During proceedings in the Duke men's lacrosse case July 17, the judge reminded defense lawyers for three indicted players to keep public statements to a minimum.
"It is this court's responsibility to ensure that the defendants and the state proceed with the constitutionally guaranteed right to a fair trial by a jury free of partiality, bias or prejudice," said Superior Court Judge Kenneth Titus.
Defense lawyers acknowledged the judge's request but said they did not view Titus' reminder as an admonishment.
"This is not a gag order," said Joe Cheshire, attorney for David Evans, Trinity '06. "We have not violated Rule 3.6, we embrace it."
Rule 3.6 of the North Carolina Bar Association code of conduct prohibits spreading information that could prejudice a pool of possible jurors for a trial.
"A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if there is a reasonable likelihood that the statement will materially prejudice an adjudicative proceeding in the matter," the rule reads.
The rule exempts remarks made in response to statements from the district attorney or a third party, Cheshire said.
During the hearing, Kirk Osborn, attorney for junior Reade Seligmann, encouraged the judge to ask District Attorney Mike Nifong to establish when exactly he believes the rape occurred. Titus did not require Nifong to do so, noting that he did not have a chance to prepare a response but did not rule out asking for such a statement at the next hearing, which will be held the week of Aug. 21.
In a second hearing the same afternoon, lawyers for several uncharged members of the lacrosse team argued for the protection of their clients' private information.
Nifong has subpoenaed the players' home addresses and DukeCard records from the night of the alleged rape.
"There has to be some connection other than curiosity or 'I just want to see it' in order to have a court issue an order which would invade the privacy [of a player and his family]," said Thomas Manning, attorney for unindicted senior lacrosse player Fred Krom.
Nifong defended the subpoenas as a method of gathering information from other sources about the events of March 13.
"We're not trying to investigate them," Nifong said. "We want to be put in a position to call them, to tell the jury in Durham what they observed go on that night when this took place."
Titus said he will likely announce his ruling on the subpoenas Friday morning.
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