This continues N&O’s 9/15 Suit “recap:” My take which was posted yesterday. If you’ve already read yestersay's post, you may want to skip down to below the double star line.
I pick up there from where I left off yesterday with, as yesterday, the N&O reporting in italics and my comments in plain.
The Raleigh N&O’s Sept. 15 Durham News section contains a story:
I want to “walk” through the story with you. The story text is in italics; my comments are in plain.
About half way through the story, I’ll stop commenting. Tomorrow I’ll comment on the rest of the story. But I’ve included the whole story in this post for your reference.
I think N&O reporter Matt Dees has done a good job reporting a story that includes a lot of material dealing with some very complex issues.
I look forward to your comments. I’m betting some of you will point out things neither Dees nor I mention. We should wind up with a thread that “adds to the story.”
Now let’s begin: ----
Lawyers for the three former Duke lacrosse players once accused of rape have given the city until early next month to either pony up $30 million or face a federal civil lawsuit, according to sources with knowledge of the negotiations who requested anonymity.Anonymous sources. So much for N&O reporter Joe Neff’s claims May 22 at the National Press Club that the N&O has a policy against the use of anonymous sources and never used a single anonymous or unnamed source (Is there a difference?) during all its Duke lacrosse reporting up to that date.
Attorneys Barry Scheck and Brendan Sullivan Jr. told city leaders in a meeting last week that it was a take-it-or-leave-it offer, though many legal experts say few things in civil litigation aren't subject to negotiation.Attorneys not involved in the possible suits (I’m not an attorney) say the suits will almost certainly be based not just on what was done to bring the charges, but on what has been done subsequently to cover-up the attempted framing of the players.
The settlement also would require the city to create an independent commission to review complaints about police involvement in the case and push state leaders to enact other reforms, such as mandatory videotaping of identification procedures.
The settlement demands were widely reported last Friday, initially attributed to unnamed sources familiar with the negotiations between the city and the players' lawyers. City officials have refused to confirm the reports, but they have not disputed any of the details.
If no settlement is reached, lawyers for former players Dave Evans, Collin Finnerty and Reade Seligmann indicated they would sue under a federal statute claiming that the city violated their clients' constitutional rights by bringing rape charges later deemed unfounded.
The attorneys all stress the city has never officially acknowledged that what’s been done was wrong. It’s thereby, according to the attorneys, continued a “pattern and practice” of “abuse of process” which began in March 2006 and continues at present. That will make it more liable if suits are brought.
The city is regarded as vulnerable to the lawsuit in three key areas:Two important points here:
* The April 4, 2006, photo-identification procedure, conducted in violation of city policies, which led to indictments in the case.
* Discrepancies between hand-written notes taken by police Investigator Benjamin Himan and typewritten notes submitted months later by Sgt. Mark Gottlieb. Gottlieb wrote in July 2006 that accuser Crystal Gail Mangum on March 16 had described three people who fit the characteristics of the three indicted players. Himan's notes, written the day of the March meeting with Mangum, had offered three very different descriptions.
* A CrimeStoppers poster released by police shortly after the initial rape allegations. It said a woman "was sodomized, raped, assaulted and robbed. This horrific crime sent shock waves throughout our community."
1) Durham City maintains CrimeStoppers is an independent organization for whose actions it bears no responsibility, and that the police release of the poster was not DPD approved.
Those claims will surely be disputed by the players’ attorneys.
What is indisputable and a key area of the city’s vulnerability are the actions of DPD Cpl. David Addison who, between March 24 and 28, repeatedly told the public about a “horrific crime,” “really, really strong evidence,” and “a wall of silence.” All lies. None were ever disputed by Addison’s DPD supervisors or city manager Patrick Baker. (Durham has a city council –city manager form of government. Therefore, Baker is the city’s highest executive officer.)
2) Attorneys tell me the city is also very vulnerable because of what they say the courts refer to as “the reasonable, trained officer” standard against which the actions and inactions of certain Durham police officers will be judged as well as what, if anything, their supervisors did when they learned of the officers’ actions and inactions.
