Friday, September 21, 2012

The 4th Circuit Hearing

[Updated below.]

Earlier this week, Durham went to the 4th Circuit, in an attempt to terminate the civil suit filed by the falsely accused players—before discovery has even commenced. I had previously speculated that this was something of a longshot effort, given Judge Beaty’s summary of Durham’s highly troubling basic contention: 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.”

After the oral arguments, however, it’s clear that there’s a good chance the suits against the city could come to an end. Two of the judges, Harvie Wilkinson III and Diana Motz, seemed undecided but asked difficult questions of the falsely accused players’ attorney, Christopher Manning. If either Wilkinson or Motz vote with Durham, the case will end, since the third member of the three-judge panel, Roger Gregory, gave every indication of having made up his mind well before the hearing began. Indeed, at times Gregory advanced arguments that went well beyond anything that even Durham’s own attorney offered, even to the point of insinuating that the indictments of Dave Evans, Collin Finnerty, and Reade Seligmann were legitimate.

(The court uploaded the full audio of the proceedings yesterday, and I’ve included clips of some of the hearing’s key segments as links within this post. Audio links, which are in red, will take you to my personal website; click the back arrow to then return to this post.)

The two sides had previewed their arguments in the briefs; Durham attorney Michael Vatis stressed that the indictment by the grand jury shielded the city from liability and that Nifong, in his capacity as prosecutor, rather than Durham city employees made the decision to seek indictments. (Vatis didn’t explain how or why the Durham police allowed Nifong, a county prosecutor, to supervise the police investigation after March 27, 2006.) Christopher Manning, representing the falsely accused players, relied largely on Judge Beaty’s framing of the case, adding that the magnitude of wrongdoing to Durham officials justified the case going forward, at least through discovery.

Vatis did make one quite intriguing statement. After suggesting that there were other alternatives to a civil suit—administrative proceedings, perhaps a criminal investigation—to punish inappropriate behavior by the DPD, he noted that no other inquiry had found wrongdoing by the DPD. He implied that even if discovery occurred, the plaintiffs would find nothing.

Judge Motz asked the relevant follow-up question—had such inquiries actually taken place? After dancing around the issue, Vatis conceded that Durham authorities hadn’t pursued any of these alternative methods. Of course, it was worse than that—in 2007, the city leadership shut down the investigation of the DPD after one hearing, citing an insurance company’s concern that the inquiry might uncover information that would damage the city’s civil case. And now the city cites the fact that its short-circuited police investigation found nothing as a reason that the civil suits lack a factual basis.

Both Wilkinson and Motz appeared to struggle with how the magnitude and the type of wrongdoing by law enforcement made it difficult to find appropriate precedents (for either side) to guide the court. Motz was blunt in her belief that the DPD hadn’t behaved appropriately; Wilkinson pressed Vatis on the seriousness of the allegations. Neither was hostile to Vatis, but neither similarly appeared willing to accept Vatis’ suggestions that nothing much serious had occurred in this case, except perhaps for Nifong’s wrongdoing.

When Manning’s turn came, both Wilkinson and Motz worried about the broader ramifications of the plaintiffs’ position. Even if the falsely accused players had been framed, how could the court draw a line that would not open the way for federal lawsuits from any criminal suspect that thought a police officer looked at him the wrong way? (Wilkinson worried that the question here was “whether a hard case makes some really bad law.”) Manning tried to parry these concerns by noting the extraordinary nature of the misconduct in the lacrosse case, but neither Wilkinson nor Motz seemed convinced (though Wilkinson did suggest that the case should be litigated at the state level if the 4th Circuit blocked a federal suit). If the falsely accused players do prevail, however, Manning’s uniqueness-of-this-case argument probably would provide the basis.

That left the third member of the three-judge panel, Judge Roger Gregory. During the presentation by the city’s attorney, Judge Gregory contributed little. During the presentation by the lacrosse players’ attorney, Gregory participated actively, sometimes with extremely hostile questions, other times with minimizing remarks about the evidence in the case or the nature of the players’ claims.

