The Civil Suit

The last week or so has featured widespread local discussions about the prospect of a civil settlement between the falsely accused lacrosse players and the city of Durham. The AP reported that attorneys for the three players demanded a payment of $30 million—plus Durham’s enactment of meaningful criminal justice reforms. The attorneys have made it clear that there would be no deal if Durham were interested in a financial payoff alone.

The reaction from some quarters was predictable. The N&O’s Barry Saunders penned a race-baiting column falsely asserting that Reade Seligmann and Collin Finnerty had “hired themselves a stripper.” This false claim, and Saunders’ other taunts, only bolstered the falsely accused students’ case against Durham, by showing the continuing harm to their reputations—something Saunders might have wanted to consider before he wrote. And Saunders, hyper-sensitive to the slightest of perceived slights against African-Americans, appeared to be unconcerned with his own perceived slight against the religion of the falsely accused players.

But, of course, this is the same Barry Saunders who previously eviscerated media coverage of a gang-rape allegation—when the defendants were black NCCU students. Their accuser (whom Saunders mocked) didn’t show up for a probable cause hearing, prompting dismissal of charges. But the mere filing of charges, according to Saunders, caused long-term damage to the students’ reputation: “I saw the two dudes’ pictures in the paper. I’m not saying they looked guilty, but let’s face it. It’s hard to look innocent when your mug shot is splashed on television or in the paper in connection with some horrific story.” (To remind Saunders, the mugshots of Seligmann and Finnerty were “splashed”—over and over and over again—on national television and on the cover of Newsweek.)

Also attacking the proposed settlement is NCCU law professor Irving Joyner, who opined, “I don’t think the alleged harm, if it was caused by the city, would rise to that level. It’s the difference between helping the needy and helping the greedy.”

But, of course, this is the same Irving Joyner who spent months publicly asserting that Mike Nifong had done nothing wrong—indeed, who in late December 2006 even ridiculously claimed that Nifong’s decision to drop the rape charges would help the ex-DA’s case and that the State Bar would not move for disbarment. Since Joyner seemed to have no problem with Nifong’s behavior at the time, why should it surprise anyone that he’s baffled as to why the city should have to fork out money in a civil suit?

Trinity Park resident Ellen Dagenhart joined Saunders and Joyner in expressing outrage over the prospect of a civil suit settlement. “Take it to court, let it be heard,” she exclaimed to the N&O. “I don’t know how you decide that one life is worth more than another.” Since every other falsely accused person victimized by massive prosecutorial and police misconduct in the history of North Carolina hasn’t received a $10 million settlement, in Dagenhart’s logic, Durham should refuse the settlement offers.

But, of course, this is the same Ellen Dagenhart who, according to the N&O, “praised Gottlieb’s get-tough tactics” with Duke students and enthusiastically endorsed the DPD’s policy of treating Duke students according to procedures different than those used with all other Durham residents. Given that such behavior forms a key element of the civil suit claims, why should it surprise anyone that she’s baffled as to why the city should have to fork out money in a civil suit?

The Bob Ashley-led Herald-Sun made its contribution to the chorus, clucking, “It seems clear that the police department made serious errors. On the other hand, $30 million is too much. Much too much.”

But, of course, this is the same Herald-Sun that bent over backwards to ignore those “serious errors” as the case was occurring. Instead of seeking to hold the powerful accountable, Ashley, et al. advocated giving Nifong and the DPD a free pass. A few days after the November election, the H-S editorial page breezily recommended that “the best course for all concerned is to continue down the current path to trial,” since “it would be better for the players to have an opportunity to prove their innocence at trial.” [emphasis added] Given that Ashley failed to see anything wrong the the behavior of Nifong or DPD while the case was occurring, why should it surprise anyone that he’s reluctant to see the city fork out money in a civil suit?

Barry Buffaloe, a senior accounting clerk at Duke who says he’s worked at the school for the past 25 years, also was outraged at the proposed settlement. He conceded that “a district attorney got a little(!) overzealous(!).” But what was the real problem? “This group of young men wanted adult entertainment at their party.” (Buffaloe used the phrase eight times in a nine-paragraph letter.)

Buffaloe, it seems, wants to amend federal civil rights statutes to prevent their application to any and all people who have watched “adult entertainment at [a] party.” (This, perhaps, can be the newest crusade for the Group of 88.) For those who have watched “adult entertainment at [a] party,” the police can make knowingly false public statements accusing you of a racially motivated gang rape. The police can run a lineup confined to suspects, in violation of their own procedures, so an accuser can pick someone that can be charged. The police can even manufacture evidence like the Gottlieb report to try and railroad three innocent people into a 30-year jail sentence.

