The City of Durham has filed its final brief in its mid-case appeal to the 4th Circuit. I have analyzed the previous filings of the city and the falsely accused players; and the city’s appeal adds little to the exchange. The city’s attorneys—who according to the AP have already charged Durham more than $5 million for their services—continued to maintain that, when all was said and done, the city and its employees handled Crystal Mangum’s charges properly.
To reiterate, here is how Judge Beaty has responded to the Durham argument:
Defendants in this case essentially contend that this Court should take the most restrictive view of the applicable doctrines and should conclude that no provision of the Constitution has been violated, and that no redressable claim can be stated, when government officials intentionally fabricate evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause.
Some of the city’s old favorites are back. The brief, for instance, feigns ignorance at Mike Nifong’s former title (which was, since the city's multi-million dollar attorneys appear to be unaware of it, District Attorney of Durham County). Instead, the city’s attorneys repeatedly term him “State Prosecutor” Nifong, as if his office instead was under the supervision of AG Roy Cooper. Durham’s lawyers also ignore Nifong’s role in supervising the police investigation. The brief also repeats the conventional Durham argument about the grand jury indictment all but requiring that the civil suit against the city be thrown out, regardless of the myriad instances of misconduct committed by DPD officers that had nothing to do with two officers' grand jury testimony.
The city attorneys do, however, employ three new arguments, though two don’t help them all that much. Responding to the falsely accused players’ attacks on the procedurally fraudulent “pick-any-three” photo array, the Durham brief maintains that “the only way that the arrays could become misleading at all would be if the prosecutor presented them to the grand jury without ensuring that the members fully understood the inherent limitations of the identification procedure used [emphasis added].”
But there’s absolutely no evidence that Nifong did present the photo array in this manner, and certainly nothing in Gottlieb’s description of his grand jury testimony suggests that Nifong acted to ensure that the grand jury “members fully understood the inherent limitations of the identification procedure used.” What evidence does the city’s brief present in this regard? “The officers ensured that the entire procedure was videotaped so that its inculpatory and exculpatory aspects could receive a full and fair vetting after the fact.” The brief makes no claim that the tape was presented to the grand jury, or that Nifong, Gottlieb, or Himan explained the ID process violated Durham’s lineup procedures. Therefore, by the city’s own argument, agents of the city (Gottlieb and/or Himan) deliberately presented “misleading” testimony to the grand jury. Why the city would have bothered to make such an admission is unclear.
Second, the Durham attorneys aggressively attempt to vindicate the performance of then-Cpl. David Addison, who functioned (according to press reports) as police spokesperson when the case first broke. According to the brief, the plaintiffs’ “allegations plausibly suggest only that Addison described the case to the public consistently with the way it was described to him by other officers.” In other words: Addison shouldn’t be legally vulnerable for having made false, malicious statements, because he was relying on false, malicious material provided to him by other police officers.
This argument, which reflects the case’s more general “Blame-Another-Defendant” strategy, at the very least would imply that discovery should continue forward, to determine which Durham employees fed the spokesperson this false and malicious material, which he then unthinkingly parroted to the local, state, and national media. Yet the Durham attorneys cite this version of events as an argument for why the case should be immediately terminated before any discovery occurs.
Finally, the city attorneys take direct aim at Beaty, by dismissing the claim that Americans possess a constitutional right not to be framed for a crime by government agents. Such an “argument carries no water,” according to the Durham attorneys, because it is excessively broad. Or, in Judge Beaty’s words, according to Durham, the Constitution does not give the average American a right against “government officials intentionally fabricat[ing] evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause.”
A procedural reminder: this appeal, which Judge Beaty granted despite the only on-point precedent coming from the Middle District of Alabama, involves the City’s attempt to have the case dismissed before any discovery occurs.
