Something Taint Right

In the latest act of the long running performance by the Durham Theater of the Absurd Duke Hoax: The Drama, we see the play’s antagonist, DA Mike Nifong, submit a new motion to the court. The object of his ire, it appears, is a random telephone survey of 300 Durham residents conducted by a research firm retained by the defense attorneys. While Mr. Nifong was aware of the survey a month ago and raised no objections then, he now has decided that he dislikes the tone of the questions. Based on the impressions of his wife, Cy Gurney, Mr. Nifong contends that the telephone survey was designed to taint the Durham jury pool by quizzing 300 of Durham County’s nearly 250,000 residents.

While it appears unlikely that questions posed to 0.12% of local residents could serve to taint the jury pool regardless of how they are phrased, DA Nifong argues in his motion that the defense attorneys' efforts to assess the damage his highly-publicized extrajudicial statements inflicted on their clients is somehow an effort to influence opinions. To understand better the degree of hypocrisy that colors the filing of this motion, we propose a new survey be conducted.

Question One

Which of the following actions is more likely to influence opinions and/or taint a jury pool:

• A. Telephone Survey of 300 people.
• B. An appearance on prime time national TV.
• C. Dozens of appearances on prime time national TV combined with dozens of other media interviews distributed world wide.

Question Two

Which of the following statements is more likely to influence opinions and/or taint a jury pool:

• A. Are you familiar with the case in Durham about the rape of a stripper and members of a sports team? (Addressed by phone to 300 people)
• B. "I would not be surprised if condoms were used…Probably an exotic dancer would not be your first choice for unprotected sex." (Addressed to the states largest newspaper by an interim District Attorney.) Charlotte Observer
• C. "The reason that I took this case is because this case says something about Durham that I’m not going to let be said. I'm not going to allow Durham's view in the minds of the world to be a bunch of lacrosse players at Duke raping a black girl from Durham." (Addressed to a local television audience by an interim District Attorney.) WRAL

Question Three

Which of the following statements is more likely to influence opinions and/or taint a jury pool:

• A. Do you think a woman's sexual history should be part of a criminal trial? (Addressed by phone to 300 people)
• B. "When I looked at what happened, I was appalled. I think that most people in this community are appalled," Nifong said. (Addressed to a local television audience by an interim District Attorney) WRAL

Question Four

Which of the following statements is more likely to influence opinions and/or taint a jury pool:

• A. If you heard that there was semen on the towel, on the floor and fingernails located at the scene, yet there was not any DNA evidence on the victim, would you think a rape occurred? (Addressed by phone to 300 people)
• B. "How does DNA exonerate you? It's either a match or there's not a match…If the only thing that we ever have in this case is DNA, then we wouldn't have a case." (Addressed to a local major daily newspaper by an interim District Attorney) N&O
• C. "The absence of DNA doesn't prove anything," (Addressed to a local major daily newspaper by an interim District Attorney) N&O

Question Five:

Which of the following statements is more likely to influence opinions and/or taint a jury pool:

• A. If a woman is hired as a stripper and she said she was raped, how likely are you to believe her? (Addressed by phone to 300 people)
• B. "And one would wonder why one needs an attorney if one was not charged and had not done anything wrong." (Addressed to a national television network by an interim District Attorney) ESPN

Question Six:

Which of the following statements is more likely to influence opinions and/or taint a jury pool:

• A. If you heard that one player had an alibi that included an ATM card listing the date and time of a withdrawal and digital camera photographs with the date/time on them indicating that he was not present at the time of the alleged rape, would you believe that he was not present during the rape? (Addressed by phone to 300 people)
• B. “The circumstances of the rape indicated a deep racial motivation for some of the things that were done. It makes a crime that is by its nature one of the most offensive and invasive even more so.” (Stated by an interim District Attorney and distributed worldwide by the Associated Press) MSNBC via AP
• C. "The racial slurs involved are relevant to show the mindset … involved in this particular attack, and, obviously, it made what is already an extremely reprehensible act even more reprehensible." (Addressed to a national television audience by an interim District Attorney) CBS

Question Seven

Which of the following statements is more likely to influence opinions and/or taint a jury pool:

• A. Do you think the lineup was improper? (Addressed by phone to 300 people)
• B. "Anytime you have a victim who can identify her assailant, then what you have is a case that must go to the jury, which means, in this situation, a jury will get to evaluate the evidence," (Stated repeatedly by an interim District Attorney on local and national television) WRAL LieStoppers

Question Eight

Which of the following statements is more likely to influence opinions and/or taint a jury pool:

• A. "If the prosecutor in a community took on a sensational case right before a primary/election, do you think such a case would be handled for political gain?" (Addressed by phone to 300 people)
• B. “I am convinced that there was a rape, yes, sir.” (Addressed to a nationwide television audience by an interim District Attorney) MSNBC
• C. "It is a case that talks about what this community stands for," (Addressed to a local television audience by an interim District Attorney) WTVD
• D. "There's a good chance if someone had spoken up and said, 'You can't do this,' it might not have happened," (Addressed to a local television audience by an interim District Attorney) WRAL
• E. "The information that I have does lead me to conclude that a rape did occur, I'm making a statement to the Durham community and, as a citizen of Durham, I am making a statement for the Durham community. This is not the kind of activity we condone, and it must be dealt with quickly and harshly." (Addressed to a local television audience by an interim District Attorney) NBC17
• F. "There won't be any arrests before next week. I have decided not to make arrests until DNA evidence is back. This is not a case of people drinking and it getting out of hand from that. This is something much, much beyond that." (Addressed to a local television audience by an interim District Attorney) NBC17
• G. "I feel pretty confident that a rape occurred." (Addressed to a national television news network by an interim District Attorney) FOX News
• H. "We're talking about a situation where had somebody spoken up and said, 'Wait a minute, we can't do this,' this incident might not have taken place," Nifong said he plans to prosecute the case himself to send a message to the community that authorities are taking the offense seriously. (Distributed worldwide by the Associated Press) Journal Now via AP

Question Nine

Which of the following phrases best describes your impression of Michael B. Nifong?

• A. Petty Tyrant National Journal
• B. Pure Unadulterated Evil Wendy McElroy

As hypocritical as Nifong’s motion appears, what makes it most fitting for this performance of the Theatre of the Absurd is the affiant on whose "objective" impressions this motion is based. With his spouse as the witness on this motion, we fully expect one of his next motions to feature an affidavit from his cheerleader, Bob Ashley.

N&O Article

Herald Sun Article

KC Johnson: Nifong Done Lost His Mind

Nifong Motion

Defense Response