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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  December 18, 2006
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Topic category:  Other/General

Duke Case: Change of Venue Motion and Another Ground

Why isn't Durham a suitable venue for a trial of Reade Seligmann, Collin Finnerty and David Evans (aka the Duke Three) in the Duke case?

Motion on the pertinent facts: "[T]here exists within [Durham] County among a significant percentage of residents so great a prejudice against the Defendants that they cannot obtain a fair and impartial trial and that a Jury selected from [Durham] County will be unable to deliberate on the evidence presented in the courtroom, free from outside influence."

Motion on the applicable law: "[A] trial in [the Duke case] in [Durham] County will violate the fair and impartial trial guarantee established by G.S. §15A-1 957, will violate the Due Process Clause of the Fifth and Fourteenth Amendments to the U.S. Constitution, will violate the Jury Clause of the Sixth and Fourteenth Amendments to the U.S. Constitution, will violate the Cruel and Unusual Punishment Clause of the Eighth and Fourteenth Amendments to the U.S. Constitution, and will violate the coordinate rights established by the North Carolina Constitution."

Why file a change of venue motion?

The obvious reason is to have the court decide whether a fair trial can be had in Durham.

Another reason would be to put a powerful statement of prosecutorial abuse in the Duke case in the public record and thereby pave the way  in the public mind for a pre-trial motion to dismiss under North Carolina General Statutes 15A-954(a)(4) [perhaps as uncommon as a change of venue from Durham County].

North Carolina General Statutes 15A-954(a)(4) mandates that, on motion, the court "must dismiss the charges stated in a criminal pleading if it determines that...[t]he defendant's constitutional rights have been flagrantly violated and there is such irreparable prejudice to the defendant's preparation of his case that there is no remedy but to dismiss the prosecution," and North Carolina General Statutes 15A-954(c) permits such a motion "at any time."

The Duke Three's constitutional rights to due process and equal protection have been violated flagrantly, not accidentally, by Durham County, North Carolina District Attorney Michael B. Nifong himself.

The 2005-2006 Duke University Men's Lacrosse Team's off-campus party on March 13-14 involved poor judgment, not major felonies.

The prosecution of the Duke Three is the real Duke case scandal.

The convenient Motion summary is compelling.  It demands reading, not rewriting:

"The cases before this Court [the three cases collectively referred to as the Duke case] are the most heavily publicized cases in the history of North Carolina. Literally hundreds of thousands of news accounts have been published about these cases, news reports that have been local, national, and even international. Consequently, it is unlikely that there is a single jurisdiction in this State into which this publicity has not spread.

"The Defendants do not seek to change venue in these cases merely because there has been publicity, nor do they seek trial in a location in which no publicity has occurred. Rather, what the Defendants seek, and what they are entitled to under the Constitution, is a trial in a community which has not been polarized by pretrial publicity or torn apart by the circumstances of these cases. Regrettably, Durham is not that community.

"In Durham, largely as a response to an unprecedented series of public statements by the District Attorney and Durham Police Department, there have been street demonstrations and vigils, the only daily newspaper of significant circulation has published more than 295 articles and 20 unsigned editorials concerning these cases, the African-American community has marched for the accuser and demanded “justice” for her, and the largest employer in the County - - Duke University - - has through at least 88 of its faculty members denounced the Defendants.

"Simply put, the extensive and prejudicial pretrial statements by representatives of the State has served to create a mix of racial, class, gender and institutional conflict that has torn Durham apart. It has left in its wake a community that is highly polarized; one in which a large majority of residents has already formed opinions about the guilt or innocence of the Defendants.

"The Defendants are not entitled to a Jury that will acquit them, nor is the State entitled to a Jury that will convict. The Defendants are entitled to a Jury whose members have not formed preconceived opinions about these cases. They are further entitled to a jury that can deliberate in a community in which significant outside forces will not have an impact on the its deliberations or its verdict. In short, the Defendants are entitled not only to an impartial jury, but also to a process in which that Jury may deliberate freely without undue pressure from outside influences. That Jury, and that process, no longer exists in this County."

Cleverly, the defense prefaced the change of venue motion with this succession of highly inflammatory and prejudicial public statements, including several from Mr. Nifong:

“Durham DA: ‘SOME TYPE OF SEXUAL ASSAULT DID IN FACT TAKE PLACE’”- Headline on WRALTV March 29, 2006.

“The contempt that was shown for the victim, based on her race was totally abhorrent,’ Nifong said. .. ‘My guess is that some of this stonewall of silence hat we have seen may tend to crumble once charges start to come out.” District Attorney quoted on ABCTV11 on March 27, 2006.

 “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?' District Attorney on March 28, 2006 quoted in the News & Observer on April 10, 2006.

