Monday, December 17, 2012

The 4th Circuit (Essentially) Gives Durham a Free Pass

[Update, Tuesday, 1.08pm: As requested from a couple of the commenters, there is a link to the opinion. And a reminder: this appeal terminated the process at its inception (before discovery even occurred). That is, the 4th Circuit held that the falsely accused lacrosse players had no federal civil rights claim. The message the three-judge panel sent was clear: in towns and cities in the 4th Circuit, it's possible to frame innocent people without incurring federal civil rights violations, provided that the police are candid in discussions with the prosecutor that no evidence exists against the innocent people (even if, at the same time, at least one police officer misleads the grand jury and violates departmental guidelines and confines a photo array or lineup to suspects); and that the police can claim the prosecutor made the decision to indict. Chilling.]

The 4th Circuit (as previously predicted, based on the tone and substance of the oral arguments) has issued a ruling that for all practical purposes ends the civil suits against Durham and associated parties.

A basic summary of the opinion and concurrences:

(1) The panel dismissed all federal claims. A two-judge majority, Judges Diana Motz and J. Harvie Wilkinson, appeared concerned that doing otherwise could permit frivolous cases to proceed and thus have a chilling effect on legitimate law enforcement activity.

(2) A two-judge majority allowed one state claim, of malicious prosecution against Gottlieb and Himan, to proceed. It’s not clear at this stage how this section of the lawsuit will play out.

(3) The panel sent a clear message to prosecutors or police officers who might be worried that they’re seeking indictments without good reason to do so: if you obtain a grand jury indictment (regardless of whether the officers tell the truth to the grand jury), you should be home free.

(4) All claims raised by the unindicted players were dismissed, and the merging of the three lawsuits simultaneously to the 4th Circuit probably helped Durham.

(5) The intersection of how the opinions were written and Judge Beaty’s previous decision to stay discovery on claims relating to Tara Levicy makes it possible that the former SANE-nurse-in-training might never have to appear under oath to justify her . . . dubious . . . conduct. But it's also eminently possible (indeed, probably more likely) that discovery against Levicy could proceed, under Count 23 of the Carrington lawsuit (which had a mixture of Duke and city defendants). This will be an issue before Judge Beaty as the unindicted players’ case proceeds. The 4th Circuit's ruling certainly calls into question Beaty’s earlier decision to stay discovery regarding Levicy as the city conducted its appeals.

(6) The falsely indicted players were hurt by the ideological concerns of two of the judges—from the right, Judge Wilkinson’s general distrust of the excessive aggressiveness of trial lawyers; from the left, the breathtaking hypocrisy of Judge Roger Gregory, who gave the impression at oral argument (an impression confirmed in his partial concurrence and partial dissent) that he could have been a card-carrying member of the Group of 88.

Judge Motz’s Decision

Speaking for the panel, Judge Motz did five things:

(1) In the most significant aspect of her ruling, Judge Motz dismissed the § 1983 malicious prosecution claim against Officers Gottlieb and Himan filed by the falsely indicted players. Why? Because Nifong, not the officers, made the decision to indict, and because the officers gave all the information about the case to Nifong.

Given the context of the case, this was a deeply troubling finding, in two respects. First, as of several days into the police investigation, DPD supervisors had placed Nifong in charge of the police investigation. The message the Motz panel sent to 4th Circuit jurisdictions, then, is that allowing a prosecutor to run a fraudulent police investigation—and then having the city’s officers stand aside as he resumes his prosecutorial role and seeks a fraudulent indictment—is a sure-fire way to avoid a federal civil rights claim. Second, we know that the grand jury that indicted the three lacrosse players (who heard from only these two witnesses) was misled—first, thanks to excellent reporting from ABC’s Law & Justice Unit; and second, thanks to an unwitting revelation from Sgt. Gottlieb in his deposition for Nifong’s ethicstrial. Apparently, then, even helping to bring about a grand jury indictment under false pretenses is enough to gain immunity from federal claims.

(2) Having found that no federal claims against city employees exist, Motz dismissed all claims against supervisory officials and against the City of Durham (except on limited grounds that seem unlikely to survive summary judgment).

(3) Motz dismissed all claims against Durham and Durham employees filed by the unindicted players. Yet her ruling didn’t discuss Judge Beaty’s somewhat unusual decision to stay discovery for former SANE-nurse-in-training Tara Levicy, on grounds that Levicy’s actions were bound up with those of the DPD, and allowing discovery to proceed against her and against Duke Hospital would be inefficient. Now that the claims against the DPD conspirators have been dismissed, will Judge Beaty allow the discovery against Levicy to proceed? Or will he find a way to excuse Levicy from being held accountable for her actions?

