Monday, September 03, 2007

Charns Speaks Out

At John in Carolina, Durham attorney Alex Charns--among the first to home in on the extent of the DPD's misconduct--analyzed the city's legal vulnerabilities and reflected on what might have been.

He noted,

If DPD, for instance, had launched an Internal Affairs investigation of violations of its own procedures during the Apr 4 “no wrong choices” photo lineup with the accuser; and taken some steps to punish the officers involved, that would be evidence DPD and the city didn’t just stand by and do nothing when policies and procedures were violated.

The same would hold if city manager Patrick Baker had investigated, and there had been consequences for those who violated policies and procedures, as well as apologies to the students.

Instead of any of that, the city’s denied wrongdoing. By refusing to admit misconduct by some Durham officers and their supervisors, it’s put itself in just about the worst possible position it could be in today.

[The full interview is here.]

42 comments:

Anonymous said...

Yep, Charns has it pretty much right in terms of municipal liability. My question is whether anyone "on the ground" in Durham has any new info to pass along re: developments involving settlement negotiations b/w (and among) the DPD, City of Durham, and the Hoax victims (that is, the *real* victims)?

Mandelbrot's Chaos said...

My greatest hope is that the remaining 43 Duke lacrosse players make use of their chance to sue Duke University and Durham straight into bankruptcy. I would include Mike Nifong and others on that list, but I understand police officers aren't typically paid well, and Mikey isn't far from bankruptcy as it is. May their suffering be as eternal as the pain of their victims.

Anonymous said...

And while the Durham Police Department engaged in its multiple, obvious acts of civil injustice, the faculty at Duke University, the local press and media, and those who profess to care about civil liberties, such as the ACLU, turned a blind eye to this injustice that was occurring, right under their very noses.

Shame!

Anonymous said...

Hey, I thought you were supposed to be in Israel. *When* are you leaving?

Anonymous said...

The underlying theme . . . the constituent absence so to speak . . . is the fear that so many people have evidenced in the face of political correctnes, of political power, both real and imagined. It is a fear combined with greed and power, lust and reward; a fear without personal recognition or responsibility in so many ways and found out to be such that it just rests in the tobacco road leading to Durham like some unwormed and worn rabid dog drooling into the dust, unable or too tired to take any personal responsibility for its infected behavior . . . oh, Duke and Durham and its police and judicial system . . . oh, Lubiano . . . a Shakespearean play unclosed and is not ended . . . oh, for a dagger . . . or a horse to leave town . . . or to smoke the sweet drag of the dry, bright leaf of a new crop of tobacco.

Rich said...

There will be a sense of loss w/ a void once KC terminates D-i-W. I'd be interested to know if others feel the same, and how they plan to fill the void. REgards

One Spook said...

KC Posts at 2:15:

Quoting Durham attorney Alex Charns, who the JIC Blog states Charns "represents one of the lacrosse players who was not indicted" :

"If DPD, for instance, had launched an Internal Affairs investigation of violations of its own procedures during the Apr 4 “no wrong choices” photo lineup with the accuser; and taken some steps to punish the officers involved, that would be evidence DPD and the city didn’t just stand by and do nothing when policies and procedures were violated."

Maybe, but how does that diminish the liabillity of the officers for what they did do, regardless of what the DPD does afterword?

Perhaps I don't see the nuance, but if I'm a truck driver and injure someone while driving on the job and then my boss suspends me for a week, how does that limit my exposure for what I already did?

Isn't that a bit like closing the barn door after the horse gets out?

I'd like to see some other attorney besides Alex Charns who represents a potential plaintiff in a suit against the City Of Durham, weigh in on this one.

And, with all due respect, why would an attorney who represents a potential plantiff in a suit against the City of Durham be giving interviews on a Blog, regarding actions of a potential defendant?

On this subject, I had previously commented that the City of Durham is under no obligation to incriminate themselves, and if their legal advisors feel the continuing the activities of the Whichard Committee would do just that, then they have every right to suspend the committee's activities.

One Spook

Michael said...

This belongs in the other thread about the turning
points, since Professor Coleman is credited for
at least one of the turning points.

I'd also like to say one of the best comments about
Nifong came from Professor Coleman during the
that 60 Minutes special on the case:

Question to Prof Coleman: "What does that say about
Nifong's interest in justice?"

Prof Coleman's answer: "It says he's indifferent to justice"

Prof Coleman was always right on the money.

AF said...

Hey guys, don't forget the Whichard Committee. That is Durm's answer to all of its problems. Oh yeah, the insurance company put the skids on them didn't they? Why would we expect the Whitewash committee to admit any wrongdoing? Is anyone sure that they would recognize it if they saw it?

