On July 17, 2006, in what is still supposed to be the land of the free and the home of the brave, a Durham County, North Carolina Superior Court judge (Kenneth C. Titus) issued a sua sponte order in the Duke rape hoax case. (That case already won a primary for his fellow Democrat, Durham County District Attorney Michael B. Nifong, and--surprise!--the two of them will be on the ballot together in November on the Democrat line.)
"Sua sponte" is Latin for spontaneously, meaning on the court's initiative instead of at the instance of a party to a case (or the National Association for the Advancement of Colored People, which had expressed interest in gagging the defense).
On May 24, 2006, Paul Bonner reported in The Herald-Sun, a Durham newspaper:
"DURHAM — A lawyer with the state NAACP said the civil rights organization intends to seek a gag order in the Duke lacrosse case, and a journalist who participated in a forum with him on Wednesday said media coverage of the alleged rape may deprive the alleged victim of her legal rights to a fair trial.
"Al McSurely, an attorney who chairs the Legal Redress Committee for the state National Association for the Advancement of Colored People, said he generally respects the defense attorneys in the case as colleagues. But they are violating the State Bar’s rules of professional conduct that discourage comments outside court that are likely to prejudice a case, he said.
"The NAACP will try to intervene in the case to file a 'quiet zone/let’s let justice work' motion. That is otherwise known as a gag order, he acknowledged, although he said he doesn’t like that term."
Mr. Bonner also reported in the same article:
"Cash Michaels, a journalist with The Carolinian newspaper of Raleigh, said, to applause, that lawyers for the three lacrosse players charged in the case 'are playing the media like a banjo.'
"Leaks of case information intended to impugn the alleged victim’s credibility, and resulting news coverage and analysis, cloud her right to have the allegations tried in court, Michaels said.
"'We are seeing powerful forces trying to remove that right from her,' he said, and questions about the accuser — an exotic dancer — are amplified by the media."
Reality: The Duke Three are being persecuted, and the longer the pretense that the persecution is a legitimate prosecution is maintained, the worse it is.
Judge Titus's order may please the NAACP and Durham County Democrat Party chairman Floyd McKissick, Jr., but it a judicial abomination that people who support the Bill of Rights in general and the First Amendment freedoms of speech and press in particular should demand be rectified immediately.
Legal ethics is not Mr. McKissick's strong suit. See "Floyd McKissick Jr. disciplined by N.C. Bar, an Indy, the Independent Weekly, an article by Jennifer Strom dated March 17, 2004:
"Durham attorney and former city council member Floyd McKissick Jr. has been disciplined by the N.C. State Bar for professional misconduct involving a conflict of interest.
"McKissick received a formal reprimand from bar's grievance committee late last year, which the bar recently released to the public. The reprimand is essentially a slap on the wrist from the organization that regulates North Carolina attorneys; his law license is not endangered.
"The bar found that McKissick, a civil litigator who served on the council from 1993 to 2001, improperly represented both sides in a 2000 dispute involving the estate decisions of an elderly Durham man, Thomas Griswell. The conflict between the man and his younger caretaker spawned a civil case, as well as criminal charges of elder abuse against the caretaker."
The article further stated:
"'Floyd McKissick was a danger to elderly people who trusted him, who relied on him to protect their interests,' says Beverly Hill, who lives in Raleigh. Hill believes that 'a huge conflict of interest' led McKissick to help her uncle's caretaker get control of his assets, taking advantage of his advanced age, poor health and grief over his wife's death. 'My uncle was very exposed.'
"Court records show that Griswell signed over the deed to his East Alton Street house and all legal power over his personal finances and other affairs to caretaker Lily Richardson, whom Griswell and his wife had considered one of four unrelated 'foster children' they had supported for many years. The legal transactions took place in then-councilman McKissick's office in 1999, the day after Griswell's wife of 63 years had died. At the time, McKissick legally represented Griswell.
"A couple of months later, when Griswell realized he'd lost his house and given away power over his personal affairs, he hired another attorney to help him rescind the agreement McKissick had arranged for him with Richardson. McKissick later represented Richardson in her attempts to keep the agreement in place, according to court records.
"Questioned about the conflict of interest, McKissick is quick to assert that the bar's ruling 'is not newsworthy.'"
Chairman McKissick is staunchly behind Mr. Nifong, as the following excerpt from a July 4, 2006 article in The News & Observer illustrates:
"Durham County Democratic Party Chairman Floyd McKissick Jr. said the party will not challenge Cheek's petition drive. Instead, party officials said they will wait for Ashe to finish verifying Cheek's signatures, then decide how best to support Nifong should Cheek enter the race.
"'It's premature until we really know whether we've got an issue to deal with,' McKissick said. 'Durham is one of those communities where, politically, it's a little bit unconventional in the way things operate sometimes.'"
It's frightening the way things operate in Durham!