(4) Motz, joined only by Wilkinson, allowed state-law claims by the falsely indicted players for malicious prosecution against Gottlieb and Himan. Based on the filing, she held, and “taken together, the officers’ multiple alleged acts certainly present plausible claims of malice.”

(5) All claims against Mike Nifong remain open. But, of course, Nifong has declared bankruptcy.

Judge Wilkinson’s Concurrence

For a jurist who enjoys a sterling reputation and has even been mentioned as a Supreme Court nominee, Wilkinson’s concurrence was disappointing and at times illogical.

Wilkinson seemed less upset at what Nifong and the DPD did to three innocent people than about the temerity of plaintiffs’ attorneys aggressively representing their clients. He issued a lengthy defense of Cpl. David Addison (as he had done in the oral arguments, as well). Wilkinson characterized Addison as merely one of the many public “spokespersons (who are often given limited information by their superiors on a need-to-know basis)” who the plaintiffs’ attorneys wanted to expose “to the threat of monetary damages for expressing a departmental position in the most general of terms.” Imagine, he ruminated, what might happen to the spokesperson for a town’s local school board if Cpl. Addison were held accountable for his actions.

Here’s a sampling of the (fact-free, misleading, and inflammatory) Addison statements that so roused Judge Wilkinson’s need to defend the spokesperson: “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.” Or, “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.” Or: “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.’” Or, “We do know that some of the players inside that house on that evening knew what transpired and we need them to come forward.”

In a case in which innocent college students were falsely charged and saw their reputations trashed by most of the media, by political leaders in the city in which they attended school, by dozens of their own professors, and—yes—by an off-the-reservation Police Department spokesperson, Judge Wilkinson somehow sees Cpl. Addison as a victim in the affair?

The judge also denounced “the glacial pace at which this litigation has proceeded (we are now nearly six years removed from the dismissal of the last charges against the three Duke lacrosse players).” Yet these delays were caused almost exclusively by the City—by dragging out mediation efforts, then by fighting the opening of discovery, then by demanding months to file Iqbal appeals, then by dragging out the case even further by appealing Judge Beaty’s ruling to the 4th Circuit. The idea that the plaintiffs’ position could be criticized because of their opponents’ seemingly deliberate pattern of delay is shocking.

Finally, after including an unsubstantiated assault on the falsely accused players' character, Wilkinson reached an almost insulting conclusion: “We run the risk here of replicating in civil litigation the very maladies that plaintiffs complain infected the criminal process to which they were subjected. That is to say, individuals would be pulled into the coercive proceedings of courts when they have no business being there.”

To summarize the facts of the case again: a district attorney used the powers of the state—and the cooperation of the local police leadership and at least one police investigator (Gottlieb)—to bring charges for a crime that never occurred against three people against whom no evidence existed. But for a providential, 9-8 decision of the State Bar, the case would have gone to trial, at which it was at least possible these factually innocent people would have been convicted of a crime that never took place. Those were the “maladies” of the “criminal process to which they were subjected.” Judge Wilkinson is comparing that record to the plaintiffs’ attorneys’ filing claims against a DPD spokesperson whose inflammatory remarks fanned the witch-hunt atmosphere and the DPD supervisors who stood aside as Nifong improperly took charge of a police investigation?

He should be ashamed.

Judge Gregory’s Partial Concurrence & Partial Dissent

In contrast to the concurrence from Wilkinson—who at least went through the pretense of having an open mind at oral arguments, and who at least recognized that Nifong and the DPD accused innocent people—little could have been expected from Judge Gregory, based on his performance in oral argument.

Nonetheless—and this can’t be reiterated forcefully enough—Gregory is a judge who has a reputation for standing up for the rights of victims of governmental misconduct. What, I wonder, could have caused this graduate of Virginia State University and protégé of former governor Doug Wilder to pen an opinion that seems to wholly contradict his general approach to criminal justice issues?

According to Gregory, the court shouldn’t have even allowed the state-law claim against Himan and Gottlieb to proceed. In his concurrence, Gregory—again, a judge who normally is deeply suspicious of police misconduct—chose to function as a de facto defense attorney for Himan and Gottlieb, suggesting that in meeting with Dr. Meehan about a misleading DNA report, or putting together a photo array that wildly violated DPD procedures, or (in Gottlieb’s case) giving misleading testimony before the grand jury, they were merely “doing their job and investigating a case assigned to them, in collaboration with the prosecutor.” He did allow that the photo array was “not perfect,” but didn’t see anything particularly problematic with it as a tool “to identify a suspect to further investigate Mangum’s claims, which they did not know were false.”

