situation where had somebody spoken up and said, 'Wait a minute, we can't do this,' this incident might not have taken place," Nifong said. Nifong said he plans to prosecute the case himself to send a message to the community that authorities are taking the offense seriously.' AP, March 28, 2006.
'"The thing that most of us found so abhorrent, and the reason I decided to take ft over myself, was the combination gang-like rape activity accompanied by the racial slurs and general racial hostility," Mr. Nifong said Tuesday in a telephone interview. "There are three people who went into the bathroom with the young lady, and whether the other people there knew what was going on at the time, they do now and have not come forward. I'm disappointed that no one has been enough of a man to come forward. And if they would have spoken up at the time, this may never have happened."' New York Times, March 28, 2006.
'"I am convinced there was a rape, yes, sir. ... There is evidence of trauma in the victim's vaginal area that was noted when she was examined by a nurse at the hospital. And her general demeanor was suggestive of the fact that she had been through a traumatic situation....Well, I don't want to go into a lot of the details of the evidence right now, but obviously, the story that these people were hired to dance and were asked to leave is the alternate story."' Abrams Report, MSNBC, March 29, 2006.
'"My reading of the report of the emergency room nurse would indicate that some type of sexual assault did in fact take place," Nifong said." WRAL, March 29, 2006.
'"The circumstances of the rape indicated a deep racial motivation for some of the things that were done," District Attorney Mike Nifong said. "It makes a crime that is by its nature one of the most offensive and invasive even more so."' NBC 17, March 29, 2006.
'There's no doubt in my mind that she was raped and assaulted at this location.' FoxNews, The O'Reilly Factor, March 29, 2006.
'"The victim was examined at Duke University Medical Center by a nurse who was specially trained in sexual assault cases," Nifong said. "And the investigation at that time was certainly consistent with a sexual assault having taken place, as was the victim's demeanor at the time of the examination."... ... "The lacrosse team, clearly, has not been fully cooperative" in the investigation, Nifong confirmed to Syler. ... "The racial slurs involved are relevant to show the mindset...involved in this particular attack," Nifong told Syler. "And, obviously, it made what is already an extremely reprehensible act even more reprehensible."' The Early Show, CBS, March 30, 2006.
'"There's been a feeling in the past that Duke students are treated differently by the court system," Durham County District Attorney Mike Nifong says. "There was a feeling that Duke students' daddies could buy them expensive lawyers and that they knew the right people. It's discouraging when people feel that way, and we try not to make that the case."' USA Today, March 30, 2006.
'Durham District Attorney Mike Nifong said Wednesday that even if DNA results, which are expected as early as next week, do not match team members, no one is necessarily exonerated. The attackers could have used condoms or might not have been team members, Nifong said. "How does DNA exonerate you? It's either a match or there's not a match," Nifong said. "...If the only thing that we ever have in this case is DNA, then we wouldn't have a case."' Raleigh News & Obsetver, March 30, 2006.
'"There are certainly people who've told me that the timing of this could not be better for the election," Nifong said. "I had nothing to do with the timing of this case. I had nothing to do with anything about this other than the fact that what happened here was one of the worst things that's happened since I have become district attorney."' WRAL, March 31, 2006.
'"If it's not the way it's been reported, then why are they so unwilling to tell us what, in their words, did take place that night?" Nifong told [ESPN's George] Smith on Thursday. "And one would wonder why one needs an attorney if one was not charged and had not done anything wrong."' ESPN.com, March 31, 2006.
'Durham District Attorney Mike Nifong has said that anyone who does have information and does not cooperate with investigators could face charges for aiding and abetting.' WRAL, April 1, 2006.
'Nifong, asked a week ago about news coverage of the case, said, "Having said something other than 'no comment' in the first place, it's kind of like going into Iraq. It's not a question of if you're right to go in there. It's a question of is it right to leave things a mess at this point in time?"' Raleigh News & Observer, April 8, 2006.