So what's next? It would be fantastic if the 43 would sue the pants off the college (in honor of the 88) and the DPD/DA's brothel. The remaining guys didn't sign anything and they were victims of FERPA violations as well as the falsely accused three. They need to take Boardhead to the cleaners as well as his lackies.
Congressman Jones, please get the Feds involved. You were the one voice of reason among the legislative group. CGM should not escape without repercussions. She should, at the very least, be committed for psychiatric evaluation. She's made this play twice. Do we have any reason to believe she won't do it again?????

Let's think about this.....

Anonymous said...

Charns may be wrong wrong as a rule of evidence. An IA investigation and subsequent punishment of officers would be a "subsequent remedial measure" and would be inadmissible by the Plaintiffs in federal court (where this would be held). Rule 407.

In addition, evidence that the city later took action would be inadmissible on behalf of the city as irrelevant.

Anonymous said...

The City of Durham is a disgrace at all levels. It is hard to imagine the depth of the collusion that has resulted. To be sure this is a landmark case. One hopes that when it is all over, that serious punishment is meted out for the officials who have been involved, both by way of incarceration and financial penalties. Early on Nifong made a comment to the effect that "they were F--ked." One can hope that that is going to be a self-fulfilling prophecy

One Spook said...

Anon at 5:44 PM ...

Thank you.

One Spook

Anonymous said...

To Anon @ 5:44,

You say: " An IA investigation and subsequent punishment of officers would be a 'subsequent remedial measure' and would be inadmissible by the Plaintiffs in federal court (where this would be held). Rule 407."

But wouldn't it be DPD/the city who would want to bring up an "IA investigation and etc., etc. ...?"

And they're not "the Plaintiffs."

Are you sure "evidence that the city later took action would be inadmissible on behalf of the city as irrelevant?"

Are you an attorney?

Anonymous said...

"An ounce of prevention is worth a pound of cure." If Durham had only stopped it and apologized when there was still time, Durham wouldn't be in the mess it's in now.

One Spook said...

Anon @ 3:35 PM writes:

The underlying theme . . . the constituent absence so to speak . . . is the fear that so many people have evidenced in the face of political correctnes, of political power, both real and imagined.
[snip]
oh, Duke and Durham and its police and judicial system . . . oh, Lubiano . . . a Shakespearean play unclosed and is not ended ...

Oh, please ...

Reasonable people are not in fear of PC rather, they are disgusted by it and the shameful injustices those who view the world through this prisim of race, class, and gender can cause.

Rather then offer ad hominem attacks shrouded in high school level prose, why don't you offer a defense of the Group of 88?

You've posted here several times in the same circular, indirect, cowardly fashion. Why aren't you able to post a clear, cogent defense of the PC crowd? What's the matter? Have the sanctions Duke placed on your Group of 88 got your tongue?

One Spook

Anonymous said...

Regarding subsequent remedial measures, there are legal considerations and practical considerations. IMO, the city could limit its exposure in a lawsuit for the wrongful acts of its employees if the city was not negligent in enabling the wrongful acts. if the DPD was acting in violation of procedures in a way that couldn't be anticipated by the city (i.e., there wasn't a known pattern of such behavior), and the city shows that it is taking steps to prevent it from happening again, it may at least limit its liability.

Of course, to the extent the city makes real change they could limit their liability in the future by avoiding future lawsuits.

On a more practical note, as sombody observed on a previous thread, injured parties don't sue, pissed injured parties sue.

In my view, the bad acts that happened in this case are already pretty well known thanks to people like KC and the defense attorneys. How much damage can they do by examining their procedures at this point? Its scary to think that Durham might find more culpable acts than what has already been publicly exposed.

-RD

Debrah said...

Good interview by John.

Perhaps the local media will be shamed into following up on this story.

Or, maybe not.

Anonymous said...

Anon at 6:36:

The City would not want to enter an IA investigation and punishment into evidence in the civil trial. The reason: the report and punishment would say in big bold letters on the first page "WE SCREWED UP." It would be very damning evidence against the city.

As I mentioned before, under Rule 408, the Plaintiffs (wrongly accused men) would not be able to introduce the subsequent remedial measure to show liability. The City may have the option to, but why would they. It would admit they screwed up and are liable.

In addition, any subsequent report would be irrelevant because it does not go to the "elements" of the cause of action of the Plaintiffs. Essentially, the Plaintiffs can say to the report and punishments, "so what?" The fact that the officers were punished does nothing to take the officers' actions out of the scope of employment or relieve the city of liability. The same actions occurred and the Plaintiffs suffered the same amount of damages regardless of whether the City did anything later to punish the officers who did it.