At times, Gregory went even further than Nifong did in justifying the investigation. For instance, he cited the McFadyen e-mail as a possible justification for the criminal investigation—raising the question, of course, of why McFadyen wasn’t indicted if Gottlieb and Himan could have viewed this e-mail as somehow establishing criminal intent.

And how did Gregory describe the case overall? “In retrospect,” he suggested, “it may be clear to some that Mangum’s accusations were baseless.” He clearly is not among the group to which this obviously “clear” case is, in fact, clear.

Imagine if someone of Judge Gregorys indifference to fair play and even-handed justice had ever been assigned to the case as trial judge.

Tuesday, December 11, 2012

Ken Burns' "History" Lesson

[Update, 12 Dec., 2.55pm: Yet more legal commentary from filmmaker Burns, this time on video from an appearance at the 92nd Street Y. The relevant remarks begin at 6:56 on the video.
These comments reveal (in the most charitable possible interpretation of filmmaker Burns) a figure spouting off on a case about which he knows nothing.

First: “We” didn't “fire” Mike Nifong. Nifong was disbarred by the North Carolina State Bar, after a public ethics proceeding that resulted in detailed findings of fact regarding Nifong's ethical misdeeds. If filmmaker Burns has a complaint with the performance of Lane Williamson's panel, he has yet to specify it. It does not appear that, in general, filmmaker Burns believes that unethical prosecutors should go unpunished; why, then, is he apparently so troubled by Nifong's fate?

Second, Burns appears to lament that “we sort of went crazy at how bad we'd been in accusing them.” Again, Burns' use of the royal “we” is puzzling. (To the best of my knowledge, he has never apologized to the lacrosse players.) Many people—the Group of 88, for starters, or entertainers such as Wendy Murphy or Nancy Grace—proudly, even defiantly, refused to apologize for how they mistreated the lacrosse players. Other institutions that rushed to judgment—the New York Times, the Herald-Sun—issued mealy-mouthed apologies trying to shift the blame to other parties, hardly examples of going “crazy” at how “bad” they had been. Still other members of the rush-to-judgment crowd—the likes of Selena Roberts or John Feinstein—tried to avoid apologizing altogether by . . . misremembering . . . what they had said or written in the spring of 2006. Still other commentators—such as the various sportswriters linked here—coupled acknowledgement of the dismissal of charges with continued character assaults against the falsely accused students. The City of Durham, obviously, has never apologized to the falsely accused players. It's true that a handful of people who rushed to judgment—Ruth Sheehan, Jemele Hill—issued what clearly were genuine apologies. But these statements stood out because they were so atypical of the general reaction.

Third, this appearance marks at least the third occasion in which filmmaker Burns described the process of being arrested for a crime that never occurred, suspended from school for two semesters, and seeing a Newsweek cover containing the students' mugshots under the title of “Sex, Lies, and Duke” as being an “inconvenience.” On this occasion, he slightly lengthened the time of the “inconvenience,” from a few weeks to two months.

Finally, note that in the span of 20 seconds, Burns found the time--twice, no less--to identify the falsely accused students' race.]

[Update, 11 Dec., 4.22pm: It turns out that his Phoenix interview wasn’t the first occasion in which Burns had referenced the lacrosse case through the “inconveniencing” lens. Here he was in a November interview with the Collider. Mused the filmmaker,
Do you remember in 2006 the white Duke lacrosse players that somebody had falsely charged?  Remember that?  Do you know what happened?  The prosecutor was fired.  The prosecutor was disbarred.  The prosecutor went to jail for inconveniencing for a few weeks these white kids from Duke.  I rest my case.
It’s not clear to me what “case” Burns was attempting to make. Mike Nifong went to jail (for a day) not for “inconveniencing” anyone. He went to jail, for criminal contempt, because he lied to a judge about material evidence. Does filmmaker Burns believe that prosecutors lying in open court counts merely as an “inconvenience” to a falsely accused suspect, as opposed to an assault on the ideals of justice?

Nor is it clear how filmmaker Burns concluded that Nifong persecuted the lacrosse players “for a few weeks.” Each of the three was indicted. For Reade Seligmann and Collin Finnerty, the period of indictment lasted just under a year; for Dave Evans, just under 11 months. In what universe does 11-12 months constitute “a few weeks?”

