DA: Stop Duke Lacrosse Case Polling

2006/4/11 #924719: Mike Nifong headshot, as Durham County Assistant District Attorney, speaking at community forum to discuss rape allegations against members of the Duke lacrosse team, North Carolina, photo on black
The district attorney prosecuting three Duke lacrosse players accused of rape asked a judge Wednesday to put a stop to defense polling of Durham residents about the case.

District Attorney Mike Nifong made the request in a motion filed in Durham Superior Court, saying the polling could damage the chances of a fair trial in the case.

Lawyers for the three players responded by saying that the polling, which the defense conducted jointly and has already been completed, was legitimate and necessary in light of prejudicial public comments made about the case by Nifong.

"(The) polling was necessary to determine the extent and nature of that prejudice and other issues related to the defendants' jury trial rights," defense lawyers wrote in a response released to reporters within an hour of Nifong's filing. "The polling was scientifically conducted, limited to 300 interviews and terminated thereafter."

Lawyers on both sides in high-profile cases frequently use surveys, focus groups and consultants to fine-tune courtroom strategies and jury selection.

The Duke case stems from a March 13 incident at an off-campus house in which a woman told police she was sexually assaulted by three men in a bathroom after being hired to perform as a stripper at a lacrosse team party. A grand jury later indicted three players with rape, kidnapping and sexual offense; defense attorneys have strongly proclaimed their clients' innocence.

Nifong's motion included an affidavit by the district attorney's wife, Cy Gurney, who said she received a call on the evening of Sept. 11 in which a surveyor asked about attitudes in the community and the lacrosse case.

In her affidavit, Gurney said the person who questioned her about the case asked how likely she would be to believe a stripper who said she was raped and whether she believed Durham investigators properly conducted a lineup of suspects in the case.

"My overall impression was that the purpose of the survey was not to assess community attitudes about this case, but rather to bias or influence potential jurors toward a pro-defendant/anti-prosecution point of view," Gurney said in her affidavit.

The defense's response noted that the players' lawyers had previously told the court and Nifong that they would probably conduct polling on the case and that similar polling by defense lawyers has been approved by the state Supreme Court in the past.

Nifong's motion said the survey was conducted by Central Research Services Inc., a research firm with offices in New York. The company did not immediately respond to a telephone call Wednesday seeking comment.

A second motion filed Wednesday by Nifong asks the court to pay for a toxicology test for the drug Ecstasy that was done on a hair sample from the accuser.

In the motion, Nifong said he was told in April by a defense attorney representing an unindicted player that the accuser was on Ecstasy the night of the party, but that the accuser has said she never knowingly took the drug, also known as MDMA.

The motion did not disclose the results of the tests, which were conducted July 24 and faxed to Durham investigators two days later.