First, the usual disclaimer -- this is not a blog about the Duke lacrosse case, or one that even touches on it as usual practice. But we'll tackle news about the case, particularly in the current Federal civil rights suit, in the vein of analyzing politics and governmental news here in the Bull City. With that:
There's been plenty said about the case on the Internet and the blogosphere (including some examples from Barry of some other examples of travesties of justice that didn't see wronged persons make out like Powerball winners.) One thing that's intrigued me, though, is how a couple of items in the news interplay and point towards the plaintiffs' strategy in taking on Nifong and the City -- for whom our embattled, embittered, embarrassed and politically disemboweled former D.A. never worked, since he's an employee of the State of North Carolina.
Clue #1: A key claim of the filing is the claim by attorneys in filing the suit that a conspiracy occurred between City officials, notably the Durham P.D., and Mike Nifong to bring baseless indictments against the three men charged in the case. It's a bold assertion, and one which flies in the face of Durham officials' insistence (at least ex post facto, and if I recall, one made during the case's progress as well) that Nifong was "running" the case and the police were letting the then-D.A. run the case.
Clue #2: The N&O has the following interesting exchange in Matt Dees and Joseph Ness's Saturday piece:
Lumping the co-defendants together puts the city in an awkward position. City leaders have tried to pin the rush-to-accuse tag on the "rogue prosecutor" Nifong, while also saying that Nifong wasn't given carte blanche in the investigation.
But the suit alleges that the Police Department allowed Nifong to take over the case, apparently with little resistance.
[Charlotte attorney Luke] Largess said he would expect one of the defendants to file a motion to sever the suit so the city would be responding only to specific allegations against Durham.
"I don't think they have the grounds to do that," said David Rudolf, another of Seligmann's attorneys. "We've alleged a conspiracy in which they all acted together."
Now, I'm not a lawyer (and if I'm off-base on this one, I expect an actual lawyer, if not Messrs. Dees and Gronberg, will correct me.) But from my quite limited understanding of Federal civil rights practices, there are a couple of relevant points at play here:
- States themselves are often (though not always) able to argue
that they are immune from Federal civil rights suits and liability
under the Eleventh Amendment to the U.S. Constitution. Officers of the
State -- like Nifong -- can be sued individually, however. Also,
notably, municipalities can be so sued.
- Though suing an individual like Nifong is doubtlessly satisfying to the men wrongly accused in this case, it's not likely to be very remunerative, unless Mr. Nifong happens to win big in Vegas or turn out to be a long-lost descendant of the Duke family fortune between now and any penalty or settlement phase.
What does this all add up to? Nifong and the other individuals in the case probably can't pay a multi-million dollar judgment. But the City of Durham possesses a tax base, and the ability to tax it. In other words, deep pockets.
Which is likely why Largess suggests Durham might try to separate the suit in two, in order to shield itself from Nifong's liability. And which, in turn, would explain the conspiracy focus by the plaintiffs -- if they were all in cahoots, it wouldn't be prudent to separate the parties in the complaint.
I haven't been closely following the case, and certainly don't know if there's a smoking gun somewhere that shows there was indeed a conspiracy that took place, but it strikes me that this may be a difficult charge to stick. Heck, this may prove to be the ultimate silver lining to messes like the yard waste fire and lead-in-the-water -- Durham's government often appears to be the Gang That Can't Shoot Straight, making it a whole lot easier to allege sheer incompetence over malice in this one.
Like most of America, I'm convinced that the lacrosse players were set up by Nifong in this case. (Most of Durham seems to think this, too, given that a majority voted against returning him to office, though the Monks-Cheek dual opponent situation let him sneak back in.) And they deserve a fair judgment for what they went through -- at the very least, they should recoup their legal expenses for the case.
Just how big a payday this turns out to be, though, will seem to rest on whether Durham officials were canny conspirators or bumbling bureaucrats in the eyes of the justice system. For someone who loves the Bull City, as hard as it is to say, here's hoping the latter is the case.