Thursday, September 21, 2006

Duke lacrosse: Two takes on Nifong's latest

Today both the Raleigh News & Observer and the Durham Herald Sun report concerning a phone survey of 300 Durhamites commissioned by attorneys for the three indicted Duke lacrosse players. Durham DA Mike Nifong is upset about the poll which he learned about from his wife, Cy Gurney. She was one of those polled.

There are major differences in the two papers’ reporting. Let's look at a few of them.

The H-S’s headlines :

Lacrosse defense survey questioned

Nifong says polling might taint jury pool
Now the N&O’s headlines :
Nifong assails phone survey

Duke lacrosse players’ lawyers say poll was to gauge prosecutor’s early public comments.
Right in the headlines the N&O tells readers defense attorneys say they polled to gauge the effects of Nifong’s early public comments. But the H-S says nothing about that and instead gives readers Nifong's spin that polling might taint the jury pool.

The N&O story reports on the attorneys' concern beginning in its second paragraph:
The defense lawyers said they were only trying to assess how Nifong himself might have influenced a potential jury with his early public comments on the case …
So when does the H-S mention the defense attorneys’ concern?

The H-S waits until its tenth paragraph before it reports:
[The] defense says it gave its approval for the survey, "as is their legal right and duty to protect the defendants' right to a fair trial before an impartial jury" as specified by the U.S. Constitution and North Carolina law.

"That impartiality could have been substantially threatened by extensive prejudicial comments" made by Nifong, the defense argues.”
A news story’s first few paragraphs are usually its most important ones. Look at each paper's first two paragraphs.

Editor Bob Ashley’s H-S starts off :
The prosecution is dialing up a new issue in the Duke lacrosse rape case.

Specifically, District Attorney Mike Nifong is questioning a survey -- admittedly approved by lacrosse rape suspects' defense attorneys -- which he said, if allowed to go unchecked, might wind up tainting the prospective jury pool for the case.
We’re moving right on to the N&O’s first two paragraphs, but keep in mind the H-S’s “admittedly approved by lacrosse rape suspects’ defense attorneys.” We’ll come back to that in a minute.

Here are the N&O’s first two grafs:
District Attorney Mike Nifong on Wednesday accused defense lawyers in the Duke University lacrosse rape case of using a telephone poll as a "thinly disguised" attempt to influence jurors.

The defense lawyers said they were only trying to assess how Nifong himself might have influenced a potential jury with his early public comments on the case, in which three men are accused of raping a woman hired to dance at a March lacrosse team party.
I don't need to highlight the differences, do I?

About that Ashley H-S report that defense attorney’s “admittedly approved” the polling. Here’s how the N&O reported on that:
In a motion prepared late Wednesday afternoon, attorneys for the three defendants asked a judge to deny Nifong and said they told him in August that they intended to conduct polling. The survey was scientific, the lawyers said, and limited to 300 interviews. (bold added)
Why didn't Editor Bob Ashley's paper tell readers the attorneys said they told Nifong about the polling in August? Why say instead the attorneys "admittedly approved" the poll?

The question answers itself, doesn't it? And the answer tells us a lot about Bob Ashley's H-S.

Most of the story both papers report is a matter of Nifong and his wife trying to make something out of nothing. Both papers should have mentioned that in cases where there’s been extensive pre-trial publicity, it's fairly common for defense attorney and sometime persecutors to poll prior to trial to determine community sentiment on critical issues.

I hope attorneys who read this post will comment and tell us more about that.

You’ll find the online H-S story here and the N&O’s here.

Others are commenting on Nifong's latest:

Liestoppers makes the very sensible point: "[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."

The Poet of the Piedmont, Joan Foster, has a wonderful offering that begins:
Hello, Mrs Nifong
New York on the line.
Well, how are you doing?
We hope... doing fine
You're going to love the poem's title.

KC Johnson wonders if the strain of prosecuting three clearly innocent people isn’t getting to Nifong. He identifies some Nifong behaviors that are strange even by “Justice in Durham” standards


Locomotive Breath said...

If they really polled 300 out of all of Durham, it's really odd that Nifong's wife was selected. Admittedly she uses a different last name so they could have made that mistake but the odds are really slim that she could have been picked at random. I'd like to see the Nifong household phone records to prove that there was an actual incoming call from NY that lasted an hour.

JWM said...


"I'd like to see the Nifong household phone records to prove that there was an actual incoming call from NY that lasted an hour."

Especially after she claims she told the interviewer she was the DA's wife.

You say you drive fast. I don't know about that. But when I "see" you, you're always in the "common sense" lane.


Anonymous said...

That struck me most of all. Of all the people that could have been called, someone placed a call to Nifong household. Since Nifong has about half a dozen supporters left in Durham anyway, it seems really unbelievable that this actually happened. Here's a conspiracy: Nifong knew about the survey, months ago of course, and has roped his wife into swearing that she was called about it. I'd be interested in knowing whether or not they were even the same questions. Imagine if a prankster called up the wife of the soon-to-be-ex-DA and pretended to be a person conducting this survey.