Debrah said...

But then again.....

...when I read this and think about all those long, drawn out months.....

.....why didn't someone--anyone, including these very attorneys and peripheral characters--speak up loudly when it would have been key strategically?

Why didn't they scream to high heavens?

I could not be an attorney anywhere in Durham and not have actively done something besides flap a pie hole on occasion.

Anonymous said...

JLS says....,

Concerning a topic from the prior thread. There were 88 endorsers of the ad and others signed on to the clarrifying statement. In fall 2006 Duke had:

1. Duke has 2,664 faculty members.

2. Duke has 1,667 tenure or tenure track faculty.

3. Duke's college of arts and sciences has 618 faculty members.

4. Duke's college of arts and sciences 487 tenure or tenure tack faculty.

Now there were the odd member of the medical or medical related colleges faculty who signed onto the ad, but the vast majority were from the college of arts and sciences. Some were certainly visiting professors and technically not tenure track faculty, but all of the various part time and associated faculty should not be added in.

So depending on the base you use upwards to 18% of the Duke college of arts and sciences signed on. Probably it is more like 25% of this faculty signed on between the two different statements. Also you might subtract out the economics faculty who signed an opposing statement.

Thus, I must disagree with the Duke faculty member on the prior thread. The 88+ are certainly representative of the Duke arts and sciences faculty. And more evidence is that they elected one of their number to an important I believe academic policy commimttee this year.

Anonymous said...

Re: 5:44's "Charns may be wrong wrong as a rule of evidence."

I don't think he was talking strictly about evidence. He probably was talking about the city eating a little crow, to appease the anger of the wronged. Maybe then they wouldn't sue in the first place, or at least wouldn't demand both arms and both legs.

Ken Duke
Durham

Debrah said...

This topic can be discussed until the end of time.

Does anyone seriously think that a place like Durham will ever change?

Or wishes to change?

Debrah said...

There's not that much of a leap from this banana republic spoof and the way Durham is run.

LOL!!!

The Durham Visitors Bureau should use this as a selling tool.

Anonymous said...

Spookey, you need to understand the whole process was run by the political correct crowd . . . there is no defense for the DukeGroup88. It is not about the truth anymore was followed by a statement about the faculty. You merely misread the posting of the individual's message . . . KC Jonson and William Anderson knew what this case was all about from the beginning. Read their blog or should I say re-read it. It is not about what some poor truck driver would do or have done to him . . . er, her, but the whole system rolled over, and it was much more than Mike Nifong's pension. You must be . . . dare I say it . . . an engineer . . . mechanical not civil.

LarryD said...

One Spook

"Maybe, but how does that diminish the liabillity of the officers for what they did do, regardless of what the DPD does afterword?

Perhaps I don't see the nuance, but if I'm a truck driver and injure someone while driving on the job and then my boss suspends me for a week, how does that limit my exposure for what I already did?
"

You misunderstand whose liability would be limited, to use your hypothetical example, suspending you would limit your bosses liability, not yours.

The City of Durham has failed to take any corrective action, thus their potential liability is at maximum.

Gary Packwood said...

CHQR Interview (The World Tonight)

KC nailed the interview and gave a near perfect demonstration of why you either manager your own interview or the interview will be managed for you.

Comprehensive answers reduce the number of questions and allow for the listener to lock in on what you are really trying to say.

Good job.
::
GP

JWM said...

larryd,

You told One Spook that "You misunderstand whose liability would be limited, to use your hypothetical example, suspending you would limit your bosses liability, not yours.

The City of Durham has failed to take any corrective action, thus their potential liability is at maximum."

Thank you.

You explained it very well.

John in Carolina

ITFTM said...

"There will be a sense of loss w/ a void once KC terminates D-i-W. I'd be interested to know if others feel the same, and how they plan to fill the void. REgards"

Well, I plan to keep maintaining and improving the lacrosse case wiki at http://scratchpad.wikia.com/wiki/Duke_lacrosse_case .

Debrah said...

TO Rich @ 3:41PM--

Just saw your post.

The void can't be filled. Like many, I have participated on political fora and similar things before, but Wonderland has been a true wonder.

It's been bitter for me sometimes...and also very sweet.

Many of us will find it hard to say goodbye to this place. I will probably listen to some sad songs and do the drama queen stuff for a while...then try to get back into an exercise regimen before all is lost! LOL!

Allow for dramatic and musical license when you listen to this song...not taking each and every word literally.....just the general feelings of the song. It was written by Joni Mitchell long ago and is done here by jazz artist Diana Krall--"A Case of You":

This is how I and many others feel.

