Reflections on the Civil Suit

[This post is the first of several in the epilogue to the blog, which will appear weekly through the end of the month or November, tying up loose ends related to the case.]

The civil suit motion—more than 160 pages—makes for gripping reading. Since much of it summarizes the misconduct committed by Mike Nifong and his enablers in the Durham Police Department and at DNA Security, Inc., many portions should be familiar to readers of DIW. But the motion also makes several new points that are worth highlighting.

1) Dr. Brian Meehan has a boss, and his name is Richard Clark.

Depositions and testimony from the State Bar’s ethics hearing highlighted the previously obscure fact that Meehan was not the only DSI employee who attended the April 10, April 21, and May 12 meetings. On each occasion, Richard Clark, Meehan’s supervisor and owner of the lab, accompanied the doctor.

The civil suit filing makes clear that Clark is as complicit as Meehan in the lab director’s decision to enter into an intentional agreement with Mike Nifong to withhold exculpatory evidence, by producing a report that did not list all test results, in violation both of North Carolina law and of DSI’s internal protocols.

Even if Meehan were willing to sacrifice his integrity by joining Nifong’s scheme, why did Clark fail to exercise adequate supervision over his employee? Did Clark tell Meehan that he had to follow DSI protocols in producing the May 12 report? Why did Clark—who attended the May 12 meeting, and thus knew that Meehan produced an incomplete report—allow the report to be submitted in the first place? Why did Clark not order Meehan to produce a complete report when defense attorneys raised the issue in their December 13 motion?

Clark’s decision to purchase DSI from Meehan shortly before the lacrosse case erupted looks as if it will go down as a terribly costly investment.

2.) Last week’s “only-in-Durham” award went to . . . Beverly Thompson.

In the N&O, Matt Dees and Joe Neff quoted Thompson giving the city’s spin on the filing: “We understand that the complaint asserts claims against the city and its employees that appear to be based on untested and unproven legal theories.” Dees and Neff dryly continued that the spokesperson added “that she couldn't elaborate on what theories those might be.” [emphasis added]

Only in Durham could a city spokesperson contend that the City Council rejected a settlement on grounds that the city itself either couldn’t or wouldn’t publicly explain. This unwillingness to offer a public explanation for the government’s decision renders hollow a few of the councilors’ recent demagoguery about their great concerns for the interests of Durham taxpayers.

Moreover, Thompson’s assertion is absurd on its face. Many things might be said about the civil suit motion, but it clearly isn’t based on untested or unproved legal theories. Section 1983 filings are the norm in civil suits dealing with police misconduct.

3.) Early failures of leadership are proving costly now.

An astute observer of the case has described the response to events of Durham’s police and political leadership as “La, la, la, la—I can’t hear you.”

Over and over again, when faced with evidence of wrongdoing by Durham police officers or by Mike Nifong, the city’s political and police leadership either looked the other way or (in the case of comments by Patrick Baker, Steve Chalmers, and Lt. Mike Ripberger with the April 4, 2006 lineup) rationalized the wrongdoing.

This behavior was the easiest short-term course—it allowed the DPD and the Durham political leadership to avoid confronting Nifong. Such reticence also ensured that the DPD wouldn’t be a target of the “take-it-to-trial” mantra of Bob Ashley, the NAACP, and anti-lacrosse extremists such as Orin Starn.

But the city’s decision to allow wrongdoers to go unpunished (and, indeed, to go after the one officer who got the case right from the start, Sgt. John Shelton) has exposed it to the civil suit claim that Police Department officials failed to exercise effective supervision.

The lesson: short-term benefits can often lead to long-term harm.

4.) How did Gottlieb get the case?

The civil suit motion focuses on one unexplained aspect of the case: how and under what circumstances did Sgt. Mark Gottlieb—a figure that DPD officials knew had an animus against Duke students—assume control of the investigation? And, having assumed control of the inquiry, why wasn’t Gottlieb effectively supervised, to prevent his known biases from coloring the investigation?

5.) Which of the proposed remedies does the Durham leadership oppose . . . and why?

For instance, given the acknowledged conduct in the lacrosse case, can the city credibly oppose the demand for a court order to ensure that “all eyewitness identification arrays, lineups, and similar procedures conducted by the Durham Police Department, whether formal or informal, and/or of suspects or ‘witnesses,’ conform to the provisions of General Order No. 4077 and be recorded by videotape”?

Or, given the acknowledged conduct in the lacrosse case, can the city credibly oppose the demand for a court order that the Durham Police Department provide proper remedial training to all personnel on “the appropriate chain of command in criminal investigations”; or “the issuance of public statements relating to an open investigation”; or “the conduct of eyewitness identification procedures”; or “the standards for police reports, investigator’s notes, and other reports of investigations, including the timely and truthful preparation of such documents”; or “the standards for probable cause”?

6.) What’s Durham’s defense?

The “la, la, la, la” strategy has one other serious problem: it severely limits the ability of the city’s attorneys to mount an effective defense.

The city, of course, can’t admit that the investigative procedures followed in the lacrosse case are customary for Durham. Yet how else will the city’s attorneys explain away the failure to discipline obvious wrongdoers (such as Addison and Gottlieb) or the acquiescence of the DPD leadership in Nifong’s seizing control of the police investigation?

And, from the other extreme, the city can’t rationalize the errors by admitting that the lacrosse case was an extraordinary one—featuring misconduct of the type never before seen in Durham—since if it does so, such a concession would make another element the plaintiffs’ case.

What approach will Durham select? Perhaps the Beverly Thompson one—mounting a defense on a secret theory that can’t be revealed to the court.