Postscript: Reflections on the Responses

Some thoughts on the responses of Durham, Durham officials, and DNA Security:

1.) Civil lawsuits are no substitute for a federal criminal inquiry.

This was a case in which at least five people—Mike Nifong, Mark Gottlieb, Tara Levicy, Linwood Wilson, and Dr. Brian Meehan—appeared to conspire to use the tools of the state to manufacture evidence for a crime that never occurred. It’s difficult to imagine a more serious abuse of a local government’s authority.

Yet the Department of Justice rejected the request of AG Roy Cooper for a joint federal/state criminal investigation into the matter, and it appears that the state lacks the power to launch an investigation on its own.

It’s possible, of course, that the civil lawsuit will yield depositions and, ultimately, testimony that will expose the full extent of misconduct that occurred in this case. But, as the various responses revealed, most of the defendants (Nifong is the exception here) might be able to get some or even all of the claims against them dismissed on procedural grounds.

2.) The City of Durham still appears to believe that its handling of the lacrosse case was proper, and that no reforms are needed in its law enforcement practices.

It’s worth remembering that the recent court filings weren’t the city’s first official responses to the lacrosse case. That came in May, when then-City Manager Patrick Baker and then-Police Chief Steven Chalmers released a 12-page report describing as “typical” the DPD’s performance in the case.

In that report, the duo defended the April 4 lineup—the only evidence used to indict Reade Seligmann and Collin Finnerty—as wholly proper, even though it violated DPD procedure in virtually every respect. The suggestion: the DPD didn’t have to follow its own procedures; and, perhaps, regularly violates them.

Baker and Chalmers preposterously blamed defense attorneys for the DPD’s participation in the indictment of demonstrably innocent people. They defended the DPD’s decision not to ask Crystal Mangum about the myriad contradictions in her multiple stories. And they offered contradictory recollections on whether Durham Police officials had allowed Mike Nifong to usurp control of the police investigation.

At the time, the Baker/Chalmers report attracted widespread ridicule, even from the “hear-no-evil/see-no-evil” Herald-Sun editorial page. Yet the report, in many ways, provided the template for the city’s official response to the players’ civil suit.

Much like the Baker/Chalmers report, the city’s official response was contradictory on Nifong’s role in supervising the investigation. On the one hand, the city’s response deemed it “nonsensical” to claim that Nifong directed the investigation. On the other hand, the city’s response consistently asserted that Nifong and Nifong alone deserved all blame for decisions made in the case—including, presumably, the decisions to run the flawed April 4 lineup, not to ask Mangum about the myriad inconsistencies in her stories, and to ignore exculpatory evidence in the case. Just like Baker and Chalmers, the city’s attorneys never addressed the contradictions inherent in their position.

3.) The grand jury—considered by the framers as an opportunity for the people to check the power of an abusive state—now functions as an enabler of governmental abuse.

The 25 rape cases before the lacrosse case handled by the DPD and Mike Nifong’s office had one thing in common: in each of the 25, the police had arrested the suspect as soon as the DPD believed it had enough evidence to make a charge.

In the lacrosse case, however, a different approach was followed: even though police had all the “evidence” they ever would possess against Reade Seligmann and Collin Finnerty on April 4, 2006, they made no arrest. Instead, the DPD and Nifong waited nearly two weeks, until the next meeting of the grand jury—at which Gottlieb, by his own admission, gave false testimony, suggesting that Mangum had told consistent stories from the time she first encountered Tara Levicy on March 14, 2006.

It wasn’t hard to figure out what motivated Nifong and the DPD: under a quirk in North Carolina law, a defendant who’s arrested before a grand jury indictment is entitled to a probable cause hearing. A defendant who’s first indicted by the grand jury has no such right. So, in this case, the grand jury was used to eliminate the only real legal check on Nifong’s ability to secure an indictment.

The responses by both Durham and several individual members of the DPD revealed the continuing harm of the grand jury system. Each cited case law to suggest that a grand jury indictment provides a near-absolute defense against a 4^th amendment civil claim. The fact that Mark Gottlieb—by his own admission—gave false testimony to the grand jury might provide an opening to the falsely accused players. But it’s ironic, to put it mildly, that for a second time in this case, the grand jury could function as enabler of a massive violation of civil liberties.

4.) The responses feature breathtaking descriptions of “normal” law enforcement work.

DSI attorney Robert King appeared to assert that DNA Security was not obligated to produce a report that adhered either to its own company protocols or North Carolina state law regarding DNA tests resulting from an NTO. He equated the lacrosse players suing DSI for not following the law or its own protocols as merely a complaint that the plaintiffs “do not like the way that the report was written.”

Cpl. David Addison went on what could be called a defamation spree, spewing demonstrably false information about the case through his capacity as DPD public spokesperson. How did his attorney describe this conduct? As demonstrating Addison’s “duty to the public to serve and protect it.”

Linwood Wilson’s response conceded that the former investigator took “actions might have lead to a deprivation of a constitutional right or [were] otherwise illegal.”

