Saturday, January 09, 2010

Case Updates

A few updates in the civil suit.

First, and most significant, an out-of-court settlement was reached in the Pottawatamie case, a civil suit that resulted from massive prosecutorial misconduct, and about which I had blogged previously. As Radley Balko has argued, the Pottawattamie side of the case contended “that prosecutorial immunity gives government officials the right to coerce witnesses to lie, withhold evidence pointing to a suspect's innocence, and work with police to manufacture false evidence of guilt, then use that evidence to win false convictions that send two men to prison for 25 years.”

The two falsely imprisoned men received $12 million; the Iowa county didn’t admit wrongdoing, but the willingness to settle represented a reasonable reading of the Supreme Court tea leaves. Only Justices Alito and Roberts seemed openly sympathetic to the county’s side.

While the parties to the case could figure out which way the Court was likely to decide, Nifong attorney Jim Craven apparently thought that Pottawatamie would be his client’s ticket to freedom. Back to the drawing board.

The settlement is obviously a victory for the wrongly accused men, but probably a setback for justice, since the Supreme Court seemed inclined to place some minimal checks on prosecutorial misconduct. That said, as Volokh Conspiracy’s John Elwood pointed out, “While the settlement ends this case, this is not the last we’ve seen of this issue. Any other case which credibly presents the same issue will have an enhanced chance of being granted, because the Court has a demonstrated interest in the issue. The facts of Pottawattamie County were particularly sympathetic, which made it more cert-friendly than the run-of-the-mine case; but at this point, I think the Court is interested in the issue and won’t need outrageous facts to grant."

Who knows: perhaps the case in which the Court checks prosecutors will be the Duke civil suit. As egregious as the conduct of the Pottawattamie prosecutors was, even they didn’t personally direct the entire police investigation, as the disgraced ex-DA Nifong did.

Second, the Durham attorneys are justifying their fees by drawing “the Court’s attention” to two 4th Circuit cases in which suits against cities or city employees were dismissed. The attorneys’ filing didn’t bother to explain the relevance of either case to the Durham lawsuit, probably because the facts of both cases radically differ from that of the Duke case.

In Monroe v. City of Charlottesville, the city of Charlottesville requested (not required) DNA samples from young, black men in the area after a woman claimed she was raped by a young, black man. One of the subjects of the procedure, Larry Monroe (who voluntarily gave his DNA), sued. The district court dismissed the suit in large part because Monroe failed to state an actionable claim, and also because “Monroe had little interest in or knowledge and understanding of the case, and appeared to be merely lending his name to the suit.” Certainly even the Durham attorneys aren’t suggesting that the Duke plaintiffs have failed to state specific civil rights claims—or that Reade Seligmann, Collin Finnerty, and Dave Evans have “little interest in or knowledge and understanding of the case.”

In one respect, Monroe does have some relationship to the Duke case—but it helps the plaintiffs, not the city of Durham. Although most of his case was dismissed, including his claim that he was targeted because of his race, Monroe was “allowed to proceed on his individual claims of (1) an equal protection violation based on the City’s alleged failure to institute similar investigation methods when the assailant is described as white.”

It’s not too difficult to see the potential relevance of this finding to the Duke case. As of March 2006, Nifong’s only (slim) hope at a primary victory (and thereby keeping his job) was to maximize his performance among the black vote. Against a black candidate and a white challenger (Freda Black) who actually had ties to the local African-American community, this seemed like an impossible order—until the Duke case came along. Strong evidence exists that his (unethical) handling of the case—motivated, as the DHC inquiry found, by his political concerns—raised his support in the black community and paved the way to his narrow primary win, in both the primary and the general election.

Imagine if the races in the Duke case were reversed: would Nifong, the DA desperate for the black vote, have engaged in race-baiting public comments, withheld exculpatory DNA evidence, and ordered a rigged lineup to falsely bring charges against black defendants? It is inconceivable that he would have done so.

The facts of the second case cited by the Durham attorneys, Francis v. Giacomelli, are even further afield from the Duke case. Francis arose when the former Baltimore police commissioner, Kevin Clark, sued the city of Baltimore and former Baltimore mayor Martin O’Malley after O’Malley fired the commissioner. Both the district court and the 4th Circuit (correctly) held that O’Malley was entitled to qualified immunity.

Since the Durham attorneys don’t explain why they cited Francis, it’s difficult to guess why they thought the case was relevant, but presumably they believed that a finding of qualified immunity for O’Malley would somehow bolster their claim that various Durham police officials and ex-City Manager Patrick Baker deserve qualified immunity. Best of luck to them on that argument.

