N&O’s 9/15 Suit “recap:” My take

The Raleigh N&O’s Sept. 15 Durham News section contains a story:

Lawsuit threat revives lacrosse questions

The story is described as a “recap” of recent events “on the lacrosse case front.”

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.

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.

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 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:

* 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."

Two important points here:

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.

John
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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.

What we don't know:

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.

Elected city leaders say they already are feeling pressure from residents not interested in paying a high-dollar settlement.

"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."

HOW VULNERABLE IS THE CITY?

Individual police officers can be held responsible for misconduct, but a higher legal standard must be met to find an entire city liable.

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.

But the report did not address the discrepancy between Himan's and Gottlieb's notes or the CrimeStoppers poster.

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.

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.