The defense has filed a powerful motion on the change-of-venue issue, laying out in chilling detail the poisoning of the jury pool in Durham. “There exists,” the motion states, “within this 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 this County will be unable to deliberate on the evidence presented in the courtroom, free from outside influence.”
If this case doesn’t demand a change of venue, then the protection might as well be abandoned entirely. As the motion explains, under the Constitution, the defendants are entitled to “a trial in a community which has not been polarized by pretrial publicity or torn apart by the circumstances of these cases,” and copious evidence exists that Durham is not such a community.
What caused this extraordinary polarization? The motion cites four primary suspects.
1.) Mike Nifong’s statements during his pre-primary publicity barrage demonstrate why the State Bar created Rule 3.8(f), which
A good summary of these procedurally improper statements can be found on Liestoppers’ board. A particularly effective defense paragraph on this point:
The District Attorney made multiple comments on the evidence, first indicating that DNA would plainly identify the perpetrators, then arguing that DNA evidence meant nothing in exonerating those under suspicion. He speculated that condoms were use when the medical records - - which he claimed to have been consistent with rape - - clearly revealed that no condoms were used and that at least one, and likely more, of the assailants ejaculated. He contended that the accuser broke her fingernails when scratching one of the attackers and then asserted that the attackers were wearing long sleeves or jackets, despite photographic evidence showing the opposite.
Nifong’s statements, the motion notes, appeared to be “designed to create substantial prejudice in the community against the Defendants and, indeed, to inflame members of this community.”
2.) Community polarization makes a trial in Durham inherently unfair.
In particular, the motion cites the consistent pattern of highly prejudicial statements among the African-American community, both from average citizens and from leaders of groups like the local NAACP.
All who have followed the case would, of course, be familiar with these developments. The motion cites a particularly troubling event, convened by the NAACP shortly after the arrests of Reade Seligmann and Collin Finnerty. The meeting concluded, according to a Herald-Sun article, with a request for “even-handed justice.” The response? “Laughter and giggles.”
3.) The biased coverage of Durham’s own Herald-Sun. The motion explains, “In its editorial positions, the Herald-Sun has relentlessly condemned the Duke Lacrosse team and encouraged a prosecution of the Defendants in these cases.” It has done so through nearly 300 articles, 20 unsigned editorials, and dozens more op-eds or guest columns.
A few specific examples from the motion:
--“In its first significant editorial on these cases, the Herald-Sun stated that not only had a crime occurred, but that those present during the crime were guilty of an additional ‘outrage’ by not confessing to the crime.”
--Repeated claims “that the District Attorney must have compelling evidence that has not yet been revealed, evidence that justifies its positions.”
--A pattern of having “consistently and openly mocked any claim of innocence made by the Defendants and repeatedly claimed they are privileged persons with expensive lawyers.’
--Editorial suggestions that “it is up to the Defendants to prove their innocence.”
As important, the motion notes, the H-S has provided no pretense of balance, stacking its op-ed columns with extremist critics of the lacrosse players.
4.) Employees of the county’s largest employer have repeatedly, publicly, and viciously condemned the players. Those employees? Professors of Duke University.
The Group of 88’s statement, appropriately, is cited as an example of the Duke faculty acting to poison community sentiment against the lacrosse players. Also highlighted are efforts in this regard by Karla Holloway, Peter Wood, Grant Farred, and Orin Starn.
That the institution’s own faculty could be cited in a change-of-venue motion should deeply shame Duke.
As the motion points out, Nifong’s own comments—made in the context of the election—confirm the facts presented by the defense.
In an interview with the Associated Press on October 30, 2006, the District Attorney observed that while he could make these cases “go away pretty easily . . . with the stroke of a pen. But that does nothing to address the underlying divisions that have been revealed. My personal feeling is the first step to addressing those divisions is addressing this case.” Earlier, in a campaign appearance before the Rotary and Kiwanis Club, the District Attorney declared: “If a case is of such significance that people in the community are divided or up in arms over the existence of that case, then that in and of itself is an indication that a case needs to be tried.”In short, this was yet another in a string of extraordinary defense motions.