Judge Smith's Memorandum in the Cause

THE GENERAL COURT OF JUSTICE
DURHAM COUNTY
SUPERIOR COURT DIVISION

06 CRS 4331-4333 STATE v. FINNERTY
06 CRS 4334-4336 STATE v. SELIGMANN
06 CRS 5581-5583 STATE v. EVANS

MEMORANDUM IN THE CAUSE

The Court files the following as a memorandum in the cause herein:

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1. By order of August 17, 2006, the Chief Justice of the Supreme Court-of North Carolina assigned these cases to the undersigned judge, and this Court thereupon began its involvement herein.

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2. The Court promptly scheduled an in-chambers conference with counsel for all parties and thereafter conducted same on August 25, 2006. At such meeting all counsel discussed with the Court matters related to the current status of the case, pending and anticipated pretrial motions to be scheduled and heard, other possible and potential pretrial motions, tentative trial scheduling, and other administrative matters.

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More specifically, the State reported that it would be requesting a trial setting for early 2007, February or as soon thereafter as practicable after the hearing of pretrial motions. Counsel for the defendants noted that they would be requesting pretrial hearings on pending and anticipated motions for discovery, motions for a bill of particulars, motion for the Court to modify the provisions of a ruling by a prior judge related to Rule 3.6 of the North Carolina Revised Rules of Professional Conduct, motions to suppress, and possibly a motion for change of venue. Counsel for defendant Seligmann noted that though he had filed a motion for recusal of the District Attorney, that he was requesting that it not be heard at this time. The Court took the position thereon that the motion to recuse the District Attorney was not withdrawn, but that same would only be heard upon a request by the defendant therefor.

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The Court advised all counsel that it was available and would conduct hearings on these and any other matters that may arise upon request and/or notice by any party.Upon request and agreement of all parties, the Court scheduled pretrial hearings for September 22, 2006 to address the defendants' motions for discovery, for a bill of particulars, for modification of the prior order relative to RPC Rule 3.6, and for other matters that may be requested by the parties.

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The Court indicated at the August 25, 2006 meeting that it would prohibit electronic media and still photography coverage of pretrial proceedings. An administrative order for same was announced that day and subsequently filed herein.

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The Court also made it clear to the media and others that it would not be making any public comments about the cases outside of open court, nor would it be submitting to any media interviews.

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3. On September 22, 2006, the Court conducted the scheduled pretrial hearing to address all matters requested by the parties for hearing. At such hearing, the Court:

(a) Heard and ruled upon motions for discovery;

(b) Heard and ruled upon defendants' motions for a bill of particulars;

(c) Heard and ruled upon defendants' motion to modify previous judge's order relative to the Rules of Professional Conduct;

(d) Heard the State's motion to compel regarding the defendants' pretrial public opinion poll by telephone survey; such was ruled upon by the Court on September 26, 2006 after an in camera review of submitted documents;

(e) Granted a protective order by consent regarding records of the alleged victim;

(f) Addressed and ruled upon certain administrative matters, including those related to transcripts of the proceedings herein; and

(g) Scheduled the next pretrial hearing as agreed to by the parties for October 27, 2006.

4. On October 27, 2006, the Court conducted the scheduled pretrial hearing to address all matters requested by the parties for hearing. At such hearing, the Court:

(a) Executed the discovery order and executed an order for payment of costs related to compilation of discovery documents, both from the September 22, 2006 hearing;

(b) Re-addressed, with follow-up, some discovery issues regarding any statements of the alleged victim to the District Attorney and regarding notes and reports of investigators;

(c) Pursuant to request of the parties, undertook for in camera review voluminous documents containing confidential records relating to the alleged victim for determination by the Court as to whether same should be disclosed to the defendants; and

(d) Scheduled the next pretrial hearing as requested and agreed to by the parties for December 15, 2006.

5. After an in camera review of the subject documents, the Court, on December 15, 2006, entered its order directing disclosure of certain confidential records to the defendants and the State, subject to strict adherence to the applicable protective order. The Court met with counsel in chambers prior to the scheduled December 15, 2006 pretrial hearing to discuss and implement procedures for copying and dissemination of copies of the disclosed records. All of the records reviewed by the Court were ordered to be filed with the Clerk of Superior Court under seal, to remain sealed and not available for public inspection.