As it's been explained to me, how a court and possibly a jury will look at what
“ reasonable, trained officers” should be expected to do ought to be a major area of concern for both the individual police involved and for city leaders.
In terms of the city’s vulnerability – really liability – in this area, every attorney I’ve talked to has said Durham Police chief Chalmers’ report saying the police did nothing wrong in the Duke lacrosse “investigation” and Baker’s signoff on it, put the city squarely on record as saying it was satisfied DPD’s officers acted as the city expects “reasonable, trained officers” to act.
“Chalmers’- Baker is a big, big problem for the city if these suits ever go to court,“ one attorney said. “ A federal judge or jury isn’t likely to see what Gottlieb did as what a “reasonable, trained officer” would do. And while Gottlieb may be held to some liability for what he did, a judge or jury is going to look at the city and say, 'You knew about what he did and you never said it wasn't OK. So you’re big-time liable, Durham.'"
Folks, I’ll pick up my commentary tomorrow. It’s your turn now.
N&O story continues: ----
If the city decides to agree to the settlement demand, the $30 million would average out to about $142 per Durham resident. The city's liability insurance covers it up to $5 million.A couple of items:
The $5 million coverage for a city Durham’s size (pop. about 210,000) seems very low to me.
The local media haven’t reported on the amount of coverage cities of comparable size have. Nor have local media reported on how the rate Durham, with a $500, 000 deductible, pays compares to rates paid be cities of comparable size whose policies have the same deductible.
I hope a knowledgeable reader or blogger takes a look at these matters and comments or posts.
Folks, please let me know if you see anything relating to the city’s coverage and what we’re talking about here.
And now back to the N&O:
What we don't know:The “word on the street” is that the city has decided to fight the suits. And it's coming from people who are usually right about most things.
WILL DURHAM TAKE THE SETTLEMENT?
City attorneys are weighing the strength of the players' case, but there are indications that the city won't settle for $30 million.
I have no inside information. I just know enough to flash: “caution.”
In situations such as this one, decisions are subject to change. So my attitude is wait-and-see.
It’s also important to remember that decisions regarding civil suits may soon be influenced by either a state or federal investigation or, attorneys tell me, possibly by both, looking into what is now an almost 18-month-long process that very likely involved criminal actions intended to first, frame the players, and then, cover-up the framing, something that continues to this day.
I can tell you what my response will be if the day comes when it’s absolutely certain the city will fight the suits thereby making it possible for the public to learn more of what was done: “Dear Old Durham, you’ve made my day.”
Elected city leaders say they already are feeling pressure from residents not interested in paying a high-dollar settlement.It’s interesting to consider some of the things Bell is doing here.
"They think it's ridiculous," Mayor Bill Bell said.
"People have heard there was a settlement with Duke. [The players] didn't spend any time in jail, didn't go to trial and now they're giving demands that could affect people's pocketbooks as taxpayers."
First, he presents himself as a mayor who listens to the people. What’s more, he gives voice to what he says he hears people are saying “about a settlement with Duke.” He notes the players didn’t spend any time in jail, didn’t go on trial, etc, etc.”
What Bell’s says people in Durham are telling him is what some people here are saying.
But there are other people here speaking out and Bell isn't quoting them.
They're people outraged by what Bell, Baker and others have done and failed to do since Crystal Mangum and the Raleigh News & Observer teamed up to tell us a pack of lies. They’re folks who are asking what was going on all those months; and why didn't any of our city's leaders do anything about it except let it continue?
Do look for the answers to those questions in the N&O.
Bell’s remarks sound like those he might deliver when the endorsement committees of the Durham Committee on the Affairs of Black People , the People’s Alliance, The Independent, and Bob Ashley’s Herald Sun ask him: “Your Honor, what do you think about these suits?”
