Attorney Alex Charns Interview

Because of Durham Police misconduct during the Duke lacrosse investigation, Durham City faces the likelihood Duke students wronged by the police will bring legal actions against the city for damages inflicted on them.

Last Friday, I interviewed (emails) Alex Charns, a Durham attorney and one of North Carolina’s leading litigators in the areas of civil rights violations and police misconduct.

Charns has successfully represented a number of clients in cases involving misconduct by Durham police. He currently represents one of the lacrosse players who was not indicted.

My questions are in italics; Charns’ answers are in plain.

JinC – Everyone I talk to says the city’s in a very tough spot as regards possible suits which may be brought against it. Since last May, you’ve urged the city to investigate certain police conduct and apologize for it. The city didn’t do any of that. If it had, would it have lessened its current liability?

Charns – Yes, definitely.

J – Why?

C – If DPD , for instance, had launched an Internal Affairs investigation of violations of its own procedures during the Apr 4 “no wrong choices” photo lineup with the accuser; and taken some steps to punish the officers involved, that would be evidence DPD and the city didn’t just stand by and do nothing when policies and procedures were violated.

The same would hold if city manager Patrick Baker had investigated, and there had been consequences for those who violated policies and procedures, as well as apologies to the students.

Instead of any of that, the city’s denied wrongdoing. By refusing to admit misconduct by some Durham officers and their supervisors, it’s put itself in just about the worst possible position it could be in today.

J – If the city had done what you’ve been asking it to do, what would we be looking at now?

C – The students would still have grounds for a suit against the city. But the city would be in a position to argue that it wasn’t indifferent to what happened; and that it had acted to stop it. That could significantly reduce the city’s liability.

J – How would any steps taken by the city affect the individual officers who conducted the lineup?

C – They would bear responsibility as individuals for what they did, as they do now. But they couldn't argue, “No one told us we shouldn't have done it. No one reprimanded us,” which they can argue now, and therefore shift responsibility to DPD and the city.

J – Are there other things the city could have done to both “do the right thing” by the Duke students and to limit the extensive liability it now appears to bear?

C – Yes, the city could have admitted that their employees violated city policy by using a fish-in-the-barrel identification procedure, by refusing to consider the possibility that the players were innocent, by refusing to look at documentary evidence that countered their belief in the players' guilt, and by e-mailing and distributing posters stating that the lacrosse team members were either gang-rapists or co-conspirators.

As it stands, it's no secret what the investigators did and didn't do and the city - at the highest level - approved of the wrongdoing in an official report.

J – Final question: I know evidence used during a trial involving a civil suit can later be used in a criminal trial. But suppose attorneys for the three young men take depositions prior to a civil trial and there’s subsequently a pre-trial settlement with a stipulation the terms of the settlement are not to be disclosed. In that case, can evidence taken during the depositions still be used later in a criminal trial?

C – Yes. The way that would work is a judge could find that the sealed records were relevant to the administration of justice and unseal them.

J – Thank you
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In May 2006 I first posted concerning Charns’ efforts to get DPD and the city to take some action: “Duke lacrosse: What about the posters?”

Since then I’ve posted more than 50 times concerning his efforts. This post from April 2007, “ATTORNEY: WHERE ARE THE APOLOGIES?”, concerns some of what Charns spoke about in the interview. It also contains links to related posts.

I’ll post again in a few days regarding DPD and the city’s actions and inactions in the Duke lacrosse case.