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6. On December 15, 2006, the Court commenced the scheduled pretrial hearing to address all matters requested by the parties for hearing. Included was the commencement of a hearing upon a motion filed by the defendants on December 13, 2006 entitled "MOTION TO COMPEL DISCOVERY: EXPERT D.N.A. ANALYSIS", in which the defendants requested:

(a) Production of certain items set forth in the motion; or

(b) An order directing Dr. Brian W. Meehan of DNA Security, Inc. to submit to questioning under oath regarding matters raised in the defendants' motion; or

(c) An evidentiary hearing on matters raised in the motion; and

(d) Any other order appropriate in the interests of justice.

At the hearing, the State tendered Dr. Meehan for examination by defense counsel without any initial questions by the State. Upon completion of the testimony of Dr. Meehan, the hearing on the defendants' December 13, 2006 discovery motion was recessed, without completion or other resolution, at the defendants' request before going forward.

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Significant concerns regarding discovery issues arose from the December 15, 2006 hearing.

Since the hearing was recessed without completion as set forth above, these concerns were not addressed by the Court at that time, and due to subsequent developments have not yet been addressed by the Court. Certain of those concerns and the consequences or effects thereof becamemoot by the State's eventual dismissal of all of the charges herein. Certain other of those concerns remain as they may pertain to actions of counsel.

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Further, since the hearing was recessed without completion and without addressing the concerns mentioned above, it would be incorrect to draw any conclusions as to what the Court believed or disbelieved regarding such concerns or as to any opinions of the Court regarding these or any other matters before the Court other than those opinions expressed in open court, by the Court's rulings, and/or by this memorandum.

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Further, at the December 15, 2006 hearing, the Court:

(a) Scheduled hearings on defendants' motions to suppress and motion for change of venue to begin February 5, 2007. The delay until February was necessitated by a January trial conflict of counsel for defendant Seligmann. Considering such conflict, the defendants requested and the State suggested the date of February 5, 2007 as preferable to all parties.

(b) Granted the defendants' request for an order for paternity testing regarding the alleged victim, conditional upon the alleged victim's pregnancy and delivery of a child.

(c) Recessed the December 15, 2006 hearing with the condition that if anything developed that needed to be heard before February 5, 2007, that the Court would be available for same.

7. On December 22, 2006, the State dismissed the rape charges against all defendants.

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8. On December 28, 2006, The North Carolina State Bar filed a complaint against the District Attorney before the Disciplinary Hearing Commission seeking disciplinary action against the District Attorney, alleging violation of the Revised Rules of Professional Conduct arising from his conduct related to the prosecution of these cases herein.

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9, On January 12, 2007, the District. Attorney requested the Special Prosecutions Section of the North Carolina Attorney General's Office to assume full responsibility for prosecution of the remaining charges against the defendants.

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10. On January 13, 2007, the North Carolina Attorney General accepted the request of the District Attorney and took over prosecution herein.

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11. On January 24, 2007, The North Carolina State Bar filed an amended complaint against the District Attorney, alleging additional violations of the Revised Rules of Professional Conduct arising from his conduct related to the prosecution of these cases herein.

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12. On January 30, 2007, the Court conducted an in-chambers conference with the Special Prosecutors and the attorneys for the defendants. The. State requested and the defendants consented to continue the scheduled February 5, 2007 hearings to May 7, 2007, to allow the Special Prosecutorsadditional time for investigation and evaluation of these cases. The Court granted such request and continued the matters to May 7, 2007.

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13. On April 11, 2007, .the Special Prosecutors dismissed all of the remaining charges against all defendants herein.

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14. In addition to the action by the State Bar, there is a pending proceeding seeking removal of the District Attorney from office pursuant to NCGS 7A-66; such proceeding has been held in abeyance pending the trial before the Disciplinary Hearing Commission.

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15. Though the criminal charges in these cases have been dismissed, the Court, nevertheless, retains the jurisdiction and duty to act upon pending or potential:

(a) Matters related to requests for expungement;

(b) Matters related to interpretation and enforcement of protective orders;

(c) Matters related to sealed records;

(d) Matters related to applicable investigative and administrative orders;

(e) Matters related to disposition of evidence;

(f) Matters related to disciplinary actions involving attorneys before the Court;
and

(g) All other matters within the express, implied, statutory, and inherent authority of the Court.

Nothing stated herein shall be interpreted or construed in any way so as to be considered inconsistent with or in limitation of the authority of The North Carolina State Bar, or the Senior Resident Superior Court Judge of Durham County or his designee under NCGS 7A-66.

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Dated: 4 June 2007

W. Osmond Smith, III Judge Presiding