One reason, perhaps, for Durham’s aggressive attempt to overturn Judge Beaty’s decision came last week, when the Supreme Court considered a grand jury immunity case, Rehberg v. Paulk. The question posed by the Georgia case: “Whether a government official who acts as a complaining witness by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages.” The case had quite a few similarities with events in Durham—the allegation was that a prosecutor’s investigator conspired with the prosecutor to frame an innocent defendant—though it had one critical distinction from the lacrosse case: the prosecutor in Rehberg did not appear to have formally served as the supervisor of the police investigation, as Nifong did.
Based on their general records (and the first two’s performance in the oral arguments), it seems extraordinarily unlikely that Justices Roberts, Alito, and Thomas would rule against the Georgia authorities. But the other six justices engaged in a wide-ranging and quite interesting discussion—asking challenging questions of both sides—of whether the immunity for grand jury testimony is proper. It’s dangerous to make any predictions based on oral arguments, but the Court’s four more liberal members, along with Justice Scalia, didn’t reject the plaintiff’s arguments out of hand.
In questioning the investigator’s attorney, Scalia, for instance, maintained that as the current structure (immunity for any behavior that’s testified about before the grand jury) perversely seems to invite a police officer to “get himself off the hook” is to “testify,” since “his testimony bathes him clean.” Justices Kagan and Ginsburg seemed particularly skeptical about the concept of letting an appearance before the grand jury provide a catch-all shield to guard against a civil lawsuit.
At Scotusblog, Timothy Coates concluded the following: “The Court’s questions indicate that this case may turn less on the niceties of the common law than the realities of common practice in the criminal courts. If the reality is that grand jury witnesses invariably engage in non-testimonial conduct prior to the proceeding itself –meeting with prosecutors, gathering evidence – that might spawn a malicious prosecution suit in which the subsequent testimony is admitted as evidence of malice, there seems to be little point in granting absolute immunity for such testimony, since erosion of grand jury secrecy and entanglement in litigation would occur in any event. On the other hand, if the Court concludes that potential liability for grand jury testimony may impair the day-to-day functioning of grand juries, and that there are practical differences between grand juries and warrant proceedings, then it could extend Briscoe’s rule of absolute immunity.”
One prosecutor who must thank her lucky stars about the concept of prosecutorial immunity is Nifong’s successor in position and ethics, Tracey Cline. The N&O reports that the attorney for David Yearwood, one of the defendants profiled in the paper’s “Twisted Truth” series, filed an appeal claiming that Cline withheld considerable exculpatory evidence in Yearwood’s case: "At worst, District Attorney Cline's conduct was deliberate and intentional. At best, District Attorney Cline's conduct was negligent and incompetent. Either way, it is her misconduct that brings us to the situation we face today." The attorney, Heather Rattelade, made clear toward which option she leaned, charging that Cline "engaged in deliberate and deceitful tactics to obtain a conviction at all costs."
As has been her wont, Cline responded to the filing not on the substance but by making wild charges—in this instance, by insinuating that either Rattelade or Durham judge Orlando Hudson(!) have committed a breach of legal ethics by leaking material to the N&O. She offered, of course, no evidence to corroborate her claim.
In the last three contested races for DA in Durham (2006 primary, 2006 general election, 2008 primary), a significant plurality of Durham voters demonstrated at best indifference to and at worst outright support for unethical behavior in the county’s chief prosecutor. So it seems unlikely that Cline will be removed at the ballot box. Will the State Bar act again?
The Herald-Sun brought news of a Durham resident who has, seemingly for the first time, alleged mistreatment from the Durham DA’s office. And who is the figure? Durham Committee for the Affairs of Black People-endorsed Solomon Burnette—the man who spent time in jail for robbing two Duke students, before distinguishing himself for penning an editorial that seemed to advocate vigilante justice against innocent white members of the Durham community.