“The circumstances of the rape indicated a deep racial motivation for some of the things that were done,’ Nifong said. ‘It makes a crime that is, by nature, one of the most offensive and invasive even more so.” District Attorney quoted on WRALTV on March 29, 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.'” District Attorney quoted on WRALTV on April 12, 2006.

“[The Defendants should be prosecuted] whether it happened or not. It would be justice for things that happened in the past. “- Chan Hall, Chairman of Legislative Affairs Committee, Student Government at NCCU quoted in Newsweek May 1, 2006.

“The players maintained an aura of sweet innocence with [the] reporter. Most of Durham knew the lacrosse players were no choirboys, as ‘60 Minutes’ tried to portray them.... Roberts [the second dancerJ was separated from the accuser for at least two periods of five to 10 minutes. We still haven’t heard why an assault couldn’t have occurred during those gaps.... Does Durham really want a prosecutor who won’t stand up for an alleged victim, even if she ranks near the bottom of society?” Editorial in Herald-Sup October 17, 2006.

“Hopefully justice is blind when it is time to carry out the proper punishment for what has been committed, and perhaps what has not been committed.” Pastor John Bennett quoted in the Herald-Sun October 16, 2006.

“If you got money, you can basically buy your way out of anything. Are you going to stand for [the accuserJ or are you going to stand with the people who have money?” Eugene Gordon quoted in News & Observer October 25, 2006.

“Chartette Jenkins, 54, isn’t surprised at the poll results. She thinks the lacrosse situation tapped into some people’s long-held resentments toward Duke. ‘Rich kids are always buying their way out,’ said Jenkins, who is black, ‘Residents are saying, 'You’re not going to buy yourself out of it this time.'' News & Observer October 25, 2006.

“[T]hey [the District Attorney’s election opponents] have endeavored to make this election something it is not: a referendum on a single case that [they) view as a threat to their sense of entitlement and that they do not trust a jury of Durham citizens to decide.” Email from District Attorney to “Friends, Supporters, and Volunteers” November 5, 2006.

“This goes to show that justice can’t be bought by a bunch of rich white boys from New York,’ said Harris Johnson, a former state Democratic party official and Durham resident for 56 years. ‘Duke has a habit of sweeping things under the carpet. I guess this goes to show that no matter how much money you have, Durham is owned by its citizens.” Commenting on the District Attorney Election Results in The Chronicle November 8, 2006.

“Furthermore, with an upcoming trial that is sure to draw major media attention, it would be better for the pIavers to have an opportunity to prove their innocence at trial.” Editorial, Herald-Sun November 8, 2006 (emphasis supplied).

Suffice it to say that the facts set forth in the 30-page Motion cry out for a change of venue in the event of trial under the law set forth in the Motion.

Those who think that Durham has a right to try the Duke Three should read it.

The applicable law on a change of venue motion:

"65.      The constitutional guarantee of a fair trial, one in which a case is decided on its facts and not on community opinion, is not a new or recent development. One hundred years ago, Justice Oliver Wendell Holmes wrote that:

The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.

Patterson v. Colorado, 205 U.S. 454, 462 (1907). For more than half a century, it has been the law that no person can be punished for a crime without 'a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power.' Chambers v. Florida, 309 U.S. 227, 236-37 (1940). Forty-five years ago, in setting aside a conviction based upon the failure to change venue, the Court wrote:

'With his life at stake, It is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion.' Irvin v. Dowd, 366 U.S. 717, 728 (1961).

"66.      The leading case on the interplay of due process and the fair trial guarantee with prejudicial publicity and preformed community opinion remains Sheppard v. Maxwell, 384 U.S. 333 (1966). In overturning the conviction of the Defendant, the Court wrote:

Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. . . . But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abides, or transfer it to another county not so permeated with publicity.

384 U.S. at 362-363. Sheppard’s formulation that due process requires an impartial jury 'free from outside influences,' and that a Defendant must simply show a 'reasonable likelihood' that a fair trial cannot be had without the necessity for particularized prejudice, was explicitly adopted in State v. Jarrett. 309 N.C. 239, 254-55 (1983).

"67.      In Sheppard, the Defendant was convicted of murdering his wife amidst 'massive, pervasive and prejudicial publicity,' which included a coroner’s inquest attended by the media, sensational headlines and articles documenting inadmissible evidence, and statements by agents of the prosecution detailing their opinions about the evidence and the strength of the case. 384 U.S. at 335, 338-42.

"68.      Since Sheppard, the courts have developed a number of criteria to measure those instances in which the right to a fair trial has been jeopardized. These include:

1.        Did the publicity in question accurately report only the typical public information about the factual allegations of the charges, see State v.  Jerrett, 309 NC. at 251; State v. Gallagher, 313 N.C. 132, 137 (1985), or did the publicity 'contain matters which could not have been admitted into evidence,' State v. Abbott, 320 N.C. 475, 480 (1987), or which were 'inaccurate or untrue.' State v. Scarborough, 92 N.C. App. 422, 424 (1988) rev’d on other grounds 324 N.C. 542 (1989).