In case you’re new to Durham, the two political interests groups and the two newspapers I just mentioned all worked hard to help elect Mike Nifong last November.
HOW VULNERABLE IS THE CITY?That’s an easy question: VERY, VERY.
Individual police officers can be held responsible for misconduct, but a higher legal standard must be met to find an entire city liable.ALL of the attorneys I’ve talked to have pointed to Baker-Chalmers as proof the city’s highest officials signed off on what the police did.
Under federal law, plaintiffs would have to prove that the city exhibited a "pattern and practice" of violating people's constitutional rights or that top city leaders directly condoned the violation of the players' rights.
Some attorneys have pointed to the report issued by City Manager Patrick Baker and then-Police Chief Steven Chalmers earlier this year, which largely defended the department's handling of the case, as proof that the city signed off on police action.
They also point to Deputy Chief Ron Hodge’s public statements about strong evidence of guilt and DPD’s making no notable mistakes in the last five years as further evidence that what was done to the players was part of a “pattern and practice” of violating the players' rights.
Otherwise, why wouldn't Hodge have objected to what his department did? And why would Baker have selected Hodge as a finalist for Police Chief except that Baker felt Hodge was doing a splendid job of making sure DPD followed its "pattern and prectice?"
The sttorneys say more on the matter. I’ll get to some of it in another post.
But the report did not address the discrepancy between Himan's and Gottlieb's notes or the CrimeStoppers poster.N&O reporter Dees, who wrote a story the previous day concerning a meeting Bell and Baker had with N&O editors and reporters, is right as regards the report not addressing discrepancies between Himan’s notes written at the time of the events and Gottlieb’s “straight from memory” notes written four months later.
Dees is also right that Baker-Chalmers doesn’t address the CrimeStoppers poster. For that matter, it also doesn’t mention Addison’s many false statements regarding a crime having been committed for which there was strong evidence and about which the players were “stonewalling.”
But Dees leaves it at that. Many readers may threfore conclude that by not mentioning certain matters, Baker-Chalmers helps the city in terms of the impending suits.
But that’s not so according to all the attorneys I’ve spoken to.
They say that by leaving out any mention of the Himan-Gottlieb discrepancies, the CrimeStoppers Wanted poster, and Addison’s very public and repeated lies as DPD spokesperson, Baker-Chalmers actually strengthens the victims’ already very strong claims against the city.
One attorney asked rhetorically: “What better argument could you have for those things being “pattern and practice” than Baker and Chalmers not even bothering to mention them?”
An attorney who was standing by added: “No judge or jury’s going to miss that.”
Folks, I’m going to end here.
Partly that’s because this “continued” part of the post is getting long; and partly it’s because I want to really cast some “light” on the next part of Dees’ story:
Chalmers contended that the April 4, 2006, photo procedure that led to identifications of suspects wasn't in fact a lineup, but was merely intended for Mangum to tell investigators who were potential witnesses.I’ll be back tomorrow with a separate post on just that one sentence.
Then after that, I’ll post again concerning the last part of Dees' story.
The first part of N&O’s 9/15 Suit “recap:” My take has led to fine comment thread. I hope you read it if you haven’t already.
In a few minutes I’m going to leave a message at that thread encouraging people to “continue the conversation” on the thread of this “continued” post.
I look forward to your comments and hope you're back tomorrow.
The last part of Dees' N&O story follows.
HOW STRONG IS THE PLAYERS' CASE?
The type of civil lawsuit threatened by the players is getting increasingly hard to win, said Luke Largess, a Charlotte attorney who handles many civil rights cases.
If the players sued for $30 million or more and won, it would be one of the largest judgments against a city for police misconduct in U.S. history.
But it's questionable whether a jury would determine their suffering was worth such a high price.
While the national media coverage exposed them to public scorn at the outset of the case, much of that same media coverage has subsequently shifted focus toward their innocence.
And some people have expressed concern that people who spend years of their lives in prison for crimes they didn't commit get much less than the players are seeking.