In its response, the city of Durham maintained that “its officials’ and police officers’ conduct was consistent with federal and state law and was motivated by the belief that any serious crime reported by a resident of the City should be thoroughly investigated without bias in favor of or against any person on the basis of race, gender, or socioeconomic status.”

Is it “consistent with federal and state law” to: (1) run photo ID processes that violate the department’s own standards; (2) have at least one of the city’s officers give false testimony to the grand jury; (3) conduct a rape investigation in which the medical officer who performed the rape exam (Julie Manly) was never interviewed by the police; (4) seek a non-testimonial order against people that police officers didn’t even know were at the scene of the “crime”; (5) wait more than three weeks before obtaining the official statement from the “victim”; (6) produce a months-after-the-fact police memorandum contradicting all other police reports and seemingly designed to fill in existing holes in the case?

Does the city of Durham understand “federal and state law”? Its response suggests not.

Various Items

In the Durham News, columnist Rob Waters made a passionate case for what appears to be a call to change federal civil rights law to prevent lawsuits against municipalities that abridge defendants’ civil rights. Wrote he, “The lacrosse players were never convicted, never did time. And they’re somehow entitled to millions? Silly me, just trying to be logical.”

This has been the most wide-open presidential contest in recent memory, with almost no major issue not finding support from at least one of the major candidates. Yet, to my knowledge, no candidate has embraced Waters’ apparent “logic” and called for this radical reform of federal civil rights law. Waters’ column today didn’t go into detail why he wants the law changed (I’m assuming that he wasn’t arguing that while the lacrosse players weren’t entitled to sue under the law, more “politically correct” victims of municipalities’ misconduct should be entitled to such lawsuits; such a position, of course, would be writing discrimination into federal civil rights statutes). But I hope Durham News readers will be watching for Waters’ forthcoming work on this topic. Perhaps he’ll launch a lobbying campaign asking Durham’s congressman, David Price, to lead the charge in reforming federal civil rights law along the lines that Waters’ “logic” demands.

For DIW readers in southern Maine, I’m back in the US briefly for our intersession period, and will be speaking on the book next Sunday at 2pm, at the Scarborough Public Library.

Finally, a reminder on comments policy: I try to be as tolerant as possible in clearing comments, including those with which I disagree. Yet it’s not my policy to clear comments that are demonstrably false. In the last two days, one anonymous commenter penned a remark citing an alleged quote by AG Roy Cooper that Tara Levicy’s rape kit exam cleared the lacrosse players. There was, however, no such quote by Cooper; and, indeed, the AG report’s only comment on Levicy dismissed her findings as “subjective.” A second anonymous commenter penned a remark stating that Levicy had testified under oath and been exonerated. Again, this statement was untrue.

Since both comments were demonstrably untrue, neither was cleared.

Postscript: Durham Officials, DNA Security

The lawsuit responses of both Durham officials (Steve Chalmers, Ron Hodge, other police supervisors, and former City Manager Patrick Baker) and DNA Security touch on themes that by this point are familiar: everything bad was done by Mike Nifong and Nifong alone; and if anyone else did anything which violated the lacrosse players' civil rights, the defendants have immunity from a civil suit.

That said, both responses exhibit some notable instances of selective memory.

For instance, attorney Patricia P. Kerner, representing Chalmers, Hodge, and Baker, contends,

Deliberate indifference on the part of a supervisor may not be established “by pointing to a single incident or isolated incidents, . . . for a supervisor cannot be expected to promulgate rules and procedures covering every conceivable occurrence within the area of his responsibilities.” Nor may it be alleged absent facts that “support a finding of deliberate indifference”; bare assertions will not do. “Deliberate indifference is a very high standard—a showing of mere negligence will not meet it. A claim of deliberate indifference implies at a minimum that defendants were plainly placed on notice of a danger and chose to ignore the danger notwithstanding the notice.”

It seems that Kerner is unfamiliar with the behavior of her clients. The conduct of former chief Steve (“perpetually absent”) Chalmers certainly rises to this standard: beginning in mid-April 2006, defense attorneys repeatedly and publicly maintained that the DPD’s performance was violating all standards of due process. Chalmers—who, as chief of police, bears ultimate responsibility for supervising his department, “chose to ignore the danger notwithstanding the notice.” Indeed, that Cpl. David Addison was promoted and Sgt. Mark Gottlieb remains in the DPD’s employ suggests that the department still has “chose[n] to ignore the danger notwithstanding the notice.”

Another Kerner clause suggests a lack of familiarity with the facts of the case. She writes,

There is no allegation as why the City Manager, or any one of these particular members of Durham Police Department would have been in a position to personally know of a pervasive risk of constitutional violations by these specific investigators.

Really? This is the same Patrick Baker who, on May 10, 2006, gave an interview to the N&O, in which he asserted, “I’ve had a lot of conversations with the investigators in this case and with officials at Duke, and at no time did anyone indicate [Crystal Mangum] changed her story. If that were true, I’m sure someone would have mentioned it to me.”

In short, Baker, by his own admission, placed himself “in a position to personally know of a pervasive risk of constitutional violations by these specific investigators,” because, by his own admission, he “had a lot of conversations with the investigators in this case.”

