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Are Lawyers Trying the Duke Rape Case in Public?

By Richard Willing, USA TODAY


The weapons: strategic leaks of e-mails, photos, audiotapes, bank records and other materials aimed at casting either Duke lacrosse players or their alleged victim in an unfavorable light.

"They're trying their case in public," says John Wesley Hall, a Little Rock defense attorney and author of a book on lawyers' professional responsibility. "In an ordinary run-of-the-mill case, you'd never hear of it ... but (in the Duke case), it's a question of fighting fire with fire."

On March 14, a 27-year-old dancer told Durham, N.C., police she was raped by three men after performing at a party in a house rented by lacrosse team members. Three weeks later, authorities released an e-mail written hours after the party by a lacrosse player, not one who was eventually charged, threatening to kill and skin an exotic dancer.

On April 9, attorney Bill Thomas responded, telling reporters that photos taken at the party show the dancer had bruises on her face and body before the attack allegedly took place. A day later, defense lawyers announced that DNA tests had not matched any lacrosse players to the alleged rape.

On Tuesday, after two team members were charged with rape and kidnapping, lawyers showed reporters taxi cab and automated teller receipts and other records that suggested one of the two indicted men had left the party by the time the alleged attack took place.

The pretrial comments, especially those of defense lawyers, strike veteran prosecutor Joshua Marquis as "way, way beyond the limits of what's fair."

"It's reprehensible (and) clearly intended to convince any prospective juror that the (alleged) victim isn't being truthful," says Marquis, prosecutor in Clatsop County, Ore., and a vice president of the National District Attorneys Association. "There are rules governing this kind of thing in every state, but unless you enforce them, this is what you get."

Defense lawyers, perhaps unsurprisingly, don't see things that way.

Lawyers have an "absolute duty" to defend their clients, inside the courtroom and beyond, says Dominic Gentile, a criminal defense attorney in Las Vegas. The damage an indictment can do to a reputation, even if an accused person is acquitted, is "huge and enduring," Gentile says.



"You tell your client, 'Don't say anything because anything you say will be twisted and used against you,' " Gentile says. "And they'll say, 'Look at all the terrible things the prosecutor is saying. Can't YOU at least say something?' "



The answer, says legal ethics professor James Cohen of Fordham University Law School, is "yes - up to a point." State and federal courts have rules, most based on American Bar Association guidelines, that restrict lawyers in criminal and civil cases from making out-of-court statements that are likely to prejudice the outcome of a court proceeding.



Prosecutors and defense lawyers, in North Carolina and elsewhere, generally are restricted to information contained in public records such as indictments. Lawyers also have what defense attorneys such as Gentile call a "right of reply" - permission to make statements that offset bad publicity generated by the other side.



The rules, which can be enforced by sanctions from a presiding judge or a bar association, are designed to prevent pretrial publicity that could influence a potential juror, Cohen says.



Gentile knows how that works. In 1988, while defending a man accused of stealing drugs and money from a police storage unit, Gentile held a news conference to suggest the evidence pointed to a policeman, whom he named, as the thief.



Gentile's client was acquitted, but the Nevada state bar sanctioned him for naming the cop. Gentile's appeal went to the U.S. Supreme Court, which ruled in 1991 that state bar associations may impose rules that restrict lawyers' speech. Gentile's sanction was overturned when the justices found that the Nevada rule was too vague.



Justice Anthony Kennedy wrote that Gentile's news conference was designed to offset "repeated press reports" that suggested the police officer had passed a polygraph and was not a suspect. The decision, Marquis says, emboldened defense lawyers to adopt "egregious methods" to generate pretrial publicity.



In October 2003, Pamela Mackey, a lawyer for rape suspect Kobe Bryant, mentioned the name of Bryant's accuser six times during a pretrial hearing in violation of a judge's order. Each time, Marquis notes, Mackey called her mistake an "accident."



The disclosure, and the unwanted attention that followed it, led the woman to drop charges.