Pretend You Are the Duke Lacrosse Case Judge
Correction/Clarification: The first paragraph of this blog post incorrectly reports that Durham County Superior Court Judge Kenneth Titus told lawyers "several months ago" to comply with their ethical obligations not to talk publicly about the case in a manner designed to influence potential jurors. He didn't, having only recently been appointed to preside over the case in place of Durham County Superior Court Judge Ronald L. Stephens.
The problem was caused by wire reports that indicated that Judge Titus, in July, reminded attorneys of their ethical obligations to gag themselves. He apparently reminded them in a figurative sense, and not a literal one, and it's a distinction I should have caught. I am sorry for the error and will work hard not to let it happen again (or, at least, since we all make mistakes, not to let them make it onto the site). I appreciate the effort of those of you who took the time to point out the mistake.
Your name is Kenneth C. Titus and you are a Durham (N.C.) County Judge. You are currently presiding over the Duke lacrosse rape case, and you no doubt feel like you've had the whole world dumped onto your lap. Several months ago, you gently told the lawyers in the case to keep their mouths shut and comply with the state's gag rule, 3.6 in the Rule Book, which states in part: "(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."
You said this to the attorneys and then you watched them go off into media orbit, the defense attorneys especially, spinning their version of events in order to sway public opinion and perhaps sow the seeds of reasonable doubt into the minds of potential jurors. So on Monday, at a hearing in the case, you a little more formally and a little more forcefully reiterate your interest in having the attorneys shut up outside of court. And what, then, do you hear from the attorneys? This.
"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?
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