Durham: Don't Let Lacrosse Players Appeal

Both the city of Durham and attorneys representing the falsely accused lacrosse players have appealed portions of Judge Beaty’s ruling in the Evans case. The two sides, however, have exhibited differing strategies of appeal. Durham is claiming that not only was Beaty’s ruling incorrect, but also that the city should be allowed to indefinitely delay the discovery process as its (longshot) appeal works its way through the court system. As for the lacrosse players’ appeal? In a filing from yesterday, Durham is claiming that they shouldn’t be allowed to appeal at all.

The issue involves Durham’s late March 2006 decision, as documented by former Sgt. Mark Gottlieb, to ignore the police department’s command structure and instead to turn over command of the police investigation to rogue DA Mike Nifong. In his ruling, Beaty said that the city had no legal authority to have done so, and therefore the city can’t be held liable for punitive damages. (Nifong was a state employee; states can’t be held liable for punitive damages in federal lawsuits under the 11^th amendment.) Attorneys for the lacrosse players are seeking to appeal this portion of the ruling, noting correctly that this interpretation amounts to a get-out-of-jail-free card for unethical entities like the DPD—they could simply turn over future police investigations to Nifong’s ethically-challenged successor, Tracey Cline, and thereby shield the city from punitive liability.

Durham wants Beaty to refuse to certify the lacrosse players’ appeal, thereby ensuring that no higher court even would hear it. In its filing, Durham concedes that the DPD violated state law by allowing Nifong to take over the investigation: “North Carolina law clearly does not permit a City to delegate its final policymaking authority to a state official, and bars a state official from acting on behalf of any governmental entity other than the state.” But, the city muses, as it couldn’t legally have taken the action that it did, in fact Nifong wasn’t really in charge of the investigation after all—the DPD, and the rogue ex-DA himself, were essentially just pretending that he was running things.

Beaty accepted this line of reasoning in his ruling—in part, it would seem, because the facts of this case were so unusual and because he permitted the falsely accused players’ civil rights lawsuit against the city to move forward on other grounds.

It’s worth remembering—as Ray Gronberg pointed out in today’s H-S—that former city manager (and current city attorney) Patrick Baker is on record claiming that the command-structure procedures employed in the lacrosse case is normal for Durham. He wrote in 2007 that “the police are a part of the prosecution team and as such it is not unusual for the investigators to work closely and coordinate their [work] with the prosecutor.” Of course, in this instance, the prosecutor was running the police investigation, well before any indictments were obtained.