As I noted Monday, the Supreme Court has declined to hear
the falsely accused players’ appeal of the 4th
of most of their case. On the one hand, the decision wasn’t surprising: (1) the
Court doesn’t take many appeals; and (2) the politics of this appeal were
particularly difficult, since judicial liberals tend to be more favorably
inclined to civil rights claims—but as Judge Gregory demonstrated at the 4thCircuit
, it appears that at least some judicial liberals are extremely hostile
to this particular group’s civil rights claims.
On the other hand, however, the decision was extremely
disappointing and at least a little bit surprising, in two respects. First, it’s
not as if the Court is overflowing with critical cases this term—its first week of the session featured two cases (Madigan
) that never should have reached the Court in the first place.
Second, it’s worth reiterating the breathtaking precedent
that the Court allowed to stand. From here on out in the 4th
Circuit, there’s no federal cause of action against a town or city when the
municipality’s police department: (a) turns over a police investigation to a
local prosecutor; and (b) stands aside as that prosecutor and police officers
manufacture evidence with which to indict innocent people for a crime that
never occurred—provided that (a) the police are perfectly candid with their
co-conspirator (the prosecutor) that there’s no evidence on which to base the
indictment; and (b) a grand jury returns indictments, even if, as occurred in
the lacrosse case, the indictment resulted from misleading or outright false
testimony from one of the police officers.
The dismissal means that a host of questions are likely to
remain permanently unanswered. That list includes the following:
(1) Who in the police department (or city government)
allowed Mike Nifong to assume personal command of the police investigation?
(2) What precise interactions occurred between the Durham
and Duke police departments?
(3) What precise interactions occurred between Nifong, the
DPD, and former SANE-nurse-in-training Tara Levicy? (Levicy, by the way, is currently working
home state of Maine, where she notes her particular interest in “women’s
(4) Who gave Cpl. David Addison the information that he used
for his fact-free, race-baiting March 2006 public statements? Why was he not
subsequently disciplined for his statement?
(5) Who in the DPD made the decision to involve Sgt.
Gottlieb in the investigation?
(6) Why was Sgt. Shelton removed from any involvement in the
(7) Did any backchannel discussions occur between Durham
authorities and the Duke administration?