'[Nifong] implied that members of the lacrosse team were engaging in a conspiracy of silence. "I would like to think that somebody [not involved in the attack] has the human decency to call up and say, 'What am I doing covering up for a bunch of hooligans?' he said. Nifong expressed confidence that the DNA would be important to filling charges. "By next week, we'll know precisely who was involved," he said, shortly after the samples were taken. "I'm trying to be as honest and as straightforward as I can without jeopardizing the case, without being unfair to any person."' Raleigh News & Observer, April 10, 2006.
'Asked whether the DNA tests hurt his case, Nifong said that cases are often won on eyewitness and victim testimony. "The absence of DNA doesn't prove anything," Nifong said.' Raleigh News & Observer, April 10, 2006.
'"I would not be surprised if condoms were used," Nifong said in an interview last month. "Probably an exotic dancer would not be your first choice for unprotected sex."' Charlotte Observer, April 11, 2006.
'"The reason that I took this case is because this case says something about Durham that I'm not going to let be said," said Nifong. "I'm not going to allow Durham's view in the minds of the world to be a bunch of lacrosse players at Duke raping a black girl from Durham."' WRAL, April 13, 2006.
'When asked about the alleged Victim's evident intoxication the night of the party, District Attorney Mike Nifong told Newsweek several weeks ago that her impaired state was not necessarily voluntary. Refusing to speak about the evidence in this case specifically, Nifong, in retrospect, now appears to have been offering a clue: "What does it mean that she was intoxicated?" said Nifong. "Just as an example — speaking hypothetically — if I had a witness who saw her right before this and she was not intoxicated, and then I had a witness who said that she was given a drink at the party and after taking a few sips of that drink acted in a particular way, that could be evidence of something other than intoxication, or at least other than voluntary intoxication," Nifong told Newsweek. "There are many explanations for someone appearing to be intoxicated," he said. Asked if he had any evidence suggesting this scenario took place the night of the alleged rape, Nifong responded, "I don't have any evidence that I want to talk to you about right now." Still speaking hypothetically, he went on to say that, depending on the circumstances, an alleged victim's intoxication might make her a more credible witness.' Newsweek Magazine, April 18, 2006.
"Read and viewed together, Mr. Nifong's dozens of media interviews in March and April set a clear narrative of this case that was embraced by most if not all of the media covering the case, as well as the public it served, and that narrative was this: a racially-motivated gang rape occurred at 610 N. Buchanan Boulevard on the night of March 13; the alleged victim was the subject of involuntary intoxication caused by her alleged assailants; her medical examination at Duke Hospital later that night established clear proof of a sexual and physical assault; the lacrosse team members did not cooperate in the investigation and created a 'stonewall of silence'; lacrosse players other than the alleged assailants could be charged as aiders and abettors; lacrosse players who had not come forward to confirm to authorities that a physical and sexual assault occurred had done something criminally wrong; and Mr. Nifong personally assumed the prosecution of the case, because it was one of the worst things that had happened in Durham since he had become District Attorney, because he wanted to send the message that Duke students' daddies would not be able to hire 'expensive lawyers' and use 'the right people' to make the case go away, and because he was personally committed to seeing that Durham would not be seen in the 'minds of the world' as a place where 'a bunch of lacrosse players at Duke' would get away with 'raping a black girl from Durham.'
"While Mr. Nifong significantly curtailed his media appearances after May 2, 2006, he sent an e-mail on June 13, 2006, to a reporter for Newsweek magazine, which he later attached to a press release he issued on June 19, 2006. In that e-mail, he wrote that all of his public comments had been 'essentially restricted' to (a) his belief that the accuser had been sexually assaulted at 610 N. Buchanan, and (b) his hope that one or more persons who were present but not involved with the assault would cooperate with the investigation. He then made a temporal distinction not recognized by the North Carolina Rules of Professional Conduct about public comments made by a prosecutor and lawyer involved in a criminal case before a person is formally charged in that case versus after a person is formally charged. Among critical comments about the media, Mr. Nifong continued to reiterate his initial beliefs, stated in March and April, and said that 'none of the evidence' he had 'seen from any source' had 'changed the opinion [he] expressed initially.' He went on to imply that defense attorneys were misleading the public by 'creat[ing] reasonable doubt' and accused them of 'spinning this case in such a way that things do not look good for the prosecution.' His e-mail concluded with a reiteration of his belief that ethical rules governing prosecutor and lawyer speech only apply after a formal charge is filed In a criminal case, and stating that the lesson he had learned 'from all of this' is that he would 'probably be best served in the future by avoiding speaking to the press at all.'