2.        Did the publicity focus on the defendant as opposed to the     circumstances of the crime, see United States v. Maldonado-Rivera, 922 F.2d 934, 967 (2d Cir. 1990).

3.        Was the publicity generated by agents of the State, see United States v. Bakker, 925 F.2d 728, 733 (4th Cir. 19911 ('In deciding whether to presume prejudice based on pre-trial publicity, a court can consider the source of that publicity'); Maldonado-Rivera, 922 F.2d at 967.

4.         Was the publicity 'inflammatory,' see State v. Hunt. 323 N.C. 407, 415 (1988), vacated on other grounds, 494 U.S. 1022 (1990) reinstated and remanded, 330 N.C. 501 (1992).

Applying the applicable law to the facts:

"69.      These criteria are amply met in this case. The publicity surrounding this case, and particularly the extensive reporting, opinions and editorials published by the Herald-Sun often focused on the Defendants, rather than the circumstances of the crime. The reporting contained matters that were not true, published the personal opinions of the District Attorney as to whether a rape had occurred -- a matter that will be hotly contested at trial -- and repeatedly referred to the Defendants as 'privileged' and 'white' while emphasizing that the accuser was African-American and 'less well off.' The publicity in the Herald-Sun has also repeatedly raised the question of whether the Defendants’ attorneys are 'well-paid' and 'expensive' and has repeated time and again claims that the Lacrosse team was 'out of control' and engaged in reckless behavior. The response of the community in general, and the African-American community in particular, demonstrates the inflammatory nature of this publicity, and the damage that it has caused in this community. Finally, while the State wilt argue that much of the publicity has been generated recently by the Defendants, the simple fact remains that had the District Attorney and the Durham Police Department not become involved in a media 'feeding frenzy' about this case before the investigation was complete, there would have been no protests in the streets nor inflammatory media - -both were first set and then stoked by the more than 70 interviews given by the State in this case.

"70.      Under circumstances that pale in comparison to the inflammatory publicity in Durham County in this case, courts in this State have not hesitated to order venue changed. Thus, in State v. Jerrett, the Court reversed the trial court’s refusal to change venue. There the Defendant presented 8 newspaper accounts and evidence of radio broadcasts -- articles and broadcasts that were 'factual, informative, and non-inflammatory in nature.' 309 N.C. at 251. Nonetheless, because the Defendant also presented evidence that was 'clearly sufficient to show that there was considerable discussion of this case throughout Allegheny County' and that every witness who testified 'indicated that they believed it would be extremely difficult, if not impossible, to select a jury comprised of individuals who had not heard about the case,' the Court ruled as a matter of law that venue should have been changed. Similarly, in United States v. Abbott Laboratories, 505 F.2d 565, 569 (4th1 Cir. 1974), the Fourth Circuit found that statements by the Government linking a misbranding of drugs to up to 50 deaths was so inflammatory and had received such widespread publicity that a change in venue was appropriate as a matter of law (reversing trial court’s decision to dismiss indictment as a consequence of prejudicial and inflammatory pretrial publicity).

"71.      Finally, the fact that some members of the community may have not yet formed a firm opinion about the outcome of the case does not erase the significance of the fact that a majority have, and that voir dire is a particularly ineffective way to uncover which prospective jurors may in fact be unbiased. Precisely this point was made in United States v. Tokars, 839 F. Supp. 1578 (N.D. Ga. 1993). In that murder case, a public opinion survey revealed that 69% of the respondents had 'heard or read "a great deal" regarding the death of [the victim]; 17.1% have heard "a fair amount."' The survey further found that nearly two-thirds of the respondents had formed an opinion about guilt. 839 F. Supp. at 1583. Despite the fact that 'the Northern District of Georgia contains Atlanta, Georgia -- a very large, metropolitan, populous city' and that the survey indicated that 'sufficient unbiased jurors exist in the North District of Georgia from which to select a jury panel,' venue was nonetheless changed: 'Where the negative publicity has been so intense. . . the difficult task would be ascertaining which prospective jurors are in fact unbiased.' 839 F. Supp. at 1584.

"72.      However, the most significant factor in this case concerns the trial -- and particularly the deliberations of the Jury -- itself. As a consequence of the inflammatory publicity in this case, significant segments of this community have taken clear and entrenched positions about the guilt or innocence of the Defendants. Any Jury that could be seated from this community will be subjected to enormous and conflicting pressures from this community. These pressures will necessarily invade and infect the deliberations in this case, whether it be as a consequence of the media or community opinion and discussion. Indeed, given the street demonstrations that have already taken place in this community over this case, there is a very real prospect of a Jury deliberating in an atmosphere of demonstration, protest and unrest. It is axiomatic that in order to have a constitutionally fair trial, a Jury must be permitted to deliberate in an atmosphere that is free from outside influence and pressure. Sheppard v. Maxwell, 384 U.S. 333, 362 (1966) ('Due process requires that the accused receive a trial by an impartial jury free from outside influences.').