Kerner also excuses the DPD’s performance in the April 4, 2006 photo array. After maintaining that the lineup doesn’t rise to the level of a constitutional violation, she maintains,

Even if Plaintiffs could establish a constitutional violation arising out of the “April Photo Array,” and causally relate it to either Baker or Chalmers, Defendants are protected by qualified immunity. Plaintiffs expressly allege that Prosecutor Nifong “designed” this identification process. Thus, they are immune from any claim that could arise out of this procedure.

Indeed Nifong did “design” the procedure—which, it would seem, contradicts a central assertion in the City of Durham’s response, namely, that Nifong wasn’t delegated command and control of the police investigation. Kerner doesn’t address the apparent contradiction.

Robert King, who represents DSI and DSI president Richard Clark (and whose argument also applied to DSI’s former lab director, Brian Meehan) maintained that DSI was “absolutely immune from suit and that none of the DSI Defendants owed a duty to Plaintiffs.” [emphasis in original] He then spent 50 pages justifying DSI’s conduct.

King added that “Under long-established precedent, the DSI Defendants are entitled to absolute immunity from all of Plaintiffs’ claims, which arise from Meehan’s conduct (as the laboratory director for DSI) as an expert witness for the State in the Criminal Action.”

Why? “The justice system’s interest in ascertaining the complete truth of matters in dispute necessitates such a broad grant of immunity to potential witnesses not only for their trial testimony, but also for their participation in pretrial analysis.”

This statement turns logic on its head—can King seriously maintain that an interest in “the complete truth of matters in dispute” necessitates granting Meehan immunity from the consequences of entering into an intentional agreement with a representative of the state to produce a report that excluded exculpatory evidence?

Here’s how King describes the players’ claim against DSI:

Ultimately, Plaintiffs’ allegations as to the DSI Defendants come down to this: Even though the criminal defendants were given both a report and all of the raw data generated by DSI, and even though the DNA testing performed by DSI was accurate and exonerated Plaintiffs, Plaintiffs do not like the way that the report was written (because it did not include information about DNA from males other than the lacrosse players), and Plaintiffs object to the fact that the DNA raw data was voluminous and difficult for the criminal defense attorneys to understand (although the defense attorneys did understand the data after some effort.

So: an expectation that DSI follow its own protocols (which require the written reporting of all test results) and North Carolina state law (which requires the written reporting of all test results that come from a non-testimonial order) is, in King’s opinion, nothing more than a complaint that the “Plaintiffs do not like the way that the report was written.”

King does concede that Nifong and Meehan met three times before the report was prepared. What occurred at these meetings? “Precisely the sort of ordinary and expected interaction between witness and prosecutor that is protected by absolute witness immunity.”

Meetings at which Nifong and Meehan discussed producing a report that didn’t include all results are “precisely the sort of ordinary and expected interaction between witness and prosecutor,” according to DSI? King adds, “DSI fully satisfied any possible obligation it might have had when it informed Nifong of the results of its DNA testing.”

This assertion raises questions: since King appears to be saying that DSI had no “obligation” to either follow its own protocols or relevant North Carolina law, how often does DSI withhold test results from its reports at prosecutors’ behest?

May 12 report

King presents an interesting version of the origins of the May 12 report. He writes,

On May 12, 2006, as directed by Nifong¸ Meehan provided Nifong with a written report (“the May 12 Report”) of DSI’s findings on the issue of whether any matches were found between the rape kit samples (i.e., the samples from Mangum) and the “reference” samples (the 46 lacrosse players and Mangum’s boyfriend). Per Nifong’s directions, the report did not discuss the DNA from any “non-reference” samples (i.e., persons other than the lacrosse players and Mangum’s boyfriend).

King, therefore, has offered a completely new interpretation of the report. In court on December 15, 2006, Meehan asserted that the report resulted from an agreement between Nifong and him. In his testimony (under oath) in the Nifong ethics hearing, “Mr. Obfuscation” appeared to assert that the incomplete reporting was his idea and his alone. King is now asserting that the incomplete report had nothing to do with Meehan or DSI but was solely the work of Nifong. To make the claim, however he has to assert that Meehan lied under oath not once but twice.

What, by the way, is the worst that can be said about what Meehan did? According to King, it was “the failure of an expert to include all opinions in a report, and the failure to summarize raw data for a third party.”

But Meehan didn’t just exclude opinions: he failed to include all results of his tests, as both his lab’s protocol and state law required. (In his 50 pages, King not even once mentions either North Carolina law on NTO reporting or DSI protocols on writing reports.)

King’s memorandum does include one intriguing item: he presents a far different view of Durham’s legal liability than does the City’s memorandum of law. He concludes, “Assuming—as the Court must at this stage—that Plaintiffs’ allegations have some merit, it is perhaps not surprising that Plaintiffs have brought suit against some or all of the Non-DSI Defendants.”

I’m sure the Durham attorneys were delighted to see that conclusion.

Postscript: Various Items

An excellent article in today's Herald-Sun from reporter Ray Gronberg, explaining why Mike Nifong's bakruptcy filing will, perhaps, buy him some time but will not help him avoid liability for what he did. In addition, as Gronberg observes, a bankruptcy trustee "is certain to look at whether Nifong tried to hide assets from his creditors. The former DA's petition claimed he owned only a house, a car and $500 worth of clothing. He listed no other belongings -- not even a book or CD."