I could drink a "KC" of you and still be on my feet.

:>)

Rob Breakenridge said...

I couldn't leave a comment on the relevant post, but we have the audio posted of our interview with you, if anyone is interested in hearing it:

http://www.am770chqr.com/station/blog_the_world_tonight.cfm?bid=16101

Thanks again.

Debrah said...

Can someone do a link?

KC Johnson said...

I redid the "on the schedule" post, adding a link.

Debrah said...

The interview covered a lot in such a short time.

KC talks the way he writes: Quick, clear, and to-the-point.

He was able to outline most of the scenario, and I think anyone not intricately familiar with the case in another part of the country now has the basic story.

Good.

Now: On to GMA!

Anonymous said...

I have spent most of the day thinking about the juxtaposition of these two photos:

"Castrate"

"Here comes that nigger"

having seen the latter for the first time today in the N&O ("Faces of '57: mean boys, lonely girl").

But nowadays, one can even be captured in video forever:

"Potbangers protest"

You would think people would start thinking before acting, but that doesn't seem to be happening....

bj

One Spook said...

John in Carolina (citing larryd) writes:

The City of Durham has failed to take any corrective action, thus their potential liability is at maximum."

Thank you.

You explained it very well.


No.

Ignore what I wrote and READ what others wrote. No matter how many "gee I'm so sorry" platitudes given and "sensitivity courses" the City might send their cops to, that is irrelavant.

Their liabillity remains for the acts they committed, and all the "corrective action" in the world is irrelevant.

Indeed, apologies and such might make the potential plaintiffs less "pissed" as others have commented, but it does not limit the liabillity of the potential defendants.

One Spook

mac said...

One Spook,
Well, looking at the Baker/Chalmers report, it seems that the city didn't do itself any favors, did it?

By signing onto the report, I suspect that Baker dragged the city deeper into the pit. I think the relevant word here is "negligence."

Ralph Phelan said...

"Perhaps I don't see the nuance, but if I'm a truck driver and injure someone while driving on the job and then my boss suspends me for a week, how does that limit my exposure for what I already did?"

"The fact that the officers were punished does nothing to take the officers' actions out of the scope of employment or relieve the city of liability."

I'm not a lawyer, but I don't believe employers are liable for criminal acts committed by employeees, as criminal acts are usually by definition "outside the scope of employment."
I'd think that if the officers who ran the lineup had been investigated and fired and/or charged with something the city could easily claim that what they did was outside the scope of their employment, potentially eliminating the city's own liability. Under normal circumstances,
Perhaps some lesser but meaningful discipline that clearly said "Running phony lineups is not what we're paying you to do." might also limit the city's liability.

Instead the city went out of its way to make it clear that management all the way up to the mayor was aware of and approved of the phony lineup, and therefore that the officers who ran it were acting within the scope of their employment.

JWM said...

To Mac at 8:20 and Ralph @ 8:40,


You're both on target.

Thanks for sharing with others.

John in Carolina

Anonymous said...

One Spook wrote: "Indeed, apologies and such might make the potential plaintiffs less "pissed" as others have commented, but it does not limit the liabillity of the potential defendants."

If you're talking about compensation for actual damages, you're correct. But you're forgetting about exemplary (punitive) damages, which are often the largest part of any tort award. (i.e., negligence) These will be low where the defendant has shown remorse and some attempt to mitigate the damage, but often go through the roof when there is a showing of bad faith and callousness towards the results.

This factor is what drives awards into the 10, 20, 30 million dollar range, and that could be what Durham is looking at when this plays out in court.

Anonymous said...

to the 5:44 poster who said: "Charns may be wrong wrong as a rule of evidence. An IA investigation and subsequent punishment of officers would be a "subsequent remedial measure" and would be inadmissible by the Plaintiffs in federal court (where this would be held). Rule 407."

The plaintiffs cannot use that evidence to infer guilt, but the DEFENDANTS can always use it in the damages portion of the trial to show that they attempted to mitigate damages, and that is the only contemplated use in this instance.

LarryD said...

To build upon mac, ralph, anon @ 10:14, and anon @ 10:24;

The City of Durham, by taking no corrective action, and by demonstrating bad faith and callousness, has laid itself open to severe punitive damages. Had the City investigated and disciplined (and I don't mean "sensitivity classes") DPD officers culpable in the frame-up, the City would have some defense to offer in the damages portion of the suit.

But instead of an Internal Affairs investigation, they created the Whichard Committee, which started giving off the odor of whitewash the minute we saw who who was likely to be on it.

M. Simon said...

Drug war misconduct by prosecutors.

A template for Nifong?