Gregory began by mischaracterizing Dr. Meehan’s DNA report, arguing that it only said that no matches existed to lacrosse players, whereas (in the section Meehan and Nifong improperly concealed) it also said that DNA from other, unidentified males was discovered, and it implied (inaccurately) that Dave Evans’ DNA might be a match. How a finding of other males’ DNA but not that of any lacrosse players could in any way be considered consistent with Mangum’s story (that she was raped for 30 minutes by three people who didn’t use condoms, and she went almost immediately thereafter to the hospital) Gregory didn’t say. Manning seemed, perhaps unsurprisingly, rather taken aback with this line of argument.

Echoing Vatis’ argument that the case should be dismissed in part because no police officers were prosecuted, Gregory argued that a claim of conspiracy against Durham Police officers was inappropriate, because “you can’t conspire to do something that’s legal,” and that it certainly wasn’t (as he sounded as if he believed Manning was arguing) “unconstitutional to bring a weak case to prosecution.”

And in his most troubling line of questioning, Gregory very strongly implied (though he never quite came out and said so) that the Durham authorities were within their rights to try and bring the case to trial. Only “in hindsight” did any evidence of innocence emerge, he claimed. He further suggested that the fact that false accuser Crystal Mangum never retracted her charges justified the indictment. In any event, how could the police know that Mangum was lying, Gregory asked, in an almost contemptuous tone. “Does she allege they were there that night?” This is an extraordinary standard by which to evaluate allegations of police misconduct.

Gregory added that, if the suit goes forward, it could set a precedent, including in “urban” areas. Durham, of course, is an urban area.

Contrast Gregory’s oft-repeated description of the allegations in the claim—that the authorities merely moved forward with a “weak” case—with Judge Beaty’s summary of the claims (which, at this stage of the process, are supposed to be accepted at face value): that “government officials intentionally fabricate[d] evidence to frame innocent citizens, even if the evidence [wa]s used to indict and arrest those citizens without probable cause.”

With Gregory—based, at least, on both his tone and his line of questioning—as an all-but-certain vote to end the lawsuit, the only question remaining is whether Wilkinson and Motz will both vote to allow the case to proceed.

[Update, Saturday 12.57pm: Judge Gregory, it should be noted, doesn’t have a reputation for being indifferent to abuses by law enforcement. Indeed, it’s quite the reverse. To take one example: in a high-profile 2011 decision, Henry v. Purnell, he eloquently wrote of the need to allow a § 1983 action filed by an unarmed man who was shot by a police officer to proceed. (The officer unpersuasively claimed he was reaching for his taser, not his gun; the suspect was not killed.) Unlike the lacrosse case, the Henry case was a bit further along—summary judgment, rather than motion to dismiss, and so discovery had already occurred.

In Henry, Gregory made clear that, at the summary judgment stage, the court needed to view the facts “in the light most favorable” to the plaintiff’s claims as true. (His questioning earlier this week, on the other hand, seemed to be construing facts in the light most favorable to the defendants.) In Henry, Gregory accurately noted that courts needed to employ “a test that focuses on the objective legal reasonableness of an official’s acts,” and that no officer could reasonably believe that firing a gun at an unarmed man was constitutional. (His questioning earlier this week, on the other hand, implied that no officer could have realized it was unconstitutional to participate in a conspiracy to frame innocent suspects, as long as in so doing the officer accurately reported the contents of his [manipulated] case file to the prosecutor.) With these tests, Gregory had no doubt that the Henry case needed to go to a jury.

Obviously, a debate can be made about whether a police officer shooting an unarmed man in the heat of the moment or whether police officers, over a period of many months, conspiring to frame innocent men for a crime that never occurred constitutes a greater constitutional violation. But it’s remarkable to see a judge who was so certain that the victim in the first case was entitled to a court hearing seem so certain that the victims in the second did not deserve a day in court.]


skwilli said...

