Friday, December 15, 2006

Change of Venue Motion

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.


Anonymous said...

This change of venue motion is going to be mooted by the end of February, when the judge grants the defense's motion to exclude the line-up identification.

Anonymous said...

I can only hope you are right!

Anonymous said...

Do we have a link to the Change of Venue Motion? Or did I miss it in the article? thx

Anonymous said...

Beautifully done.


Anonymous said...

Did WRAL takes it's documents summary page down, or is it just so overloaded with ppl looking for docs that we're all getting 404's?

Anonymous said...

One thing not mentioned in this post by KC is whether the defense made reference to Nifong talking about the racial aspect of the case in his public comments. For example, the comment he made about the epithets making a crime that is already horrible even moreso and the comment about him not letting the view of Durham in the eyes of the world be what those players did to a little girl from Durham. Those fanned the flames as much as anything.

Anonymous said...

gprestonian: -- There ia a working link to the change of venue motion at WRAL. Go to, click on the 'Duke Lacrosse' logo, then click on 'Change of Venue Motion.' It's worth reading. The drafters obviously read this blog.

Anonymous said...
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Anonymous said...

Professor Johnson,

Did the defense contend that any statements by President Brodhead have served to poison the atmosphere against the players? If not, it would appear that they do not share your views on that issue. Do you agree?

Anonymous said...

do not worry about "negroes" on any jury as the defense is now showing its true colors and racism by trying for a change of venue to a white county and if any blacks show up in voir dire, they will be dismissed by their preemptory challenges. The duke 3 have nothing to worry about as the deck is now stacked.

Anonymous said...

Stacked with an outragous lack of evidence if anything.

Nifong picked his poison, it's not the players' faults that he biased the community.

Anonymous said...

3:16 -- No, the defense didn't pick up on Brodhead's remark that "Even if they didn't commit rape, what they did do is bad enough." Or perhaps they just decided they already had enough examples of poisonous remarks from Brodhead's faculty colleagues. Either way, to infer that the defense must therefore be satisfied with Brodhead's performance regarding the hoax is silly.

Anonymous said...

Not silly at all. The defense team is very smart, and they filed a very thorough and detailed motion for change of venue. In that motion, they picked up on prejudicial statements made by all of the people KC has been criticising on this website, except for Brodhead. This indicates that they do not agree with the criticism of Brodhead. Are you suggesting that the key factor that drove their decision as to how to frame the motion was that they wanted to save the expense of one or two sheets of paper and 5 cents worth of computer ink to lay out the prejudicial statements made by Brodhead? Or are you saying that they made a deliberate decision that the perfect way to frame the motion was to focus on all of the prejudicial statements made by the faculty while totally ignoring all of the equally prejudicial statements made by Brodhead? If the defense team thought that Brodhead had made statements prejudicial to the players, they would have featured those statements very prominently in their motion, not ignored them altogether. The fact that this very thorough and detailed motion cites prejudicial statements by everyone under the sun except Brodhead indicates that the defense team does not regard the statements by Brodhead as prejudical. I realize this runs contrary to the agenda of the LAX team supporters, who desperately want to stick it to Brodhead and hopefully force him out of his position as president of Duke, but I guess the defense team is just more honest and straightforward than most of the other LAX team supporters.

Anonymous said...

I'm not a "LAX team supporter" but I am a supporter of the three falsely-accused Duke students who happen to be LAX players. And I don't "desperately want to stick it to Brodhead." But the widespread dissatisfaction with Brodhead's performance is clearly based much more on what he hasn't said than on what he has said. I don't fault him for not loudly proclaiming the students' innocence on Day 1. But I do fault him for not dissociating the University from the attacks on the students by the Gang of 88 and other faculty, not decrying the gross prosecutorial misconduct against his students etc. To lionize Brodhead simply because he has refrained (with at least one notable exception) from actually making prejudicial statements against his own students is faint praise indeed. He's the president of Duke; what has he done about the shameful conduct of his faculty as outlined in the motion and by KC here?

Anonymous said...

Bill A or KC- Do you know if anyone has contacted Barry Scheck?
If not, why not? He is one of my heros and would be invaluable to this case (I think). Is there an email address for him? Waiting to read your new articles.