Anonymous said...

My take is that the defense had the research company deliberately call Nifong's wife because they know how to "push his buttons."

Anonymous said...

Give me a break, we're supposed to believe this intelligent woman:

a) would accept a call from a surveyor calling from New York of all places,

b) had an hour to invest in this endeavor, and

c) took scrupulous notes of the conversation.

Why of course, this is Durham, the home of paranormal research. One of the few places on earth where residents, many days and even months later can recall and recount in scrupulous written detail (33 pages, single spaced) events for which they never bothered to take notes.

Anonymous said...

Am I the only one that thinks it significant that the defense response motion says that not only did the defense notify Nifong of this back in August, but that they also notified the COURT. Presumably, they either 1) told the judge and Nifong of the plan in a meeting, or 2) copied Nifong and the Court on a letter to this effect.

What more could the defense have done to be beyond reproach on this? Allow Nifong to approve the questions for their poll?

Looks to me like N&O and Derm H-S both omitted the part about notifying the court.

- jc

Anonymous said...

I think that Nifong might actually be lying about his wife having received a call. Basically the survey size was 300. Nifong already knew that the survey was going to be conducted. He's just putting his wife's quotes in there to show that someone could be prejudiced.

What he is REALLY AFTER, however, is the LIST OF QUESTIONS and probably the poll results as well. This poll is going to be used to argue for a change of venue. It's why he wants his hands on it now.

Anonymous said...

another reason his wife is lying: she claims, apparently, that the survey lasted for an HOUR. No polls take that long because no one will listen/respond for that long. Nifong is trying to say there was push-polling but that's ridiculous. He's saying, in effect, that the defence paid for 300 HOURS of polling on 300 PEOPLE. It doesn't happen. The questions they asked would have taken at most 10 minutes.

He's a pretty sick individual. He seems capable of responding to people in New Jersey via email but won't produce the durham access papers or get his act together and get the case moving because he's too busy. Or something.

More like the elections are coming up and he thinks he really is going to loose to a man who is on the ballot not to take the DA position but to let Easley oust Nifong.

Fun times.

James said...

Okay, I'm the anonymous poster of the prior two comments. I checked up on Durham population stats.

Here are the numbers for the >21 year old category:
133,152 individuals

If we want to be a bit more generous well know Nifong is still full of it but anyway assume the juries is 34-74 years old. That eliminates the younger jurors.

71,385 individuals

Now if you thought the jury would have only have people 45-74 you get:

42,311 individuals

Anyway you look at it I take her story as a LIE. There is NO WAY that a pollster would speak to her for an hour or would continue talking when she identified herself as the wife of the District Attorney. That contaminates the results of the poll.


If you were the district attorney would you be in the telephone book?

This assumes they aren't using a random generator that selects an area code and then has the rest of the digits churned out. The defence would have wanted the poll RESTRICTED to the age group they think the jury will be. That means they probably had demographic info etc. I doubt they are looking at wealthy white women.

Anyway I don't think she's being honest and I think he's committing another fraud on the court. Not surprising

NDLax84 said...

He needed something to divert Smith's focus on Friday. This is what we trial guys call "shotgun tactics." Shotgun tactics are used primarily upon juries, typically during closing argument, by counsel with weak cases. Much as a shotgun sprays its pellets over a wide swath -- 'Look! Over there! Look! All the way over here, too!' -- Nicefake will hold forth on this red herring and seek to draw Smith away from, um, more substantive matters. Particularly if conferences in DCSC follow the Order of Trial, i.e., with the Prosecution speaking first to address its interests to the Court.

By most accounts, however, Smith is a sharpie with no patience for slickster shenanigans. Defense counsel, of course, are walking in with scoped snipers rifles. He's going to be flayed.

DukeGradNCResident said...

So ND,

How many Motions do you think Smith will take on Friday? Generally speaking are the Motions handled first in first out?
Finally are you expecting any surprise calls in court at this stage of the process?

gc said...

I think the whole thing is odd. But I did go to and there is a Cy Gurney listed in the telephone directory. No address is listed, but her phone number was listed. I guess she was comfortable having the listing because they don't share the same last name.

Anonymous said...

It seems Ms. Gurney has now weighed in. I have always felt she was the force behind her little husband's (mis)handling of this case.

NDLax84 said...


I don't know that I can answer your questions. I don't know Smith. I was disappointed by his closing of the courtroom to media, but then read that defense counsel is cool with it. I think Smith will take at least four Motrins before the day is done. As for "expecting surprise calls," I wouldn't be shocked if Ms. Gurney gave me a ring to ask that I stop picking on her widdle boy.

Anonymous said...

Shouldn't Nifong's wife have been identified as the "alleged victim" of a phone survey?


straightarrow said...

I don't know AC, but it surely would be appropriate to think of her as that "poor unfortunate woman".