Aaron Beard obtains the first reaction from the falsely accused players' legal team to the City of Durham's filings. Richard Emery, who's representing Reade Seligmann, called the city's response "a very artful attempt to duck responsibilities they have . . . The simple fact is, while Nifong is definitely one of the preliminary malefactors in this whole sad saga, he was playing the role of a municipal actor and therefore Durham is responsible since they put him in charge (of the investigation)."

And this item in today's Globe from Jackie MacMullan, on the allegations against Randy Moss: "If we've learned one thing from the Duke lacrosse scandal, it's that a rush to judgment can lead to false - and devastating - conclusions. Moss deserves his day in court."

Hat tip: K.J.

Postscript: Contradicting Durham

Attorneys representing the city of Durham shared their response with the individual defendants; the lawyers representing Sgts. Mark Gottlieb and David Addison both cite it in their responses.

It seems unlikely, however, that either Gottlieb or Addison shared their responses with their superiors. Both Gottlieb and Addison undermine a central Durham claim.

The Durham response dismisses the claim of the falsely accused lacrosse players and their attorneys that the Durham Police Department allowed Mike Nifong to usurp control of the police investigation as of March 24, 2006—or eight days into the investigation. “In addition to being nonsensical,” scoff attorneys Reginald B. Gillespie, Jr. and Roger E. Warin, “this claim fails as a matter of law.”

Yet in their response memoranda, both Gottlieb and Addison explicitly contradict Durham’s claim.

Gottlieb attorneys Edwin M. Speas and Eric Stevens: “The execution of the nontestimonial identification order and the photographic presentation were conducted with the participation or direction of the District Attorney’s office.”

Addison attorney James Maxwell: Nifong “assumed control of the investigation.”

Joel Craig, attorney for Ben Himan, confirms the Addison/Gottlieb version of events.

And, of course, the Gillespie/Warin memorandum wholly ignores the never-contradicted assertion of Mark Gottlieb that, on March 24, 2006, his superiors instructed him to go to Nifong for direction on how to conduct the investigation.

If even some of the defendants concede that Nifong ran the police investigation, how can the city of Durham credibly claim that he didn’t do so?

Postscript: The Addison Response

The 26-page response of former Cpl. (now Sgt.) David Addison stands out as the most churlish of the reply briefs. It’s the handiwork of Durham attorney James Maxwell, who certainly knows his way around law enforcement officials whose behavior raises ethical questions. Maxwell represented the prosecutors in the Alan Gell case. He described David Hoke and Debra Graves as victims in “a novel case where [the Disciplinary Hearing Commission members] are asked to impose discipline for an unintentional, neglectful, no controversy, honest mistake.”

Maxwell advances three arguments for dismissing all claims against Addison:

1.) Addison was simply doing his job as DPD public spokesperson, relaying information that had been provided to him by others. Indeed, Maxwell goes to great lengths to allege that Addison made no independent effort to verify any of the “facts” that he shared with the public. This line of argument recalled Mike Nifong's claim in the ethics hearing that he shouldn't be held responsible for lying about the contents of the Meehan report because he never reads documents in his file.

In any event, Addison frequently offered his own editorial comments about these “facts.” Maxwell doesn’t reveal whether Addison made these comments on his own or whether he was instructed by unknown persons to do so. Maxwell also doesn’t go into any detail about how Addison obtained the “facts” he shared with the public in March 2006.

2.) Addison has qualified immunity as a public spokesperson, since his remarks came in an official capacity. If he did anything wrong—and Maxwell quickly points out that he’s not saying Addison did anything wrong—Durham is responsible for any civil liability, not Addison.

Maxwell adds, “As a police officer of Durham, David Addison owed a duty to the public to serve and protect it. He did not owe a specific legally cognizable duty to the Plaintiffs to carry out this public responsibility in a manner they found acceptable.”

It’s worth remembering that Addison was promoted last fall—suggesting that his superiors in the DPD didn’t find anything particularly objectionable in his actions in the lacrosse case.

3.) As noted in the Gottlieb and Durham memoranda, Maxwell argues that the grand jury indictment should shield Addison from any legal liability. Even if the court doesn’t accept that argument, Maxwell asserts that Nifong and Nifong alone was responsible for securing indictments, so all blame should go to the disgraced former DA.

Maxwell’s memorandum, however, repeatedly veers into ill-concealed attacks on the lacrosse players. As did the response of Sgt. Gottlieb’s attorneys, Addison’s lawyer suggests that the lacrosse players were, basically, lucky: “Fortunately for these plaintiffs, they never experienced a trial,” because the “judicial process of North Carolina” worked for them.

If this case represented the judicial process of Durham working, what would a case look like where the process failed?

Even more oddly, Maxwell denies that Addison made “made some false, misleading, or inflammatory statements.” What, again, were Addison’s public statements on the case?

• “You are looking at one victim brutally raped. If that was someone else’s daughter, child, I don’t think 46 (tests) would be a large enough number to figure out exactly who did it.”

