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Judge Blasts Defense Attorney in Duke Case
By: Cash Michaels
Special to the NNPA from The Wilmington Journal
Originally posted 7/26/2006
WILMINGTON. N.C. (NNPA) -- The cousin of the alleged victim in the Duke lacrosse rape case says it’s about time a judge admonished the defense attorneys for their constant and aggressive negative spin of the evidence against the accuser.
Jakki (she withholds her last name for protection), the designated spokesperson for the young mother of two and NCCU student who alleges she was raped and beaten by three indicted members of the Duke University lacrosse team last March during a wild off-campus party, adds that her younger cousin “is touched” by the outpouring of love and support she’s received from www.ourheartsworld.com, given the avalanche of damaging information the defense and major media have circulated about her.
But it was Durham Superior Court Judge Kenneth C. Titus’ warning of the high-powered Duke lacrosse defense attorneys during a hearing on Monday that made the alleged victim’s family and supporters jump for joy.
“Bravo to that, because that’s something that I think the former judge should have done,” Jakki said. “[Our family] is just elated.
Jakki went on to say she hadn’t spoken to her embattled younger cousin since last week, but that she was sure she’s “pleased as punch.”
“Now, maybe there will be more of a level playing field,” she said.
Fearing that the possibility of a fair trial was becoming more remote by the minute, given the massive amount of negative pre-trial publicity mounted by both Durham District Attorney Mike Nifong early on, and the phalanx of high-priced defense attorneys representing Colin Finnerty, 19; Reade Seligmann, 20; and David Evans, 23; Judge Titus, a resident jurist who will preside over the three-stage case management pre-trial hearings in the case for the next six months, threatened contempt-of-court charges if all parties did not adhere to his warning.
Even Nifong, who will face Durham County Commissioner Lewis Cheek in the November elections (though Cheek still hasn’t officially declared his unaffiliated candidacy), has admitted that he stepped out of bounds with the 50-70 television interviews he gave in the early stages of the investigation.
But after the May primary, he stopped.
The defense attorneys, on the other hand, have continued to hold numerous press conferences; conduct any number of media interviews; have leaked photographs and discovery evidence to selected members of the major media like MSNBC’s Dan Abrams, a Duke University alum; and filed questionable motions whose sole intent was to bait the press with damaging and scandalous discovery information about the alleged victim that challenges her veracity about her allegations.
Those defense attorneys maintain that their clients, Finnerty, Seligmann and Evans, are innocent of first-degree rape, first-degree sexual assault and first-degree kidnapping.
They have also accused D.A. Nifong of dividing the Durham community racially, at the same time insisting that race has nothing to do with the case.
That contention flies in the face of unrefuted evidence that the Duke lacrosse team hired and paid two poor Black women of color to debase themselves by stripping for the predominately white drunken players’ entertainment, then racially taunted them with slurs, objects and crude remarks like, “Bitch, thank your granddaddy for my cotton shirt,” when things got out of hand at the party.
Defense attorneys dismiss that evidence as not indicative of racism on their clients’ part.
Interestingly, those same Duke defense attorneys have not returned phone calls for comments from Black newspapers, and have made no attempt to reach out to the Black Press, fearing, perhaps, a less than favorable reception for their negative spin campaign against the Black female alleged victim.
Judge Titus made it clear that he had heard enough.
“This court takes judicial notice of the extensive pretrial publicity that’s been available in all of these cases, including media coverage with statements and information which would normally be prohibited by Rule 3.6 of the NC [State Bar Association’s] Revised Rules of Professional Conduct,” Judge Titus told all of the attorneys before him.
“It is this court’s responsibility to ensure that the defendants and the state proceed with the constitutionally guaranteed right to a fair trial by a jury free from partiality, bias or prejudice.”
“Future statements or disclosure of additional information, otherwise prohibited by Rule 3.6, will have a substantial likelihood of materially prejudicing that right,” the clearly concerned judge continued. “I am, therefore, entering an order in these cases, which require compliance…”
That rule limits attorneys on all sides of an ongoing case to comments and responses that do not ultimately prejudice evidence in a trial.
Nifong has been blamed for calling the Duke lacrosse suspects “a bunch of hooligans” publicly, while defense attorneys have called the alleged victim “a false accuser,” among other things.
Outside the court, defense attorneys, maintaining their spin of what clearly was a judicial rebuke of their previous actions, said they did nothing wrong, and in fact, would continue doing what they’ve been doing.
D.A. Nifong left the courtroom saying nothing to reporters, which has been his practice for months.
Despite the apparent defense brush-off of Judge Titus’ order, supporters of a fair trial were hopeful both sides got the message.
“Praise God,” Rev. William Barber, president of the NC NAACP, said Monday from Washington, D.C., where he’s attending the annual national NAACP Convention this week.
Barber, along with N.C.C. civil rights attorney Al McSurely, chair of the NC NAACP’s Legal Redress Committee, had petitioned Superior Court Judge Stephens weeks ago to impose “quiet zone” limits on the relentless amount of negative spin defense attorneys were engaging in.
“Most other lawyers, including myself, just don’t feel right challenging other lawyers and their tactics,” attorney McSurely said by phone from Washington Tuesday. “But here, it was clearly over the edge what they were doing.”