"And now the city cites the fact that its short-circuited police investigation found nothing as a reason that the civil suits lack a factual basis."

That's a nutshell there. God help us all.

Anonymous said...

If the case against the city is dismissed, what will it do to the case against Nifong?

Anonymous said...

"Your Honor, the reference is to American Psycho, a black comedy written by...NO, your Honor, not like a Tyler Perry comedy...a DARK, no, no, not like an Eddie Murphy movie...American Psycho is a scathing sarcastic horror fantasy that skewers rich and powerful white men by portraying the stuffed shirt protagonist engaged in murdering white prostitutes and other white women in all kinds of bizarre and violent ways, but it turns out the supposed bad guy was just dreaming the whole thing up because he was too weak and impotent to actually do something evil."

Anonymous said...

Is Gregory a Communist?

Anonymous said...

Don't be fooled by hard questions like everybody was in the case of the Affordable Care Act. Many times, the Judge will ask the hard questions of the side he's inclined to.

Anonymous said...

Thank you for your update...

Is the judge being paid off or what. If we cannot keep the police from framing us, then justice has completely failed it's people.

Chris Halkides said...

Durham and Perugia, Italy deserve each other as sister cities.

Anonymous said...

Off thread, but interesting. My son is a junior at UNC Charlotte. As part of today's celebration of Constitution Day, his Criminal Justice class hosted a presentation by Reade Seligmann and attorney Cooney. They apparently gave a fascinating talk featuring the cell phone and other evidence of the time line of the evening of the party and the DNA evidence. Mys on reports for the school paper and interviewed Reade after the presentation. The only two questions he declined to answer were: (1) how much were his legal fees and (2) what was the extent of professor retaliation or mis treatment of lax players. Reade flew to Charlotte from Atlanta (he is a law student at Emory) for the presentation.

C. Thomas Kunz

Scot Foley said...

I agree with the comment above concerning hard questions asked by judges. It's very common for judges to grill the advocates of even the side they are sympathetic to, to gauge the weaknesses of that position. Judges Motz and Wilkinson both at least seem fully aware of the extent of the transgressions in this case. It would seem, though, that Judge Gregory has a different perspective.

Either way, however the 4th Circuit panel rules, expect the losing side to request a re-hearing en banc or to file a writ of certiorari with the Supreme Court. So a negative ruling for the plaintiffs might not mean the end of the case.

Anonymous said...

Communist? You're thinking of Dick Gregory. Gregory is just a dick.

kcjohnson9 said...

On the issue of appeals court judges & questions: agree completely with Scot @1.51.

To take the most prominent recent example, think back to CJ Roberts in the health care case--the tone of his questions led many observers to classify him as a likely vote against the law.

In this instance, one reason I included the audio is to get a sense of the almost sneering tone with which Judge Gregory asked his questions. There would seem to be almost no chance of the plaintiffs getting his vote.

Anonymous said...

K.C. Thank you for your diligence in posting the long and tortured path of this case. And Hurray for Seligmann and Cooney for sharing the experience. Both admirable men.

Old Granddad (G. H. King)

Anonymous said...

I was in front of Gregory last week and have argued several other times in front of a panel he was on. His opinions are usually very favorable to Plaintiffs and criminal defendants. Asking those questions is no indication of how he will rule. He hammered me on a sentencing issue a few years ago and then wrote a dissent in my favor. The questions are hopefully a sign of interest more than anything else.

Anonymous said...

And speaking of legal maneuvering, check out this doozy by team-Duke.

"Duke lacrosse case author rebuffs subpoena for records"

Duke Prof

TCM said...

Professor Johnson, I have been a closer reader of your blog within the last few months, and an occasional reader in the past. Thank you for your incredible work on this issue.

There is a recent video on YouTube concerning sexism against male students in education that speaks specifically of the Duke lacrosse case, and references your blog and Until Proven Innocent. If you are interested, the link is below:

Anonymous said...

Professor, do you think these cases will ever actually see the light of a courtroom for consideration and decision on the actually lawsuits? I wonder.....

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