Maybe Duke University could relocate!
For whatever reason or reasons, the media did not appreciate and/or acknowledge the significance of the odious order. Perhaps the defense lawyers for members of the 2006 Duke University Men's Lacrosse Team thought it best to quietly ask Judge Titus to modify it, instead of to hold a press conference and declare that Judge Titus appeared to be intimidating the Duke Three and their fellow lacrosse team members to be quiet, lest they be held in contempt of court or disqualified as witnesses. (There ARE inherent conflict problems when local lawyers involved in other cases and expecting to continue to practice in the locality long after one particular case is over represent out-of-staters, especially when the locality is Durham, North Carolina and the the out-of-staters are white Yankee Duke lacrosse players from wealthy families accused of kidnapping, rape and sexual assault by a local black female whose criminal, medical and employment histories do not phase her knee-jerk supporters.)
Pity the Duke Three defense lawyers. They were ever so temperate in their public comments are the July 17, 2006 order was issued, and WashingtonPost.com's Andrew Cohen was calling for Judge Ttitus to come down hard on them for doing THAT much:
"'The rules of professional responsibility require us to be very careful of what we say,' defense attorney Wade Smith told the Associated Press Monday. 'We'll do that. We've been doing that. And we'll continue to do that.' Defense attorney Joseph Cheshire, meanwhile, went one step further. He told the AP that the gag order: 'would not have precluded us from doing a single thing that we have done so far.' After months and months of defense team press conferences, and leaks to the media, and an entire concerted campaign to do precisely what Rule 3.6 prohibits, the lawyers say, presumably without shame, that they have been in compliance with the rule the whole time. So if you are Judge Titus what do you do?
"If I'm Judge Titus I hit the roof. I call in the lawyers, without the public and the media present, and I read them the riot act. Their conduct has been a direct affront to the judge's authority, and the rules, and their comments Monday even worse. I have seen plenty of judges, including some of the best federal judges in the country, control wayward attorneys in high-profile cases. And I have seen plenty of judges, including, famously, the judge in the O.J. Simpson case, let the attorneys run the show. History is kind to the former crop of judges. It is not to the latter. With many months to go before the trial, and with the attorneys showing no sign of relenting with their spin, it looks like Judge Titus has another decision to make. What would you do if you were him?"
The reality appears to be that Judge Titus is a judicial travesty helping an out-of-control prosecutor who created a presumption of guilt for the Duke Three by his own public remarks and doesn't want it rebutted and himself reviled for his egregious misconduct.
Frankly, it seems to me that Judge Titus's order, insofar as it seeks to muzzle witnesses in the Duke rape hoax case, is a great political favor to Mr. Nifong. It's hard to view it as an innocent judicial mistake, given the judge's experience and the way the order was drafted..
Herewith the entire July 17, 2006 order:
"FILED 06 JUL 17 PM 2:57 DURHAM COUNTY, C.S.C
"ORDER REQUIRING COMPLIANCE WITH RULE 3.6
OF THE
NORTH CAROLINA REVISED RULES OF PROFESSIONAL CONDUCT
"This criminal matter is before the Court upon the Court’s Motion, sua sponte, as a result of the extensive pre-trial publicity that the Court has observed in the new media. The District Attorney and counsel for the defendants were present in the Superior Court for Durham County for the Administrative Calendar of July 17, 2006.
"The Court takes judicial notice of and finds the following facts:
"1. The defendants stand indicted for first degree rape, first degree sexual offense, and first degree kidnapping.
"2. Since the time of the alleged incident and the arrest of the defendants soon thereafter, there has been extensive news media coverage of these events in the local, state, national, and international media. Coverage has included statements by the District Attorney, the defendants, their attorneys, potential witnesses, and other interested parties, including the release of information and disclosure of matters which may be offered as evidence in the case as well as matter which may not be admissible as evidence under current law.
"3. While the Court makes no findings with respect to the propriety of prior statements by the parties to this action, or the previous release of information; future disclosure of information otherwise prohibited by Rule 3.6 of the Revised Rules of Professional Conduct pertaining to trial publicity will have a substantial likelihood of materially prejudicing the trial of this matter, rendering it difficult to secure a panel of potential jurors free from partiality, bias and prejudice.
"4. In open Court, all counsel were informed that the provisions of Rule 3.6 of the North Carolina Revised Rules of Professional Conduct limiting trial publicity to specifically enumerated matters will be strictly enforced in order that both the defendants and the State will receive a fair and impartial trial. No less restrictive alternative is available.
"Based upon the forgoing findings of fact, the Court makes the following:
"CONCLUSIONS OF LAW
"1. This Court has jurisdiction over the person of the defendants and the subject matter in the above-entitled criminal matters.