Fortunately, since Mr. Buffaloe has never watched adult entertainment, he’ll still have the right to file a federal lawsuit if the police do any of the above to him. As for his neighbors who have watched adult entertainment . . . here’s hoping they steer clear of Sgt. Mark Gottlieb.

A more serious critique of the proposed settlement came from the Chronicle. The editors suggested that the settlement “seems somewhat bizarre,” since “the 'bad guys' in this case are not the Durham citizens who will be paying the lion’s share of that settlement, but rather Nifong and certain members of the Durham Police Department.”

The editorial continued,

At the end of the day, however, it only makes sense that money should go into—and not be taken from—the coffers that supported the infrastructure that supported Nifong’s clear miscarriage of justice. Plus, the families already have money coming in from other sources.

It is, moreover, laudable that the families and their attorneys are using the injustice they experienced as a catalyst for change . . . but it also seems out of place and perhaps even a bit heavy-handed to attach such stipulations to a request for $30 million with the city.

The latter point is not persuasive: civil rights suits frequently are used to achieve meaningful procedural reforms, especially regarding cities or agencies that have proven reluctant to initiate these reforms on their own. That might be “heavy-handed,” I suppose, but it’s also not at all uncommon.

That the families have money coming in from other sources is irrelevant to the justness of a cause of action against Durham. And I disagree strongly that it “only makes sense” for money to go into the Durham city coffers, given the performance we have witnessed from Durham over the past 18 months. As to whether taxpayers should be held responsible for the misconduct of their police department acting as a unit—on this point, the editors’ objection appears to be more with federal law, which allows such suits, than with the players and their families.

Most critics of the proposed settlement appear to have overlooked both the purpose of the law under which the suit would be brought and some of the basic facts of this case. In a recent N&O article, Jim Coleman explained,

how much the lacrosse players suffered is just one factor in determining an appropriate amount to seek. Coleman said he thinks Durham police failed to adequately explore evidence that could have exonerated the players, a charge the city denies. He said other falsely accused people have suffered more, but they often were the victims of negligence rather than an intentional effort to bring charges without evidence.

The question of intent—whether police willfully railroaded the lacrosse players—will be a key factor if the civil case goes to trial, Coleman and Largess said. If police and city officials are found to have maliciously pursued the case knowing the evidence wasn’t there, they should pay until it hurts, Coleman said. “There’s an element of punitive action involved in lawsuits like this,” he said.

The next day, Coleman added that deterrence can be a critical action of such suits: “When the city acts in ways that are so totally outrageous and could have been prevented, I think the damages ought to be sufficient to deter that kind of behavior in the future and also to send a message to other cities and prosecutors across the state. I have no idea the damage they suffered. There’s no way for us to say $30 million is low or high.”

As so often has occurred on this case, it’s difficult to argue with Coleman’s reasoning. Indeed, the Baker/Chalmers report maintained that the behavior of the Durham Police Department in the lacrosse case was “typical” of how it approaches all of its cases. If that claim isn’t grounds for a punitive finding against Durham, then nothing would be.

It is worth remembering exactly what happened here: A district attorney, at least two police officers (Gottlieb and Addison), a forensic nurse, a DA’s investigator, and a lab director (along with, possibly, others) seemed to work together to manufacture inculpatory evidence to implicate three people for a crime that never occurred. All the while, superiors in Durham’s law enforcement and political structure either looked the other way or actively supported the conspiracy. That is about as serious a level of misconduct by local government officials as can be imagined.

A pragmatic point is also worth considering. Critics of the settlement appear to assume that we know everything there is to know about the DPD’s misconduct. Yet, to date, neither City Manager Baker, nor former Chief Chalmers, nor Capt. Lamb, nor Deputy Chief Hodge, nor Sgt. Shelton, nor Inv. Soucie, nor Inv. Clayton have been deposed. The depositions of Sgt. Gottlieb, Det. Himan, Intimidator Wilson, and Lt. Ripberger were conducted for the limited purpose of the Nifong disbarment hearing—and even there, much embarrassing emerged (the dry-eraser board, Gottlieb’s false testimony to the grand jury, and the continued defenses, by all concerned, of the procedurally improper April 4 lineup). If those damning revelations came out of the limited depositions that have occurred to date, imagine what would shake free after Barry Scheck and Brendan Sullivan get through with the above list.

After such a deposition process, I suspect that $30 million will look like a bargain.