"73.      No other community within the area has experienced street protests about this case, a stream of prejudicial and inflammatory statements by faculty members of the largest employer in the County, a parade of editorials from the only newspaper of general circulation based in the County supporting the prosecution and attacking the Defendants, or had significant segments of its population openly and uncritically embrace the accuser’s version of events. Moving this case to another community will remove each of these outside influences from any role in the deliberations of the Jury. Trial in another county, by residents of another county, would also eliminate any potential influence on -- or even action against -- jurors returning to their community and explaining their verdict." 

In addition, there is another basis to change venue: Durham County itself has a special interest in conviction, due to Mr. Nifong's misconduct as lead investigator as well as prosecutor

As Professor John F. Banzhaf III, Professor of Public Interest Law at George Washington University Law School, and successful orchestrator of legal actions against several major governmental figures, including former Vice President Spiro T. Agnew, noted in an email to me, the Duke case could create a major civil liability not only for Mr. Nifong, but also for Durham County.

Professor Banzhaf:

"As the rape case against three Duke lacrosse players continues to unravel, and instances of apparent prosecutorial misconduct multiply, it appears increasingly likely that the accused students will be able to recover civil damages against the county and perhaps also the district attorney....

"Although prosecutors generally enjoy absolute immunity from civil liability for violating the constitutional rights of defendants, there are instances -- and this may well be one of them -- where that immunity doesn't apply,"..... Moreover, Durham County, NC, does not have absolute immunity, and so the county could be held liable for millions of dollars in civil damages even if District Attorney Michael Nifong is protected from law suits....

"Generally, district attorneys -- acting within their narrow role as prosecutors -- have absolute immunity, and cannot be sued even if they violate a defendant's constitutional rights intentionally, in bad faith, and with malice. This means that, even if it can be proven that Nifong engaged in gross prosecutorial misconduct in prosecuting the students while knowing they were innocent, and doing so wrongfully and only for political purposes, he might not be held civilly liable."

"On the other hand, the U.S. Supreme Court has carved out an exception when a prosecutor is acting not as an advocate performing functions intimately connected with the judicial phase of the criminal proceeding, but rather as an investigator or administrator. In such cases he enjoys only qualified immunity, and can be held liable if his misconduct violated clearly established legal standards of which a reasonable prosecutor would have known.

"Under this so-called functional approach, actions taken before probable cause is established make the prosecutor an 'investigator,' entitled only to qualified immunity. After probable cause is established, a prosecutor may be acting as either an 'investigator' or an 'advocate,' depending on the function being performed, and thus the function being performed determines whether or not absolute immunity applies.

"For example, since only qualified immunity applies to functions such as providing legal advice to the police and cooperating in police investigative work, prosecutors who conspire with police to fabricate evidence during the preliminary investigation, or made false statements of fact in an affidavit supporting an application for an arrest warrant, may enjoy only qualified immunity. It would also appear that granting numerous interviews with the media is outside the protected role of an advocate, especially if the information goes far beyond what is stated in court documents, and includes even name calling.

"Even if Nifong is found to be shielded from civil liability by absolutely immunity, such immunity does not apply to the county which he represents, so Durham County, NC, could wind up being civilly liable even in Nifong escapes liability. Considering the emotional suffering -- not to mention the legal and other out-of-pocket expenses -- this criminal proceeding has subjected the defendants to, a jury could award a very significant verdict to compensate them....

"Congressman Walter Jones has called for a federal investigation to determine if Nifong's actions constituted prosecutorial misconduct and denied the students their civil rights. In his letter to the Department of Justice, he spell out allegations which could make Nifong personally liable:

'First, Mr. Nifong directed the Durham Police Department to knowingly violate suspect identification procedures for police personnel in North Carolina,' Jones continued. 'These procedures require that during any suspect identification process, a suspect’s photo must be shown with those of non-suspects. Mr. Nifong not only directed that this not be done, he also directed the police to tell the accuser that she would only view photos of Duke lacrosse athletes who were at the party. By doing so, Mr. Nifong ensured that the accuser could not make a mistake no matter who she identified because she would inevitably identify Duke athletes.' Since these actions all occurred during the initial investigatory phase, Nifong cannot claim absolute immunity...."

May Judge Osmond Smith do Durham County the favor of mitigating the damages by dismissing the Duke case as soon as possible!

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.


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