At least, I suppose, Burns should be praised for referring to college students as “kids” rather than “boys.”]

Filmmaker Ken Burns is almost a caricature of the politically correct intellectual, but his comments in a recent interview with the Boston Phoenix nonetheless were jarring.

Burns was speaking of his new film project, a study of the Central Park Five, a group of minority teenagers accused of raping a Central Park jogger in one of the highest-profile cases of the era. Several of the suspects confessed to the crime, and each was convicted and sent to prison. (Those who confessed subsequently retracted their confessions.) In 2002, a prisoner named Matias Reyes confessed to raping the jogger; when his DNA matched that from the rape kit, the Manhattan district attorney, Robert Morgenthau, voided the Central Park Five’s convictions.

In the Phoenix interview, Burns was asked about the similarities between Central Park and the case of the West Memphis Three. Instead, wholly unprompted, Burns provided this nugget of contextual insight: “You can also compare the Central Park Five to the Duke University lacrosse players, three rich white boys who were mildly inconvenienced by rape charges that proved to be false. In no time the prosecutor of that case was fired, disbarred, and put in jail, and the three ended up getting a huge settlement.

Since Burns chose to make the comparison—as he expressed hope that the . . . honesty . . . of his work would prompt the NYPD to admit error in the Central Park jogger case and (“from your lips to God’s ear”) win him an Oscar—his remarks deserve consideration.

“The Duke University lacrosse players, three rich white boys”: Imagine the outrage from people like filmmaker Burns if a prominent filmmaker had publicly referred to three African-American college students as “boys.”

“ . . . were mildly inconvenienced by rape charges that proved to be false.” Presumably, filmmaker Burns has never been arrested for a crime he didn’t commit (much less a crime that didn’t occur). Nor, I suspect, was filmmaker Burns ever suspended two semesters from college for a crime he didn’t commit (much less a crime that didn’t occur). Nor, I suspect, did filmmaker Burns see his mugshot plastered on the cover of a national newsmagazine—or heard himself compared to Hitler, or his parents to child molesters—for a crime he didn’t commit (much less a crime that didn’t occur). Yet to filmmaker Burns, these experiences (and more) constituted a mild inconvenience. I wonder what filmmaker Burns would consider a major inconvenience, much less something more significant than an inconvenience.

“In no time the prosecutor of that case . . .” Actually, Mike Nifong was re-nominated and re-elected, in large part because of his handling of the fabricated claims. He didn’t suffer professional difficulties for nearly a year after his misconduct. To filmmaker Burns, perhaps, nine months constitutes “no time.” But I would think that someone who makes his living in part through use of words would be more accurate in his description.

“ . . . the prosecutor of that case was fired, disbarred, and put in jail.” It’s not clear exactly what filmmaker Burns’ complaint on this front is. Does he believe that Nifong should not have been fired or disbarred for his myriad, and massive, ethical violations? Does he believe that if a prosecutor lies outright to judges on materially important matters, the prosecutor shouldn’t be held in contempt of court? Or is he suggesting that the prosecutors in Morgenthau’s office committed prosecutorial misconduct and should have been fired and disbarred? If so, what evidence does he have to substantiate such an inflammatory claim?

“ . . . the three ended up getting a huge settlement.” Currently, the falsely-accused players are awaiting a ruling from the 4th Circuit; they have received no settlement from Durham or Nifong at all. They have, obviously, received a settlement from Duke, for an undisclosed amount. Does filmmaker Burns have information that the amount was “huge”? If so, from whom did he obtain this information: has Duke violated the settlement’s confidentiality clause?

Apart from the obvious difference—in the Central Park case, a crime occurred; in the Duke lacrosse case, the only crime was the filing of a false police report—there was one intriguing point of comparison between the two cases. In the Central Park case, as events were unfolding, the African-American press, most prominently the Amsterdam News, did not shield the identity of the woman who was raped, Trisha Meili. The News argued—not unreasonably—that since the suspect’s identities were revealed, giving the accuser anonymity tilted the scales against the accused.

In the lacrosse case, of course, the News joined other publications of the black press (and all major newspapers and TV stations) in shielding Crystal Mangum’s identity until the attorney general branded her charges false. (Even then, the Herald-Sun and the New York Times resisted naming Mangum for several months.)

Burns doesn’t appear eager to explore this obvious hypocrisy in his film, however: shining a harsh light on publications like the Amsterdam News wouldn’t fit his agenda.