That statement was false, misleading, and inflammatory.

• “Addison said police approached the lacrosse team with the five-page search warrant on March 16, but that all of the members refused to cooperate with the investigation.”

That statement was false.

• “We’re asking someone from the lacrosse team to step forward . . . We will be relentless in finding out who committed this crime.”

That statement was misleading and inflammatory.

• “Addison said police can’t force samples from anyone they believe to be implicated in a crime. But he said that, in this situation, there was ‘really, really strong physical evidence.’”

That statement was false.

• “We’re not saying that all 46 were involved. But we do know that some of the players inside that house on that evening knew what transpired and we need them to come forward.”

That statement was misleading and inflammatory.

• “The Duke Lacrosse Team was hosting a party at the residence. The victim was sodomized, raped, assaulted and robbed. This horrific crime sent shock waves throughout our community.”

That statement was false, misleading, and inflammatory.

Was Maxwell unaware of his own client’s record?

Postscript: The Gottlieb Response

Representing Mark Gottlieb, attorneys Edwin M. Speas and Eric Stevens hold their client free of any civil liability. “Since Sgt. Gottlieb,” they write, “did not have authority to ‘initiate’ or ‘continue’ a criminal prosecution, and since he provided all relevant information to the District Attorney, Sgt. Gottlieb cannot be held liable for the actions and decisions of the District Attorney or the grand jury.”

What’s the worst that could be said of him? That “Sgt. Gottlieb conducted an aggressive investigation motivated by his desire to produce identifications and arrests in response to pressure from his superiors.” Borrowing from the class-baiting tone of the Durham response, Speas and Stevens add that “Sgt. Gottlieb has always been careful, as he was in this case, to investigate alleged violent crimes fairly and thoroughly without regard for the social status, race or gender of the victim or perpetrator of the alleged crime.”

It’s All Nifong’s Fault

Reflecting a common approach in the responses, Gottlieb’s attorneys blame everything on Nifong. They contend,

The independent decisions of the District Attorney to charge Plaintiffs—and the grand jury to indict them—fully insulate Sgt. Gottlieb from any federal civil liability to Plaintiffs under Section 1983, particularly when the Amended Complaint affirmatively alleges that Sgt. Gottlieb shared all material information with the District Attorney.

The attorneys continue,

In light of clear case law establishing that an officer is not liable under Section 1983 when he discloses all relevant information to the prosecutor and the prosecutor makes an independent charging decision, Sgt. Gottlieb is entitled to the protection of the qualified immunity doctrine because he had reason to believe he satisfied any duties he owed to Plaintiffs when he shared all relevant information with the District Attorney.

Reinventing History

Like the Durham response, the Speas/Stevens memorandum describes a past that few who followed the case would recognize. They observe,

A public official performing discretionary acts can be liable for wrongdoing only (1) if the wrongdoing occurs outside the scope of official authority or if the conduct is (2) malicious or (3) corrupt. For purposes of public official immunity, an official acts with malice only “when he wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another.” An act is wanton if it is done with a wicked purpose or with reckless indifference to the rights of others.

It would seem that this description fits Gottlieb to a T. The administrator of the rigged April 4 lineup, the person who (by his own admission) gave false testimony to the grand jury, and then the author of the “straight-from-memory,” obviously transcribed notes could certainly be described as doing “that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another.”

The Gottlieb attorneys don’t see it that way. Instead, they suggest that the most unfavorable interpretation of Gottlieb’s conduct would suggest that “Sgt. Gottlieb cut corners in a high-profile rape investigation in response to pressure from his superiors to crack the case,” and that he never “intended his actions to be prejudicial or injurious” to the plaintiffs.

This is a preposterous assertion. If Gottlieb’s actions weren’t intended to be prejudicial or injurious to plaintiffs, what would be? Not according to Speas and Stevens. Remarkably, they imply that the lacrosse players might owe Gottlieb a debt of gratitude: “Due in part to information gathered by the DPD, the Attorney General dismissed all charges against Plaintiffs and declared them innocent in a statement issued April 11, 2007.”

No Harm, No Foul

Speas and Stevens (understandably) dance around Gottlieb’s admission (in his testimony to the Bar) that he gave false information to the grand jury. They point to case law claiming absolute immunity for anything he said to the grand jury, without commenting one way or the other on the truthfulness of his testimony.

Yes, they concede, Gottlieb presided over a lineup that violated Durham norms, but he didn’t incur civil liability for doing so, because “no constitutional right of Plaintiffs was violated because the identification procedure was not used in a criminal trial.”

And, in one of the Speas/Stevens memorandum’s most revealing passages:

Assuming arguendo that alleged witness tampering could be a Constitutional violation when there was no criminal trial, there is no plausible factual allegation that any alleged acts of witness tampering were material in obtaining the indictment against Plaintiffs. Indeed, there is no allegation that Elmostafa or Shelton ever recanted their statements that were helpful to the defense. Similarly, though Plaintiffs allege that officers conducted “ambush” interviews of Duke students, there is no plausible allegation that those interviews affected the prosecution. Finally, though Plaintiffs assert that Sgt. Gottlieb fabricated information in his “Supplemental Case Notes,” the Amended Complaint alleges that that those notes were prepared long after the indictments were issued, and there is no plausible allegation that the Supplemental Notes had any effect on the prosecution.

