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New article from the Durham Herald-Sun

http://www.herald-sun.com/durham/4-738696.html

Lacrosse case complaint filed by attorney

By John Stevenson, The Herald-Sun
May 25, 2006 10:40 pm

DURHAM -- Constitutional lawyer Alex Charns says a police poster unfairly sullied the names of 46 Duke University lacrosse players, implying all were guilty of raping an exotic dancer before the district attorney announced he had sufficient evidence to indict only three.

Charns, representing one of the unindicted players, has requested a police internal investigation in connection with the poster that declared the alleged victim "was sodomized, raped, assaulted and robbed. This horrific crime sent shock waves throughout our community."

Charns said he believed the poster, which offered cash rewards for assistance in solving the case, was displayed around the Duke campus and adjoining neighborhoods.

According to Charns, the poster "impugned the entire lacrosse team."

In an e-mail sent May 18 to City Manager Patrick Baker and shared with The Herald-Sun on Thursday, Charns asked "how is it that our police force offered to pay money to anonymous witnesses in order to solve a crime that it claimed to know for a fact had occurred? What happened to investigating a crime before a blanket accusation of guilt is made? Wasn't it 'Alice in Wonderland' in which the verdict came before the trial, and the accuser acted as jury and jury?"

The e-mail was copied to Police Chief Steve Chalmers.

Baker did not respond Thursday to a request for comment.

Without elaborating, police spokeswoman Kammie Michael said the poster "was amended on April 10 at the request of the Police Department after it was brought to our attention."

Asked if her department would comply with Charns' call for an investigation, Michael said only that, "We have already handled this matter."

She said CrimeStoppers, which produced the poster, was "not covered" by general orders that govern many Police Department activities.

In related business Thursday, lawyers for indicted rape suspect Collin Finnerty filed a routine court motion seeking "the complete files of all law enforcement and prosecutorial agencies" involved in the case, including any statements made by the alleged rape victim. They said state law entitled them to that information.

Meanwhile, in his call for an investigation, Charns asked whether the recent CrimeStoppers poster was in keeping with rules and regulations of the Police Department, and whether the department and the city had authorized it.

In addition, Charns filed a Public Records Act request for all news releases, e-mails, drafts, memos and chain-of-command authorizations -- if any -- that pertained to the poster.

"I expect a response to my request," the lawyer said in an interview. "The law gives me as a citizen part ownership of these records. They are public records. They don't have to explain things to me, but they certainly have to provide the records."

The poster in question came before District Attorney Mike Nifong obtained rape, kidnapping and sex-offense indictments against three Duke lacrosse players accused of assaulting an exotic dancer during an off-campus party at 610 N. Buchanan Blvd. in mid-March.

The suspects are Finnerty, 19, and Reade Seligmann, 20, both Duke sophomores at the time of the alleged incident, and David Forker Evans, who graduated this month.

After the final indictment was handed down last week, Nifong said he had no evidence to prosecute anyone else -- even though he previously hinted that others might be accused of aiding and abetting the alleged rapists.

In an initial round of scientific testing, the State Bureau of Investigation found no DNA from Finnerty, Seligmann, Evans or any other lacrosse players in or on the dancer's body, on her clothing and belongings or under her fingernails -- even though she said she clawed at her attackers to fend them off.

A subsequent round of tests by a private laboratory, DNA Securities of Burlington, also detected no incriminating DNA from any lacrosse players.

However, DNA Securities did find genetic material showing the dancer had sex with someone other than lacrosse players. Defense lawyers believe he was the woman's boyfriend.

Meanwhile, Seligmann has claimed to have an airtight alibi: cell phone, taxicab and bank ATM records indicating he was otherwise occupied during the only time defense lawyers think a rape could have occurred.

And Evans passed a private lie-detector test indicating he knew nothing about a rape and did not participate in one, according to his lawyer, Joe Cheshire of Raleigh.

On a related topic, several Durham attorneys -- not connected with the lacrosse case -- downplayed a hint by the NAACP that it would seek a judicial gag order to prevent defense lawyers from talking publicly about the situation.

The hint came Wednesday from lawyer Al McSurely during a Durham Conference on the Moral Challenges of our Culture.

"A freedom-of-speech issue is involved here," said attorney Mark Edwards. "I don't think he [McSurely] has any standing to ask for a gag order. Good luck to him."

According to Edwards, prosecutor Nifong would be the only person with standing to request that defense lawyers be muzzled.

URL for this article: http://www.herald-sun.com/durham/4-738696.html

Today's editorial about a gag order

http://www.herald-sun.com/opinion/hsedits/56-738548.html

Gag order cannot ensure a fair trial

The Herald-Sun
May 25, 2006 4:53 pm
Because of all the publicity surrounding the Duke lacrosse case and defense attorneys' unrelenting assault on the alleged rape victim's credibility, the state NAACP plans to ask for a gag order to ensure the alleged victim receives a fair trial.

Al McSurely, an attorney who chairs the legal redress committee for the state chapter of the National Association of Colored People, contends that defense attorneys are violating the State Bar's rules of professional conduct, which frown on comments outside of court that could prejudice a case. If that is the case, then the State Bar ought to police the behavior.

"We are seeing powerful forces trying to remove that right from her," McSurely said Wednesday during the inaugural Durham Conference on the Moral Challenges of Our Culture held at First Presbyterian Church in downtown Durham.

Over the past month or so, the impact of defense attorneys' constant chipping at the alleged victim's credibility has been clearly evident on these pages. Many of our readers are absolutely convinced beyond any reasonable doubt that the alleged victim is lying about what took place March 13-14 at 610 Buchanan Blvd. And it's probably pretty safe to say that many of them formed their opinions about the case after hearing persuasive defense attorneys do what they are paid well to do -- defend their clients.

We acknowledge that there certainly exists the possibility that the alleged victim, who was hired to strip at a wild lacrosse party, isn't being truthful about what happened in the bathroom. (She contends that she was raped, robbed and beaten that regrettable night.) But how anyone who was not present in the bathroom can claim to know for certain that three lacrosse players accused of rape are innocent isn't being honest.

With that said, we don't believe that a gag order, no matter how well intentioned, will help the alleged victim one bit. In fact, the more we learn, the better are her chances of getting a fair hearing. Seldom, if ever, has anything good come from the squelching of free speech.

And we don't believe that District Attorney Mike Nifong would be best served either if a judge muzzled defense attorneys. Nifong, through no fault of his own, is under a cloud of suspicion for pursuing this case in light of what his critics view as flimsy evidence.

There are some who believe that he only pursued the case to win over black voters -- the alleged victim is black, the players are white -- in the recent election. Imagine the outcry if defense attorneys were all of a sudden gagged.

No, the best way to ensure fairness is through the unfettered flow of information.

URL for this article: http://www.herald-sun.com/opinion/hsedits/56-738548.html