"That said, Mr. Nifong did speak to the press, with all of the authority and goodwill and trust given to him by the people of Durham County — if not the world — as the County's chief executive law enforcement officer. And, in 2006, his words, stated in that capacity, remain alive every day in newspapers, television, and on the internet. Mr. Nifong's initial and extensive public comments made during his March and April media campaign, which he stood by in his press released of June 19, 2006, are archived on dozens if not hundreds of Internet websites and have often been repeated, in hundreds if not thousands of stories written or broadcast in newspapers, on television, and on the Internet. In short, Mr. Nifong's narrative has thrived.
"And because the narrative is wrong, undersigned counsel are not only permitted, but ethically obligated, to defend Dave Evans, Collin Finnerty, and Reade Seligmann against it. Moreover, under the First Amendment to the United States Constitution, their teammates on the 2006 Duke University Men's Lacrosse team have a right to respond freely to that government criticism."
The day after Durham County Commissioner Lewis Cheek said he would not campaign against him or even accept the office if elected, Mr. Nifong held a press conference and conceded that some criticism of the way he's handled the so-called Duke rape case is justified.
Mr. Nifong: "My handling of the media coverage of this case has occasioned substantial criticism, some of which is undoubtedly justified. I both underestimated the level of media attention this case would draw and misjudged the effect that my words would have."
The defense is entitled to investigate the effect of your words, Mr. Nifong.
Calling Mr. Nifong's wife was NOT brilliant defense strategy, however.
Mr. Nifong filed a motion on September 20 reporting that his wife got a call around 8 p.m. on September 11 from a research company in New York; was asked to participate in a survey; wrote down all of the questions from the caller when she realized it related to the Duke lacrosse rape case; stayed on the line for about an hour; and was not told who hired the company for which the callers was working to conduct the survey.
Mr. Nifong's wife claims that the caller "was more interested in telling a story" and the caller's questions "were tailored to a specific point of view."
Is anyone shocked? Is telling a story on the telephone a crime in Durham? Is having a specific point of view?
Sample questions: "Do you think the lineup was improper?" and "If the victim did not have any DNA evidence of the players, do you think a rape occurred?"
[Note: The "right" answers are yes and no, in that order. "I don't know" is okay for a potential juror.]
The defense reportedly said that (1) it told Mr. Nifong about the survey in August; (2) it is entitled to survey; and (3) 300 people chosen randomly were to be surveyed.
Mr. Nifong waiting to object until after his wife was called suggests that again he's motivated by angry instead of functioning as a fair and objective "minister of justice.".
Mr. Nifong's public comments threatened the right of the Duke Three to a fair trial. Prime example: his assurance that there was a rape.
I am hardly an apologist for the defense attorneys, but if the money is available for such a survey (and it is), I'd be criticizing them for NOT conducting the survey. So I applaud them for doing so, and telling Mr. Nifong (but not for failing to check whether Mr. Nifong's wife and sister had been randomly selected).
If possible, Mr. Nifong's wife probably traced the call.
Mr. Nifong himself investigates at least some who email him.
Example: "Bill," a retired police officer living in New Jersey and familiar with North Carolina, who emailed Mr. Nifong as follows:
Date: Mon, 18 Sep 2006 16:56:59 EDT
Subject: What are you doing?
What kind of sloppy investigation are you running on the Duke rape case. I
heard you in court saying there was no information from the clinic that the
rape victim was brought to. Now one of the employees states that she took
notes. What kind of scam are you running in Durham. I'll vote ABN-VC, we
only need to live with you for 50 more days
Mr. Nifong replied: "Gee, Bill. Does this mean you are moving down here from NJ just to vote against me? I am flattered. Bad news, though. You'll be stuck with me at least until the end of December."
Are the people of Durham County pleased that their district attorney is tracking down out-of-state emailers or do they have a better use for his time and the County's assets?
The voters and the court should put an end to the Duke rape case.
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.