In an interview with the H-S, Burnette claimed that he was innocent of a crime to which he pled no contest. The H-S didn’t provide a quote from either the DA’s office or from Burnette’s victims about his after-the-fact change of heart. The paper did, however, reveal that the endorsee had a criminal record that extended beyond robbery: “He also has been convicted of possession of marijuana, possession of stolen goods, operating a vehicle without a license, and common law forgery."
Defending his vigilante column—for which even the NCCU paper chose to apologize—Burnette wildly claimed, “Somebody had to say something . . . I think the article forced people to think in terms that we’re not used to thinking in.” This substance-free defense of indefensible statements recalls the non-defense defenses of their statement that came from the Group of 88.
Speaking of the Group of 88, one of their lower-profile figures made an appearance last week, in a high-profile case. Laura Edwards was one of 23 historians to sign an amicus brief in Gill v. OPM, a court case challenging Section 3 of DOMA. (Section 3 requires the federal government to treat all married same-sex couples as legal strangers under federal law.) To my knowledge, this filing was the first joint document on a legal matter that Edwards had signed since the Group statement in 2006, in which she and her fellow signatories asserted that something “happened” to false accuser Crystal Mangum; and the clarifying statement of 2007, in which she and her fellow signatories announced that they “appreciate[d] the efforts of those who used the attention the incident generated to raise issues of discrimination and violence,” the stated purpose of the potbangers’ “castrate” protest.
As a major civil rights challenge, Gill is the sort of case in which historians could make a contribution, partly because claims made by advocates of the law are historically shaky, partly because DOMA was all but historically unprecedented (the Supreme Court has sometimes taken a more skeptical view of laws that target minority groups and lack historical precedent). But it was remarkable to see a Group of 88 member—someone who proudly thumbed her nose at basic principles of due process in 2006 and 2007—boldly embracing due process in 2011. It would be a little like a longtime ACLU activist signing onto a brief defending Guantánamo Bay.
A charitable person might suggest that Prof. Edwards, having so massively misjudged the lacrosse case, has become unusually sensitive in its aftermath to violations of due process. A more cynical observer might conclude that Prof. Edwards’ concern with due process depends solely on the race, gender, or sexual orientation of the affected parties.
Finally, for the latest high-profile case involving college athletics—the arrest of a former Penn State defensive coordinator for widespread sexual abuse of young boys, and the arrest of the university’s AD for allegedly lying to the grand jury investigating the affair—Dan Wetzel’s column expresses my sentiments about the university's conduct more effectively than I could.
But one comment on media coverage of the case. In Sunday’s New York Times, Mark Viera (whose sports reporting I enjoy) wrote the following, regarding the record of Penn State football coach Joe Paterno: “A grand jury said that when Mr. Paterno learned of one allegation of abuse in 2002, he immediately reported it to Mr. Curley. The grand jury did not implicate Mr. Paterno in any wrongdoing, though it was unclear if he ever followed up on his initial conversation with Mr. Curley or tried to alert the authorities himself.
In fact, the grand jury report said something quite different. Here’s the relevant excerpt:
“Immediately,” it would seem to me, means immediately—not the next day. And given that the grand jury report—a report that lays out exactly who reported what, and when, to authorities—makes no mention of Paterno ever reporting the charges to authorities, saying that it’s “unclear” whether Paterno “tried to alert the authorities himself” strikes me as an unusually charitable interpretation of events.
In the lacrosse case, the Times failed because of bias—its editors and chief case reporter, Duff Wilson, embraced a narrative that implied it was the paper’s job to bend over backwards to prop up Nifong’s case. But the paper also failed because sports reporters too often are not sufficiently up to speed about basic legal procedure.
[Update, Monday, 11.23am: In today's Times, Viera has a follow-up story, containing a damning quote from the law school dean emeritus of Duquesne on Paterno's failed moral obligations in the case. The article no longer claims that Paterno immediately reported the allegations to his superiors. There also is no indication that PSU president Graham Spanier plans to resign as a result of the scandal. It seems hard to imagine he could stay on--but, then again, Richard Brodhead is still president of Duke.]