I am of the opinion that the Duke lacrosse case has made all of our jobs more difficult, especially after the press conference held by the players. Are there any opinions as whether to speak of the matter in voir dire? Should the issue be handled by educating the public in some other way?

No great thoughts on voire dire.

I don't pretend to know the ins and outs why cases weren't filed in the TYC situation. I did think however, when members of the Legislature were asking about impeaching Texas Prosecutors, and raising the name of Mike Nifong, that it have been fitting, but probably imprudent, to point out that Mike Nifong was being condemned for launching exactly the sort of media-hysteria driven prosecution that some members of the Legislature were clamoring for.

Prosecutors Feeling Impact of 'Duke Effect'
By Tresa Baldas
The National Law Journal
05-18-2007

New Jersey prosecutor Paul DeGroot knew it wouldn't take long for the Duke University lacrosse rape case to wreak havoc on prosecutors.

"It's becoming a tool and a buzz word for defense attorneys to say, 'Look what happened at Duke,'" DeGroot said.

He speaks from experience.

Shortly after the rape charges were dropped against the three lacrosse players -- and the prosecutor, Durham County, N.C., District Attorney Mike Nifong, was hit with ethics charges for allegedly withholding DNA evidence -- a defense lawyer in a recent drug case tried to use the Duke case against DeGroot.

"He said to the jury, 'We all know a prosecutor can indict a ham sandwich. Just look at what happened in that case down in Duke,'" recalled DeGroot, senior assistant prosecutor in Passaic County, N.J. "I objected as soon as that came out. And I made sure I added to say, 'In this county, we don't try cases like that.'"

NATIONAL FALLOUT

Prosecutors across the country are seeing fallout from the Duke case, as defense attorneys use it to discredit other criminal cases and paint them as overzealous prosecutors with something to prove.

In Texas, one defense attorney recently cited the case during voir dire, and again in closing argument, in an assault case involving a teacher accused of pinning down a female student while other students beat her. The lawyer reminded jurors about what happened at Duke. The defendant was found not guilty in three minutes.

"Prosecutors should be worried," said defense attorney Edmund "Skip" Davis, the Texas attorney who cited the Duke case in the recent assault trial and plans to cite it in a rape trial next week.

In the teacher assault case, Davis asked jurors during voir dire if they were familiar with the "tragedy" that happened in the Duke case and whether they thought it was a shoddy investigation. At closing, he reminded jurors not to rush to judgement to avoid "that tragedy that nearly fell upon those kids at Duke."

"I told them, 'Just because someone hollers out that a crime has been committed just does not make it so,'" Davis said. "And the Duke case made a perfect example of that."

In Ohio, criminal defense attorney Ian Friedman of Ian N. Friedman & Associates in Cleveland said he plans to ask jurors during voir dire about the Duke case in an upcoming rape trial to see how they feel about false accusations and mishandled investigations.

"Everyone in my firm is well aware that this [Duke] example should be raised -- during voir dire, during closing arguments ... because this may cause a jury not to rush the judgment," Friedman said.

Friedman said that while defense lawyers for years have addressed wrongful convictions with jurors, the Duke case is a more powerful tool because so many people know about it. It put the presumption of innocence back on the radar screen, he said.

Neither Nifong, the Duke prosecutor, nor his attorney, David Freedman of Crumpler Freedman Parker & Witt in Winston-Salem, N.C., returned calls for comment.

Nifong faces ethics charges and possible disbarment for allegedly exploiting racial tensions, withholding exculpatory evidence and trying the students in the media. The case involved three white male students accused of raping a black stripper. All charges have been dropped.

TARNISHED IMAGE?

Prosecutors, meanwhile, believe that the Duke case is tarnishing their image, and could potentially hurt future cases.

"[That case] definitely is going to make it difficult for us, there's no question about it," said Joshua Marquis, district attorney in Clatsop County, Ore.

In 1994, Marquis replaced the former district attorney, Julie Leonhardt, who was removed from office -- and eventually convicted -- for falsely accusing two police officers of stealing drugs from an evidence room and selling it.

Marquis said that case, like the Duke case, sends a strong message to prosecutors: Strictly adhere to the rules of professional conduct and don't publicly talk about your case.

"You don't talk about someone's criminal record. You don't talk about confessions. You don't talk about tests. If you do it, then the chance of a person being denied a fair trial is great," he said.

The truth needs to be told in voir dire or in response to a defense remark whenever the issue is raised. The three Duke students were never close to being wrongfully convicted. They were wrongfully accused, the case was investigated, and the case was dismissed.

In radio communications one often encounters a garbled or out-of-place message originating on another channel. Maybe that analogy will help to lessen the effect. Any prosecution could be wrongful, but focusing on one rotten apple in the barrel (in this instance one case out of hundreds of thousands) illustrates a mere possibility. Hopefully prospective jurors will not long be too willing to paint with broad brushes. But, it is a scab, and it will be picked. I think we just have to emphasize that each case is unique and the credibility of any witness must not be judged unfairly.

I might also suggest that any mention of the Duke case by way of comparison to the case you are handling should be objectionable, and I would stamp my feet loudly at the attempt by the defense to imply that the prosecution has withheld exculpatory evidence or knowingly pursued a conviction against an innocent person. They are attempting to attack the State's case by slandering the prosecutor, and I would demand an apology.

Would that be a good time to point out the fact that the Defense has everything that the prosecution has in regards to the case at hand, both good for the state as well as bad (isn't that one of the Duke case's problems? Hiding evidence), along with a list of all witnesses, etc. as required by law, AND that the prosecution doesn't get the same shake. Can't tell how many times the jury asks us after a trial why we didn't know about the office party he was coming from and why we didn't go and speak w/those co-workers that might have seen just how much he/she had to drink. The fact that we can't speak to them after the arrest w/o their attorney is alien to them. (The fact that the defense doesn't call them to do the same usually escapes as well).