In other words, Gottlieb might have done terrible things, but they didn’t help Nifong, so he shouldn’t be held liable.

The Upside-down World of Durham

The most peculiar items from the Gottlieb memorandum come in the sections where his attorneys paints the sergeant as a typical North Carolina law enforcement officer. Speas and Stevens reason that “there is a fine line between legitimate law enforcement tools that police officers use everyday and the actions characterized as wrongful in the Amended Complaint.”

Yes, Gottlieb might have presided over an eyewitness ID session that flagrantly violated Durham norms—but “it should be noted that courts in North Carolina have upheld convictions of criminal defendants who were identified in procedures similar to those described in the Amended Complaint.”

The sergeant deserves qualified immunity, Speas and Stevens continue, since it wouldn’t “be clear to an objectively reasonable officer that his conduct violated the Plaintiffs’ constitutional rights.”

The attorneys also get in a jab at the attorney general (who noted that no evidence existed to substantiate Crystal Mangum’s claims). Gottlieb’s investigation, according to his attorneys, “produced both inculpatory and exculpatory information.” What was the “inculpatory” evidence? Mangum’s (uncorroborated, wildly varying) statements to the workers at the mental health facility, to medical personnel at Duke Medical Center and to Sgt. Gottlieb and other members of the DPD.

Next: the Addison response.

Postscript: City of Durham Response

The City of Durham has filed a 51-page response to the lacrosse players’ lawsuit. The basic argument: it was all Nifong’s fault, and since Nifong was a state employee, the city can’t be held liable for anything he did. The response is particularly passionate in its sections demanding dismissal of the players’ call for injunctive relief to ensure due process protections for future defendants that encounter the Durham Police Department.

The basic thesis recalls the “novel legal theories” talking point of Durham spokesperson Beverly Thompson from the day the civil suit was filed.

The central fact of this case is that the Plaintiffs cannot recover against Mr. Nifong’s employer—the State of North Carolina—because it has absolute immunity. As a result, Plaintiffs have resorted to overreaching conspiracy claims and other novel legal theories that attempt to impose legal liability on the City of Durham, Durham police officers, and City administrators for the actions of an overzealous prosecutor. All this creativity is in aid of an effort to impose on Durham taxpayers untold millions of dollars in damages for Plaintiffs who were publicly exonerated and never spent a moment in jail.

The last sentence recalls the demagoguery seen by such Durham “activists” as Sandy Ogburn and Bob Healy from the days before the city’s rejection of a settlement offer.

Of course, if Durham (or its attorneys) want to end punitive damages for civil rights violations, they have every right to lobby their city’s congressman (Democrat David Price) or their two senators (Elizabeth Dole and Richard Burr) to change federal law. But it’s a bit off-putting, in a memorandum of law, to see lawyers complaining about their opponents seeking damages for which, under federal law, they are entitled.

As to the suggestion that the suit is somehow unfair because the “plaintiffs were publicly exonerated and never spent a moment in jail,” the obvious response comes from (the pre-transformation) Jim Coleman. In a September 12 N&O article, 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.

On September 13, 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.”

Investigator Nifong

Attorneys Reginald B. Gillespie, Jr. and Roger E. Warin base much of their response on the assertion that “Nifong never had any official capacity with the Durham Police.”

They write,

The Amended Complaint baldly claims that State Prosecutor Michael Nifong “served in a supervisory and/or policymaking role for the Durham Police Department.” The Complaint posits that this role was “delegated” to him by various Supervisory Defendants employed by the City of Durham. In addition to being nonsensical, this claim fails as a matter of law.

Why is such an assertion “nonsensical”? Because “under North Carolina law, the District Attorney is not imbued with authority to act on behalf of municipalities, nor are municipalities empowered to control or delegate power to District Attorneys.” The duo further noted, “Not only is it impossible for a North Carolina District Attorney to exercise municipal authority under State law, it is equally impossible for City officials to ‘delegate’ such authority to an official acting on behalf of the State.”

Indeed, they conclude, “the City of Durham was never in a position to demand ‘conformance with their policies’ from Nifong or any other officer acting under State authority.”

Gillepsie and Warin spend several pages making similar points, describing how the system is supposed to work.

I doubt anyone would disagree that the DA isn’t supposed to have the authority to supervise a police investigation. Or that the Police Department isn’t supposed to allow a DA to supervise a police investigation. Or that individual officers aren’t supposed to take orders from a DA to violate their own procedures and run a rigged photo ID session.

But, of course, this particular investigation didn’t follow the rules. Nifong did exercise the authority to supervise a police investigation. And the Police Department did allow the DA to supervise a police investigation. And individual officers did take orders from the DA to violate their own procedures and run a rigged photo ID session.

Simply asserting how the system was supposed to work, while ignoring how the system did work in this case, wouldn’t seem to get the city of Durham very far.

