Judge to review telephone survey about lacrosse case
By John Stevenson, The Herald-Sun
September 22, 2006 8:31 pm
DURHAM -- District Attorney Mike Nifong gave defense lawyers 615 more pages of information about the Duke University lacrosse rape case Friday, and Judge Osmond Smith agreed to review a defense telephone survey that Nifong said was tainting prospective jurors.
The new documentation brought to 2,465 the total number of pages Nifong has surrendered to the defense team so far. The latest paperwork reportedly included a 2½-inch stack of e-mails generated by the Durham Police Department.
Nifong also turned over a CD-ROM and an audiocassette tape to defense attorneys Friday.
"There's nothing in there that's bothersome," defense lawyer Joe Cheshire said later, after a brief review of the new materials. "We don't expect there will be."
Cheshire represents David Evans, a 2006 Duke graduate and one of three Duke lacrosse players accused of raping and sodomizing an exotic dancer during an off-campus party at 610 N. Buchanan Blvd. in mid-March.
The other defendants are Collin Finnerty and Reade Seligmann. All say they are innocent, and are each free under $100,000 bonds pending a trial expected to occur next year.
The defendants did not attend Friday's court hearing, the first in more than a month in the controversial, highly publicized case.
Kevin Finnerty, Collin Finnerty's father, was present but told reporters only that his son was staying healthy and doing well.
The most heated of many topics Friday was the recent telephone survey of 300 registered Durham voters, conducted for defense attorneys by a professional polling company.
Nifong -- backing his argument with sworn affidavits from his wife and an anonymous woman -- contended the survey was influencing prospective jurors against his case. His wife, Cy Gurney, and the unidentified woman both participated in the telephone poll.
The anonymous woman said the surveyor's "agenda was to try and persuade a jury or potential jurors. I thought that this has to be illegal. ? I believe I was told information that I should not have been told unless I was a member of the jury trying this case. I do not believe I could be an impartial witness after hearing this because I was convinced that [the three suspects] were innocent."
Nifong branded the poll Friday as "prima facie evidence of an attempt to influence jurors."
But defense lawyers said they needed to determine how much prospective jurors may have been influenced by Nifong's public comments early in the case -- including assertions, before DNA test results came back, that the three suspects were guilty.
The survey was one way of finding out, the lawyers said.
"We felt in this case it was highly appropriate because of the massive publicity," said attorney Wade Smith, representing Finnerty. "We would be derelict in our duties, we would commit actual malpractice, if we don't try to figure out what kind of jurors we should have."
Smith denied the polling was an attempt to influence prospective jurors.
"The whole idea here is to find out what people think, not to tell them what to think," he said. "We would be shooting ourselves in the foot if we tried to create questions to get a particular answer. ? We did this in the best of faith, the very best of faith. We think we must do more of it."
Judge Smith agreed to examine the survey questions and answers but withheld any ruling on the topic indefinitely.
"It's just a silly little issue," Cheshire said later. "Polling has been done in criminal issues in this state for 30, 40 years. You have to have some idea, in order to pick a jury, what people are thinking."
Cheshire also said that, based on what they learned about prospective jurors, it was possible -- but not certain -- defense attorneys would ask to move the trial away from Durham.
In other business Friday, Judge Smith turned down a defense bid to get more precise information from Nifong about the time and location of the alleged rape.
Lawyer Kirk Osborn, representing Seligmann, said prosecution information suggested the crime had occurred over roughly a 30-minute period late on March 13 or early on March 14.
But Osborn said he needed a more specific time to support Seligmann's alibi -- that Seligmann has taxicab, bank ATM and cell phone records indicating he was doing other things from 12:05 a.m. until 12:46 a.m. on the 14th.
"When you assert an alibi, time is of the essence," Osborn said. "What day did it happen? Was it the 13th or the 14th?"
Osborn also said the accuser had further muddled the situation by giving at least a dozen inconsistent or implausible versions of what allegedly happened to her.
For example, she claimed she had been raped in a bathroom containing a blue carpet and a full-length mirror, but the only full-length mirror was in a different bathroom, according to Osborn.
So Nifong should be required to specify which bathroom was at issue, Osborn argued unsuccessfully.
Nifong contended the law did not require him to answer Osborn's questions.
"If he [Seligmann] can't provide for every minute in his alibi, it means the alibi is not airtight," Nifong said. "But if I had to speculate, I would say this whole event probably took about five minutes, 10 minutes at the outside. If [Seligmann] wasn't there, he doesn't have to worry about it."
Another ruling from Judge Smith went in favor of the defense lawyers. It allows them to receive underlying data that led researchers to conclude there was no DNA from any of the three rape suspects in or on the accuser's body, or on her clothing.
Initial scientific testing was done by the State Bureau of Investigation in Raleigh, with follow-up work at Nifong's request by a private firm, DNA Securities in Burlington.
Lawyer Brad Bannon, representing Evans along with Cheshire, said Friday the underlying scientific data was needed to assess the reliability of DNA results.
"The bottom line is, the state chose to pursue this evidence," Bannon said. "We are entitled to the information no matter how much it costs. You can't say the Fifth Amendment and Sixth Amendment have a price."
The judge agreed and ordered the SBI and DNA Securities to provide the requested data by Oct. 20. He also ruled that taxpayers must pay the $4,035 needed to acquire the information from the private laboratory in Burlington.
Another court hearing in the case is scheduled for Oct. 27.
URL for this article: http://www.heraldsun.com/durham/4-772261.html
I missed this. Is there a source?