A reminder that I blog fairly regularly at Minding the Campus; and also at Cliopatria. Will be back at DIW when developments in the civil case warrant.


gnossos said...

Professor Johnson,

You're probably already aware of this. But, on the off chance you're not:

Another "interesting" Duke professor.

Anonymous said...

Maybe the US Court Systems are frozen by the cold in Carolina but life still stirs in Brooklyn. Thanks for the up-date. Is there a playbook for obfuscation and delay in the legal system? This case is moving as fast as a patent case.

Anonymous said...

The court rule permitting citation of cases decided after the close of briefing on motions does not allow the Durham lawyers to comment on the cases cited. That said, I agree with Professor Johnson's analysis that these decisions do not help the City very much.

Anonymous said...

Is Craven a Communist?

Anonymous said...

What a thrill it would be if the Duke case found its way to the Supreme Court. It seems a ripe issue for their consideration. Integrity of the justice system v. immunity for government entities and their employees, even in the cases of gross (some would argue criminal) abuse of office and misconduct. Hmmm. It's an important issue for the entire world.


Anonymous said...

By 2012 - Every Con Law text book will have the DUKE LAXS case in it and add to the legacy of Nifong and will further vindicate Reade, Dave and Colin - as they all should be. As bad as this case was, we can't forget there has been even worse conduct perpetrated by prosecutors. This case will be the case that will finally hold prosecutors to some standard of conduct.

Ex-prosecutor said...

This is the case of a [my life time]. I hope that Mr. Nifong and the Durham Pd [the taxpayers,unfortunately]get whacked.

silent_l said...

The Radley Balko article you link missed one of the disturbing consequences of the Pottawattamie argument. If the reasoning is made that any prosecutorial wrongdoing gets absolute immunity if the prosecutor goes to trial, that would give any prosecutor who has crossed an ethical line a direct incentive to continue to trial, regardless of whether he believes in the merits of the case. By that argument, once he makes it to trial, he gets a get-out-of-jail-free card, no matter what he did before. If that were the settled law of the land, can anyone imaging Nifong stepping aside before he took the case to trial?

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Tina Trent said...

"[C]laimed she was raped"? The rape you are dismissively calling a "claim" was part of a series of brutal, stranger, serial rapes connected and confirmed and convicted through DNA, including one resulting in horrific genital injuries to the victim and several others resulting in head injuries.

You reduce that to "claimed," implying that the rape victim might have been making up the charge.


I was once enthusiastic about this blog: political correctness and race-baiting have done great harm to the justice system, harm that falls heavily on real victims of sexual assault and millions of other crime victims. It's difficult to overstate the damage done to public safety and criminal procedure by political grandstanding, and you did a service documenting one notorious instance of it in an academic setting.

But now you're indulging in precisely the same type of uninformed, politicized presumptions you claim it is your mission to oppose.

There is the hothouse world of academic debate, and then there is the real world, where convicted child molesters still routinely receive a slap on the wrist despite minimum mandatory sentence laws; where violent serial rapists still stroll out of prison after having their sentences dramatically reduced, pled to nothing, "concurrentized," or overturned on technicalities; where a million bad rulings on rules of evidence make too many trials a mockery of the truth.

Your blog fails to acknowledge this reality. You claim to be examining the significance and adjudication of rape cases, but instead, you're doing precisely what you criticize in others: seeking out and uncritically repeating stories that reinforce the narrative you're seeking.

There are reward systems in academia for more than one type of bias. Being wrongly charged with rape is exceedingly rare. Even in the absurdly misrepresented (and statistically exaggerated) world of wrongful convictions, only two or three Innocence Project cases have hinged on a woman claiming to have been raped when she was not -- and this, over a span of, what? Forty years of convictions? Millions of rape investigations? Many millions of reported rapes? Thousands and thousands of eager law students, professors, and lawyers stomping around in the case files, trying to find women who lied?

Presuming a liar in every woman who reports being raped is no better than seeking a rapist in every white frat brother. In fact, it is simply no different.

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Anonymous said...

I hope this case exposes the abuses that go on daily in the courts. I am at the mercy of corrupt judges and corrupt prosecutors and it is such a nightmare to learn what a sham America is.

If anyone looks into case 8CA10541 in the los angeles criminal courts they will see some story. There are many similarities to the Duke case but the defendant/victim in this case has been illegally jailed and there were attempts to declare her incompetent when she was going to win at trial. It's some story and any investigative reporter would have a goldmine on his hands if they took a look.

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Jim in Greensboro said...

Big development: Mangum charged with arson and assault.

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