Grand Jury

Gillepsie and Warin concede that Ben Himan and Mark Gottlieb probably didn’t present exculpatory evidence to the grand juries that indicted the three players. They also consider it possible that the grand jury could have been influenced by the DPD-generated publicity, chiefly the demonstrably false and inflammatory statements of Cpl. David Addison.

But, they note, such facts don’t matter under federal law: “Plaintiffs’ insinuations that the grand jury proceedings were somehow tainted by defendants’ failure to present the grand jury with exculpatory evidence or by their public statements . . . are legally irrelevant.”

There’s only one exception regarding this issue: “Some courts have suggested,” Gillepsie and Warin write, “that an indictment might not break the causal chain in a particular case if a defendant committed perjury before the grand jury.”

In this case, of course, Mark Gottlieb—under oath, in a deposition to the State Bar—effectively confessed that he did perjure himself before the grand jury that indicted Reade Seligmann and Collin Finnerty. Gottlieb said that he told the grand jury, “As soon as Nurse Levicy was able to calm [Mangum] down [on March 14, 2006], which didn’t take long at all, she never changed her story from that point.”

That statement was demonstrably false, as shown by this chart, which showed that Mangum told three very different stories on March 14, March 16, and April 6, 2006. Gottlieb had access to all of this information when he told the grand jury, “As soon as Nurse Levicy was able to calm [Mangum] down [on March 14, 2006], which didn’t take long at all, she never changed her story from that point.”

In short, a representative of the city of Durham, acting in his official capacity as a Durham Police Officer, did appear to have perjured himself before the grand jury—thus creating exactly the scenario that Gillepsie and Warin themselves concede should allow the civil suit to proceed to trial.

Rewriting History

The filing contains some intriguing assertions. Gillepsie and Warin reason, “Even if Plaintiffs had alleged an underlying constitutional violation by Durham police officers—which they have not—they have not adequately alleged a policy or custom of the City that caused the violation.”

In the city’s own official report, former City Manager Patrick Baker and former Police Chief Steven Chalmers described the DPD’s handling of the lacrosse case as “typical.” Even their clients, in short, concede that a “custom of the City . . . caused the violation.”

In a footnote, Gillepsie and Warin caution,

Should a trial become necessary on any claim, the City will demonstrate that its officials’ and police officers’ conduct was consistent with federal and state law and was motivated by the belief that any serious crime reported by a resident of the City should be thoroughly investigated without bias in favor of or against any person on the basis of race, gender, or socioeconomic status.

At no point in their reply do Gillepsie and Warin explain how, for example, the rigged April 4 photo session “was consistent with federal and state law” or “was motivated by the belief that any serious crime reported by a resident of the City should be thoroughly investigated.”

As for their assertion that the inquiry was handled “without bias in favor of or against any person on the basis of race, gender, or socioeconomic status,” that’s almost laughable. Kristin Butler had the most effective response to such a claim, more than a year ago: “Whether or not it was true that ‘there’s been a feeling in the past that Duke students are treated differently by the court system,’ Nifong has made sure that we are today.”

Concessions of impropriety

Gillepsie and Warin note, “Evidence suggested that Mangum had been under the influence of alcohol or drugs the night of the alleged rape and during her initial interviews.”

Really? Up until now, Durham’s official line—expressed by Mark Gottlieb and SANE nurse-in-training Tara Levicy—has been that Mangum was stone-cold sober when she recalled the details of the “rape.”

The attorneys also admit that, yes, Seligmann, Finnerty, and Evans might have been targeted because they were white Duke students, or because they were lacrosse players.

Even if true, however, Gillepsie and Warin deem such a situation irrelevant: “White Duke lacrosse players are not a protected class recognized as needing protection by the government under federal civil-rights law.”

Maintain the Status Quo

Gillespie and Warin conclude by urging the court to dismiss portions of the civil suit that call for court supervision of the DPD. The “plaintiffs,” the lawyers write, “have no standing to sue for injunctive relief,” since it’s unlikely any of the lacrosse players will return to Durham anytime soon; and even if they did, it’s unlikely they would find themselves in a situation that led to Mangum’s false claim.

The attorneys also object to the reform proposals on constitutional grounds: “Sweeping requests,” they argue, “for a wholesale restructuring of Durham’s local law enforcement system and intrusive and protracted oversight raise serious federalism concerns.”

Given the unwillingness of Durham’s leaders to enact any meaningful reform of the DPD, it’s unsurprising that the city’s attorneys argued so strongly to dismiss the claims for outside supervision of the DPD. It is a little ironic, however, that in the same complaint in which Durham’s lawyers seek to uphold the law enforcement status quo, they also admit, “Many of Plaintiffs’ allegations have aspects of harms that, in other contexts, might give rise to liability.”

Tomorrow: the Gottlieb and Addison replies.

Postscript: Nifong Bankruptcy Filing

Bloomberg News is reporting that former DA Mike Nifong has filed for bankruptcy in an apparent attempt to shield himself from the looming civil suits.

Reporter Dawn McCarty adds, "If a bankruptcy judge decides that the prosecution was willful and malicious, the debt to the players would not be erased under federal bankruptcy law."

