Lawyers, Experts Discuss Next Steps in Legal Process

The Chronicle Online
Duke University

As cameras continue to capture events surrounding the arrest of two Duke men’s lacrosse players, community members and legal experts are left wondering what will happen next.

Tuesday morning, sophomores Collin Finnerty and Reade Seligmann were arrested on charges of first degree forcible rape, first degree sexual offense and first degree kidnapping. The teammates will appear in court May 15.

District Attorney Mike Nifong said he plans to arrest a third suspect, but he must wait until the grand jury convenes again May 1-the day before the primary elections for district attorney.

Although some legal experts said the trial will likely start at least a year from now, they are concerned about the possibility of a tainted jury pool.

Experts cite extensive media coverage and community issues stirred up by gossip surrounding the case as factors that might contribute to a biased jury.

“High media attention in a case is more often something that leads defense attorneys to ask for a change of venue,” said Ronald Wright, law professor at Wake Forest University and former trial attorney with the Department of Justice.

The defense must prove that the prejudice against the defendants will prevent a fair trial from taking place, said Sara Sun Beale, Duke Law professor.

Experts also noted that sometimes simply looking at the media’s effect on a trial convinces the judge that there is sufficient need for granting a change of venue.

In other cases, attorneys can hire jury experts who have surveyed the community to testify that a trial will be fair only if it is moved.

“Changes of venue are very unusual,” Beale said. “The statutory procedure is to not move really far away, but out of ground-zero.”

Before a jury is selected, however, defendants must appear in court several times.

Finnerty’s first court appearance was Tuesday morning. He came before Superior Court Judge Ronald Stephens to present his initial response to criminal charges.

Defense attorney Kirk Osborn represented Seligmann, who was not present.

In a first appearance, defendants can request or waive a court-appointed attorney.

Judge Stephens said Seligmann must appear in court at some point to formally waive this right.

In the days leading up to May 15, there will be “a period of time when the parties are basically preparing for trial,” Beale said.

Beale added that before the arraignment, in order to urge the defendants to accept a plea bargain, the prosecutor could present information to the defendants with the suggestion that they are likely to be found guilty.

At the arraignment, the defendants will be informed of the charges against them and enter a plea of guilty or not guilty.

The prosecution must disclose all of its evidence at this time to the defense in a process called discovery. In addition, the defense may file any motions it deems appropriate.

After a number of appearances by the defendants, the court will select a jury-a process that involves several rounds of questioning.

First, the judge asks potential jurors questions about possible relationships with any attorneys, plaintiffs or defendants. Potential jurors who may have conflicts of interest or biased opinions are dismissed.

Judges sometimes allow both the defense and prosecution to exclude a certain number of potential jurors after questioning them. Wright said, if they choose, each side is also allowed to exclude jurors in another process.

If a judge accepts the defense attorneys’ motion for a change of venue, the trial would take place in a contiguous district or one contiguous to a contiguous district.

A judge could determine that moving the trial would excessively inconvenience witnesses, deciding instead to import jurors from contiguous districts.

Finnerty and Seligmann were both released from jail Tuesday morning after each posted pre-arranged cash bonds of $400,000.

A cash bond requires depositing the full amount with the court, in contrast to a secured bond, which is usually underwritten by a bail bondsman with fees as high as 15 percent of the total bond.

Normally a judge sets bail at a defendant’s first appearance in court. If the judge knows that the defendant already has a lawyer, he can prearrange the setting and posting of bail.