"2. Counsel for the State and counsel for the defendants are duly bound by law to limit any communication with the news media to the subjects specifically permitted by Rule 3.6 of the North Carolina Revised Rules of Professional Conduct of the North Carolina State Bar, approved and adopted by Order of the Supreme Court of North Carolina.
"3. In order to provide for a fair trial, the following Order should be entered.
"IT IS, THEREFORE, ORDERED:
"1. Counsel for the State of North Carolina and counsel for the defendants, the employees and agents of the State, the employees and agents of counsel for the defendants, and any witnesses for the State or the defendants, are hereby restrained and enjoined from communicating with the news media concerning the above-entitled criminal action except as specifically permitted by the provisions of Rule 3.6 of the North Carolina Revised Rules of Professional Conduct.
"2. Counsel for the State and counsel for the defendants shall be responsible for communicating the content of this Order to their agents, employees, and witnesses.
"3. A violation of this Order shall subject the person or persons in violation thereof to the contempt powers of the Court.
"4. A copy of this Order shall be sent by the Clerk to counsel for the State and counsel for the defendants.
"This is the 17th day of July, 2006.
"Signed Kenneth C. Titus
Resident Superior Court Judge Presiding"
The most objectionable words: "any witnesses for...the defendants, are hereby restrained and enjoined from communicating with the news media concerning the above-entitled criminal action except as specifically permitted by the provisions of Rule 3.6 of the North Carolina Revised Rules of Professional Conduct."
So, if a member of the Duke Three communicates with the news media about the case and simply tells the truth, he can't be a witness in his own defense? He's committed a contempt of court? His bail can be revoked?
Rule 3.6 allows LAWYERS to say certain things, but none of the Duke Three is a lawyer and none of their teammates is a lawyer. Would Judge Titus rule that the limited speech allowed by Rule 3.6 is not available to any non-lawyer lacrosse player? If any of them talks to Sean Hannity about the case, will he be disqualified as witnesses and held in contempt if he comes to try to testify?
The Duke rape hoax reeks of politics at its worst. Unfortunately, it is not in the political interests of Judge Titus, North Carolina Governor Michael F. Easley or North Carolina Attorney General Roy A,. Cooper III to repudiate what there fellow white liberal Democrat dependent on a black bloc vote to keep his job (that would be Mr. Nifong, running in November) has done and plans to do in the case.
Call it North Carolina's own little Axis of Evil: Nifong, Titus, McKissick, Easley and Cooper.
Mr. Easley is the Governor of North Carolina. Born in 1950, he received a B.A. in political science from the University of North Carolina in 1972 and a J.D. from North Carolina Central University School of Law in 1975. He was north Carolina's Attorney General from 1992 until 2000, became Governor in 2001, was re-elected in 2004 with 52% of the vote, and appointed Michael Nifong Durham County, North Carolina District Attorney in 2005.
His contact information:
The address for all correspondence is:
Governor Michael F. Easley
Office of the Governor
20301 Mail Service Center
Raleigh, NC 27699-0301
Other options: faxing to (919)715-3175 or (919)733-2120,
e-mailing the Governor's Office or by calling the Governor's Office at:
1-800-662-7952 valid in North Carolina only
(919)733-4240, or (919)733-5811.
Mr. Cooper is the Attorney General of North Carolina. Born in 1957, he received his undergraduate and law degrees from the University of North Carolina at Chapel Hill in 1979 and 1982. He was elected to the North Carolina House of Representatives in 1986 and named to the North Carolina Senate in 1991. He became the Senate Majority Leader in 1997, was elected Attorney General in 2000, re-elected in 2004 and plans to seek re-election in 2008.
His mailing address: NC Attorney General's Office
9001 Mail Service Center
Raleigh, NC 27699-9001
Mr. Nifong is the Durham County District Attorney, by appointment. Born in 1950, he received an undergraduate degree from the University of North Carolina in 1971. He attended the University of North Carolina Law School, graduating in 1975 and being admitted to the North Carolina bar three years later. Unable to find other legal employment, he volunteered his services to the Durham County District Attorney's office in October 1978, became a paid employee in April 1979 and stayed on. Governor Easley appointed him Durham County District Attorney in April 2005.
His contact information: District Attorney, 14th Prosecutorial District
Durham County Judicial Building
201 East Main Street
Durham, North Carolina 17701
Telephone: 919-564-7100
Fax: 919-560-3220
District
Judge Kenneth C. Titus received his Juris Doctorate from the University of North Carolina at Chapel Hill. He was elected as a Superior Court Judge in November 2002. Prior to serving on the Superior Court bench, Judge Titus served as a District Court Judge and also served as Chief District Court Judge. Prior to serving on the bench, Judge Titus practiced law for several years in Durham.
His contact information: Courier Box: 172404
201 E. Main Street
6th Floor, Suite 636
Durham, North Carolina 27701
Telephone: 919-564-7230
May real justice be done to all!