Nifong claims more than $180 million(!) in debts--while also suggesting that he has no cash on hand, computer or audio equipment, or even audio CD's.

Postscript: Wilson Response

The first of the defendants’ responses to the lacrosse case civil suit has been filed by ex-investigator Linwood Wilson—who, in an odd twist, purports to be representing himself.

Wilson’s basic argument: all claims against him should be dismissed, since his status as a prosecutor’s assistant entitled him to absolute immunity through. (The Wilson filing concedes that no case in the 4^th Circuit has extended such absolute immunity to a DA’s investigator, though decisions from other circuits have done so.) The courts, Wilson notes, have consistently maintained that prosecutors are entitled to absolute immunity from civil suits on questions of (1) whether to prosecute; (2) withholding potentially exculpatory evidence. This doctrine, he continues, has been expanded to included “other illegal actions taken by judicial officers in the course of performing their judicial duties.”

Wilson bases his memorandum on an unusual premise. He concedes that his “actions might have lead to a deprivation of a constitutional right or [were] otherwise illegal.” But, he says, this is irrelevant, since all of his potentially illegal acts—the possible witness tampering in the arrest of Moez Elmostafa; what he himself described as an internal affairs investigation of Sgt. John Shelton; and the December 21, 2006 “interview” with Crystal Mangum—occurred after indictments had been obtained against Reade Seligmann and Collin Finnerty.

This argument is, in some ways, the reverse of one claim made by Mike Nifong in his disbarment proceedings. Nifong suggested that the state bar’s prohibition against public statements that might heighten condemnation of the accused only kicked in when the grand jury returned an indictment, not when his office had publicly accused a group of people. Denunciatory remarks that might have been permissible before indictments, Nifong argued, would not be after indictments.

In his memorandum of law, Wilson is suggesting that prosecutorial immunity kicks in once indictments occur. Illegal behavior that might expose an investigator to a civil suit before indictments, Wilson contends, would not do so after indictments.

Nifong’s argument didn’t work before the bar, and Wilson’s is unlikely to do so now. Carried to its logical extreme, the argument is absurd on its face: under Wilson’s theory, a prosecutor directing the police investigation could seek to secure indictments with no investigation at all, and then actually conduct the investigation through unethical or even illegal acts once a rubber-stamp grand jury has returned indictments.

Wilson’s memorandum appears not to have been carefully vetted: it contains at least three items that undermine the defendant’s call for an across-the-board dismissal of the suit.

1.) Wilson concedes that there is no absolute immunity for actions that are administrative or investigatory in nature, but denies that he did anything administrative or investigatory in the case. He continues, “Other actions that have been held to be investigatory in nature are: making public statements to the media (Buckley 599 U.S. at 277).”

But Wilson did make a key “public statement to the media,” in June 2006. Here was WTVD’s recapitulation:

A bitter exchange that started outside of the courtroom when Linwood Wilson, an investigator for the District Attorney's Office, interrupted a press conference by defense attorney, Joseph Cheshire.

The interruption came as Cheshire was referencing the discovery documents that indicate the accuser gave conflicting accounts of the alleged rape.

In affidavits filed by police, authorities said the accuser told police she was raped by three men at the March 13 team party where she was hired to perform as an exotic dancer with a second woman. District Attorney Mike Nifong won indictments against three players and has said they were the only ones implicated by the evidence.

After the exchange, Wilson told Eyewitness News that he personally read all 1814 pages of discovery documents and has not read that the alleged victim changed her version of the story.

Wilson’s “public statement to the media” was, of course, demonstrably false—as a letter from Joe Cheshire pointed out the next day.

So, by the standard that Wilson himself lays out in his memorandum of law, he was not entitled to absolute immunity.

2.) Wilson quoted the Buckley court: “When a prosecutor performs the investigative functions normally performed by a detective or a police officer, it is neither appropriate nor justifiable that, for the same act, immunity should protect one and not the other.”

It’s unclear how Wilson believes this citation helps his case. As he repeatedly admits, everything he did in the case was under the direction of Mike Nifong. And Mike Nifong assumed personal command of the police investigation—performing “the investigative functions normally performed by a detective or a police officer”—eight days into the case.

Therefore, by Wilson’s own argument (that he, as Nifong’s investigator, is entitled to the same treatment as was Nifong), Wilson’s own citation suggests that he should be held liable for his activity.

3.) Wilson quoted Hughes v. Ranger Fuel Corp., which states that to uphold a §1985 complaint, “there must be some racial, or perhaps otherwise class based, invidiously discriminatory animus behind the conspirators’ action.”

As with his citation of Buckley, it’s unclear how Wilson believes citing Hughes helps his case. As he repeatedly admits, everything he did in the case was under the direction of Mike Nifong. And if Mike Nifong demonstrated nothing else, it was a “racial, or perhaps otherwise class based, invidiously discriminatory animus” against the lacrosse players—beginning with several statements in his spring 2006 publicity barrage, and continuing on through his early November campaign e-mail.

Therefore, by Wilson’s own argument (that he, as Nifong’s investigator, is entitled to the same treatment as was Nifong), Wilson’s own citation suggests that he should be held liable for his activity.