Saturday, September 15, 2007

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.

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:


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."


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.


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.


Anonymous said...

John, you sue the word "libel" multiple times in this post, but I think you mean "liable" (but I'm a med student, not a lawyer, so I could be wrong). Thanks for the updates!

Jim in San Diego said...

The City has to consider the following costs:

1. The costs of defense. A case like this can easily cost several million dollars to defend, regardless of the outcome.

2. If the plaintiffs base their claims on discrimination against the Duke victims on the basis of their gender or race, the plaintiffs may recover their own attornys fees and costs. These will be well into the seven figures for a case like this.

3. A number of individuals may be subject to personal liability for their actions, depending on how the case is pleaded, and where the facts go.

4. The exposure for a number of people will be embarassing and dangerous, since federal investigators are considering a criminal complaint.

My vote: do not settle. Reason: While there might be justice in paying money to the Duke victims, it would assist those who need it more - poor minorities - to have the problems in the Durham P.D. especially exposed and, hopefully, addressed.

Anonymous said...

I agree with Jim in San Diego. Although I supported the guys in the rape charges, I think this is greedy - go to court.

Anonymous said...

I also believe it should go to trial, but for much different reasons:

1) The plaintiffs should sue for something on the order of $300 million, not the amount they said they would settle for. This should insure that it will see the inside of a courtroom.

2) Just as the dense denizens of Durham hoped for the pseudo-rape case to go to trial on the probable chance that SOMEONE would hang the jury with a demand for a guilty verdict, so too should those who believe in trying to bang some sense into this city hope that most of a civil rights jury will recognize the failures in the Durham legal process that need addressing. The people of Durham are still in denial, and by inference a similar feeling exists in a lot places. A trial on this issue would gain a lot of needed national attention to many of the weaknesses of our legal process.

3) There are a lot of individuals who need to be brought to account, and a settlement simply won't do it. Besides, it should be fun when the heat gets turned up watching to see who slithers into the U.S. Attorney's office willing to serve as a witness if the civil suit brings more heat on the feds to follow through.

Anonymous said...

Jim in San Diego brings up some excellent points..particularly the cost of litigation (on both sides) and the personal liability of the individual officers.
As a person who has been involved in litigation involving police departments (I am not an attorney), neither side wants to go to trial because of the costs involved, the potential of embarrassing behavior being exposed, and the fact that juries can be so unpredictable.
Sadly for some people, the case will not be about guilt or innocence, but a business decision between the attorneys on both sides, and it will be settled for a lot less than 30 million.

JWM said...

Dear Anon @ 6:35,

Thanks for the heads up re: "libel."

I'm always liable to make that kind of mistake.

I found two of them.

They're now corrected thanks to you.

Welcome to the JinC editorial board.

And again, thanks.

Dear Jim in San Diego,

You are adding a lot to this blog.

I hope you keep commenting.

Dear Anon @ 7:58,

My reading of Jim's comment is that he hopes the students go to court because he thinks they'll win a big judgment which will get the police and prosecutors' attention here, and that will make them less likely to abuse the people they deal with who are disproportionately poor and minority.

Jim, as I understand him, thinks those folks will be the biggest "winners" if suit judgments cause police, prosecutors and judges to be more just.

Take another look at Jim's comment. Then please let me know what you think of what I've just said.

Thank you all for commenting.


Anonymous said...

John, you are too kind. I think 7:58 is a fraud (i.e. never supported the players). "Greedy" is the new "something happened," "they're no choir boys" yada, yada among the enablers.

Anonymous said...

8:46 I think you are wrong and a lousy mindreader.

Anonymous said...

John - I understand what JISD is writing. I do not believe the folk in Durham want outside help (let alone white) in changing their city. If they wanted the city to be different, they would have changed it themselves. In my opinion.

Anonymous said...


At the risk of repeating myself, let me say again that this is payback time for the three lax families.

Call it what you will, revenge, retribution, settling the score, justice, whatever... The attorneys they have retained are light years ahead of what Durham has. They are not here to settle whatever anyone thinks.

They are here to punish.


AMac said...

A couple thoughts --

(1) "Gottlieb wrote in July 2006 that accuser Crystal Gail Mangum had described three people..."

When Gottlieb's typed notes appeared in July 2006, they were undated--one more strange practice of the DPD. Was an actual date of writing ever established (e.g. by Gottlieb's testimony) for these magical notes?

(2) Everyone focuses on the money in the players' demand. $30m is too much, they're greedy, it's insufficient, etc.

If Durham was on its game, they could box in the players as follows:

"Our final counteroffer is $5 million. However, we agree to all of your non-monetary demands--improvements in police procedures, videotaping of interrogations, support of statewide initiatives and the like."

If the players refuse, imagine the hue and cry! "Their so-called reforms were just window dressing, the greedy so-and-sos!"

If the players cave, the settlement would be 90% covered by Durham's insurance policy!

Why, it's such a clever trap... it's almost as if the Duke Three should have foreseen it...

(3) An astute regular at DiW keeps repeating one word: Discovery. If the case goes to court, it will start with documents being subpoenaed and depositions being taken.

Hmmm. I expect a lot of the remaining questions about who-did-what will find answers during the process!

Why, if the Duke Three believed that it is about the truth... it's almost as if they would demand a sum that Durham wouldn't agree to...

Anonymous said...

They cannot settle - there would be no political cover. If they go to court and lose they can say they tried but lost - it was the court's/jury's fault. It they settle there is no where to hang the blame.

Duke1965 said...