“As an attorney, there are supposed to be professional standards which you abide by. I’m glad someone in authority has reminded them of that.''
Law Professor Irving Joyner, of North Carolina Central University’s School of Law in Durham, has repeatedly been quoted in the press saying that the Duke lacrosse defense attorneys have been spinning the major media “like a violin” with no end in sight.
He welcomed Judge Titus’ ruling, but expressed reservations about the timing.
“It’s about time; it’s appropriate, but I don’t know if the horse isn’t already out the barn,” Prof. Joyner said, referring to damaging information about the accuser’s alleged sexual and mental history, along with her criminal record that defense attorneys has exploited to create a torrent of negative media against her, while building a growing support base – primarily in the white community – for their indicted clients.
“If [the horse is] not out of the barn, most of the body is,” Joyner added.
“I think the prosecution has been wounded by what the defense has done up to this point,” Prof. Joyner continued, though he cautioned that too much defense spin could also cost their case some credibility at trial time if they can’t deliver what they’ve promised.
“The critical question is whether… a jury [can be picked] who profess to be able to be fair and impartial.”
“I don’t know if [Judge Titus’ order] is going to cure the prejudice that has developed, but it was certainly appropriate for a judicial official to step in and put a halt to all of this grandstanding.”
Judge Titus is also expected to rule July 21 on whether the prosecution is entitled to the home addresses and student identification card information of all of the 47-member Duke lacrosse team, saying that since most of them were at the March 13th party where the alleged rape occurred, they are all considered possible witnesses.
The next hearing in the case is scheduled for August 21.
Meanwhile, reaction continues to the exclusive report here a month ago of the alleged victim’s allegation that “alums of Duke” attempted, through her family, to offer her $2 million in hush money early in the case, if she would just “make the case go away.”
Her cousin Jakki, who cautioned that she had no firsthand knowledge of the alleged attempt and was relating what the alleged victim had told her, said then that her cousin wants her day in court to testify truthfully as to how she was beaten and sodomized. Even the hint of her accepting any money beyond her family and close friends, even from well-meaning supporters, was something she couldn’t allow, concerned that the appearance of such would undermine her case.
“It’s not about the money to her,” Jakki said then. “It’s about her [being] brutally raped, sodomized, called a ‘nigger.’”
The allegation became more intriguing when sources close to certain moderate Black leaders, who asked not to be revealed, confirmed too that they were approached by people “with connections to Duke” with a offer of money, not only for their organizations, but for North Carolina Central University (the alleged victim’s school), and for her, if they could influence her to recant the charges.
They refused, the sources alleged. Bribing, or attempting to bribe a material witness in a criminal case is a crime punishable by law. However, since D.A. Nifong is no longer commenting to reporters, it is not clear whether he’s looking into the matter.
What made the allegation even more intriguing is the surprising reaction from a spokesman for Duke University.
Sam Hall, communications director for Duke University Alumni Affairs, told The Carolinian and Wilmington Journal newspapers a month ago that after checking with other officials at the university about the “alums of Duke” allegation, “We have no information about that.”
“I think there’s been a rumor of it since the beginning, but…I’ve never heard it discussed,” Hall added.
Not the total denial one would expect, observers say.
Since then, the story has been the subject of hot debate on Internet blogs supportive of the indicted Duke players, with many charging that it “is a lie to get back at the defense attorneys” and that “the story had no proof.”
Even the highly-rated Hannity and Colmes TV show on Fox News cable channel debated the story, with conservative host Sean Hannity saying he didn’t believe, though other program participants suggested it wasn’t far fetched given the relative wealth of some Duke alums.
Someone even suggested that if it indeed happened, it might have been a ploy to set the alleged victim up to prove that she was lying about the rape and assault.
Defense attorneys, in the interest of protecting the momentum they’ve gained with their massive negative spin on the evidence so far, immediately denied the allegation when The Carolinian and Wilmington Journal newspapers first and exclusively reported it in June.
But no one else, particularly officials at Duke University, has categorically denied it, thus undermining the defense attorneys’ denial.
“No one [in a position to know] has said emphatically, ‘It’s a lie, it’s an out and out lie.’ Nobody has done that,” Jakki maintained this week.
The last few weeks have been relatively quiet in the case, giving Jakki’s cousin a chance to recoup and try to maintain “some semblance of a normal life” for herself and her two children, Jakki says. When Colin Finnerty, one of the indicted Duke suspects alleged to have raped her, was convicted last week in Washington, D.C. of misdemeanor simple assault from an incident where he had been excessively drinking, Jakki said her cousin refused to say anything harsh or gloat about the verdict, hoping instead, that people, on their own, would make note of the D.C. testimony alluding to his loss of control while drinking.
Jakki also revealed exclusively that her cousin has finally visited www.ourheartsworld.com - the community-based website launched on Mother’s Day supporting her right to testify - featuring supportive messages of love and concern from across the world for her – and was touched by those who have, and continue to reach out to her.
“Initially she had not gone to the website because she did not know that negative responses were not [allowed there],” Jakki said.
“But since then she has gone on there. That one story about the young lady who said, ‘I was raped and never told anybody,’ …that really touched her,” Jakki said. “She wanted me to thank [everyone].”
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