http://www.newsobserver.com/1185/story/489883.html
DA gets to wait on his theory
Lacrosse case is focus of hearing
Benjamin Niolet and Anne Blythe, Staff Writers
DURHAM - District Attorney Mike Nifong will wait until the Duke University lacrosse rape case goes to trial before telling the defense exactly what the state thinks happened on the night in March that an escort service dancer accused three players of rape.
In a lengthy court hearing Friday, defense lawyers lost their effort to force Nifong to spell out in detail what investigators and the accuser say took place.
"What we're wanting is the exact time that this occurred," defense lawyer Kirk Osborn told the judge. "Her statements are inconsistent about which bathroom it occurred in. ... Her statements are inconsistent about who did what to her."
Superior Court Judge W. Osmond Smith III agreed with Nifong. The state will present its theory of the case -- including what each player is specifically accused of doing -- at trial. Nifong told the lawyers that they can ask questions about the timeline of the accuser, who will "most certainly" testify.
In addition to a new stack of written evidence, Nifong gave the lawyers some new details about the case. He said in court that the woman says she was assaulted vaginally and orally and that someone assaulted her rectum with either objects or body parts. The woman told police that the attack took 30 minutes, but Nifong said it may not have lasted that long.
"If I had to speculate, I'd say this whole event took five minutes, maybe 10 minutes at the outside," Nifong said. "I would ask the court to take judicial notice that when something happens to you that is really awful, it seems to take longer than it actually takes."
The hearing was the first since Smith was appointed to handle the case until its end. The next is scheduled for Oct. 27.
Dave Evans, Collin Finnerty and Reade Seligmann are each charged with first-degree rape, first-degree kidnapping and first-degree sex offense. The players did not attend Friday's hearing. Finnerty's father, Kevin Finnerty, was present.
Nifong handed over 615 pages of evidence as well as a cassette tape and compact disc to the defense lawyers. The new batch brings the amount of pages of evidence collected for the case to 2,465.
At the hearing, Nifong and the lawyers discussed evidence yet to come, a defense poll of Durham residents and a judge's order that prevented potential witnesses from speaking to the news media. And as they do every time the lacrosse case goes to court, Nifong and the lawyers carped at each other throughout the morning and afternoon. When defense lawyers spoke, Nifong occasionally sighed, rolled his eyes, laughed quietly or rubbed his temples.
"I have to note the irony," Nifong told the judge when a defense lawyer asked for more information about DNA testing. Nifong told the judge that the lawyers held news conferences after both rounds of DNA testing were complete to announce that the tests showed no rape occurred. Yet now, the prosecutor said, the lawyers wanted the type of information defense lawyers often use to attack the reliability of DNA tests.
"It's interesting now that they are trying to get information that would help dispute those tests," Nifong said, noting that the information the defense wanted copied from a private lab would cost $4,000.
Defense lawyer Bradley Bannon raised his voice saying that the district attorney obtained indictments despite the first DNA tests, which were negative. "The state chose to pursue this evidence. We are entitled to this information that we're asking for no matter how much it costs."
The judge ordered the state court system to pay the costs of the lab employees' time and resources.
Nifong told the judge that a telephone poll commissioned by the defense was an attempt to influence the opinions of potential jurors. Nifong only knew about the survey because a pollster called the Nifong household Sept. 11 and spoke to the prosecutor's wife for an hour. She filed a sworn statement in which she described the interviewer as more interested in giving information than receiving it. In court Friday, Nifong produced another sworn statement from a woman who said she was polled and thought that she had been given a version of the facts in the case that was designed to skew her opinion.
Nifong asked the judge to decide whether the poll was appropriate and to decide whether it violated any ethical rules.
Defense lawyer Wade Smith told the judge that the poll of 300 Durham residents was necessary because of the unprecedented amount of publicity the case has received.
"We have tried to think of any case in North Carolina history that comes close to the kind of interest that has been generated in this case," Wade Smith said. "There isn't a person at this table who would squint down his eyes and say, 'I think I will try to influence improperly the 240,000 people of this county.' "
Defense lawyer Joseph B. Cheshire V was less cordial.
"I do not take being accused of violating the canon of ethics lightly," he said.
The lawyers gave Judge Smith a sealed envelope containing the survey questions. Cheshire told the judge that when he reviewed the questions, he would notice that they differ greatly from the way Nifong's wife remembered them.
The judge also ordered the lawyers to abide by the rules of professional conduct that govern lawyers in North Carolina. The order replaces one issued by a previous judge that applied the rules -- and specifically the ones regarding statements to the news media -- to witnesses in the case. Judge Smith said he would make no judgments on the previous statements by lawyers in the case, but now that he was assigned, the lawyers should remember that cases are tried in court.
"The issues of this case need to be determined in the courtroom," the judge said.
Staff writer Benjamin Niolet can be reached at 956-2404 or bniolet@newsobserver.com.
WHAT ARE THE ODDS?
Wade Smith, a lawyer representing Collin Finnerty, made District Attorney Mike Nifong crack a wide smile Friday as he defended the defense's use of polling.
Smith, who has rarely spoken during hearings about the lacrosse rape case, noted the irony: Of the 300 people called in a county with a population of 240,000, the pollsters just happened to contact Cy Gurney, the district attorney's wife.
"I know Mr. Nifong knows that we would not call his wife," Smith told the judge in his colorful, homespun fashion as he argued against the accusation that the defense had tried to taint the jury pool.
Smith assured the judge that she would not be called again.
"She actually wants to be involved in any future surveys," Nifong said with a laugh.
HOW MANY?
When one of the defense lawyers said that Nifong gave 50 to 70 interviews about the case, Nifong said he wanted to set the record straight. He checked his schedule and it showed that he actually gave more like 15 to 20 interviews. He said he had many conversations with reporters, some just to say that he would not comment on the case.
But the number 50 came from Nifong himself.
In a March 31 interview with a News & Observer reporter, Nifong was asked "How many interviews do you think you've given?"
"In excess of 50," Nifong said.