Some thoughts/predictions:

1) If the case goes forward, Durham's lawyers will be selected by the insurer (AIG), not Durham, city officials, under the terms of the insurance policy. AIG will hire top-flight lawyers, not yokels, as some have posited. The playing field in terms of legal representation will be relatively level.

2) If there is a jury trial, there will be no jurors from Durham County, because of the very issue some in Durham have already raised.... the suit would affect Durham jurors directly as taxpayers, resulting in a conflict of interest.

3) If there is no early settlement, the real battle will be in discovery, and it will be nasty. For example, if discovery shows that the city has destroyed evidence (very likely, in my opinion), the Federal rules mandate an inference against the defendants. In other words, the destroyed document can potentially hurt the defense more than having the actual document......... in today's digital world, it's becoming increasingly difficult to completely hide evidence..... computer forensic experts will be working overtime.

4) As Jim has said, the legal costs will be extremely high....... certainly in seven figures on each side.... the challenge for the plaintiffs will be in trying to predict whether a North Carolina jury would award an amount significantly in excess of the 5M insurance coverage........ in other words, is the suit sustainable as a business matter at the end of the day...........

5) There could well be an ancillary legal battle over venue... for example, the plaintiffs might try to have the case moved out of North Carolina entirely, into a "neutral" Federal District........

Anonymous said...

Re Duke65 comments:
I agree completely with the conclusions, but I wonder if anything could be gained by changing the venue to another federal district court outside North Carolina. If Durham officials think anybody outside their little backwater would be sympathetic to their obvious lies, they're in for a very rude awakening. The discovery aspects have me salivating!

Anonymous said...

The insurer should just write a check for $5M, less the $500k deductable. In the end, this will be cheaper for them than fighting and they will very likely come to this conclusion. (BTW, doesn't $5M seem like a low amount of coverage?) This would leave Durham holding any bill for a defense.

The city officers who are going to be voting have to choose between paying $25.5M of other people's money or risking exposing themselves to criminal charges. If they see no risk there, they may decide to fight. If they do see some risk or want to cover for those who are clearly at risk, they may decide to sign-off on the offer.

I don't see the voters of Durham holding anyone accountable for settling. They really ought to be holding people to account for creating this mess in the first place -- but obviously, this is unlikely to happen. Instead, I see political leaders trying to exploit this however it plays out. In the Wonderland that is Durham, I can imagine any number of arguments:

"Vote for me, I'm really against paying but there was a risk of having to pay more in an award."

"Vote for me, I'm making a thinly veiled emotional appeal, based on identity politics. Look how inequitable things are when people who didn't do jail time get more than those who do. It is all because of the man and I don't look or talk like the man, right?. That we had to pay just shows how we are still being held down (but not by ourselves)."

"Vote for me, after all what other choice have you got."

It is also possible that there will be some external political pressure to settle -- it all depends on who is afraid of more sunshine and how to what extent. There has been plenty of time to destroy evidence, but people may yet decide to talk...

gs said...

One unanswered question (we saw this in the WTC lawsuits 1 or 2 attacks) is the insurance carrier on the hook for 1 instance or 3. If so Durham could be covered for up to $15 Million. The law files charges against individuals not cases, so 3 individuals 3 incidents.

Also poster, notes, Line up, Offical everything is OK in DPD report, 1 event or multiple events.

The insurer could be on the hook for $15 million.. Durham and the insurer will be suing each other, just wait.

Duke1965 said...

This is going to be really interesting. There's no question that the handling of the prosecution against the lacrosse players was driven by political agendas. It will be interesting to see if the defense by Durham in the civil lawsuit is driven by political agendas, instead of by fact-based hardheaded decisions to minimize the ultimate award against the city, and ultimately the taxpayers. This could get strange in a hurry..........

Anonymous said...

John, I believe you are doing great work. I read your blog daily. Correct me if I am wrong on this because I have no idea for sure but when the N&O says they do not use anonymous sources, could it possibly mean anonymous to them. Protecting someone's identity, as you do for yourself in your blog, is a different thing altogether than someone calling in anonymous tips.

While I believe the N&O should take some blame for the hoax, I think you harping on the anonymous source issue (if my thought above is correct) is one you should let go. If I'm wrong, keep on keeping on.

Anonymous said...

I believe the City of Durham will settle (likely for something less than the $30 mil, but more than $5 mil). In doing so, the City will ask to shield all involved (The DPD, etc..). The DPD is likely pressuring the city to settle, they stand to be devastated in discovery. Remember, tapes were "accidently erased", photo line-ups were rigged, the police were present at DNA securities when it is fairly obvious that agreements to withhold DNA evidence was discussed, the police entered the Duke dorms AFTER the players had attorney's to question them. Gottlieb has a history of targeting Duke students, and of course, the creation and distribution of the vigilante poster will be a very interesting discovery item.

Add to the fact that the attorney's on the offense are stellar, have huge resources, and can also inflict civil pain on many individuals, and you have a City that will settle.

(also in San Diego !!)

M. Simon said...

Discovery could aid in bringing criminal charges.

In that respect Nifong's one day is salutary.

As to "what will Durham do?"

Something stupid.

Ralph Phelan said...

Anonymous 9:46 PM said...
"I do not believe the folk in Durham want outside help (let alone white) in changing their city."

Clearly. Which is why they need to be forced to change whether they want to or not.

Anonymous said...

The old "you can lead the horse to water....." This is not post War occupied Germany and Japan. This is an American City - The Insurance companies will have their own stellar lawyers.

LarryD said...

And (as has been pointed out on Durham-in-Wonderland) if the insurer can prove that the suit is the result of illegal actions, then the insurer is off the hook.

So if the case goes to court and Durham loses...