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Herald Sun

Aug. 23, 2013

City urges Supreme Court to reject lacrosse case


City urges Supreme Court to reject lacrosse case ... to avoid getting involved in the first of the lawsuits spawned by the Duke lacrosse case.

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http://www.heraldsun.com/news/x2042201563/City-urges-Supreme-Court-to-reject-lacrosse-case

City urges Supreme Court to reject lacrosse case
Aug. 23, 2013 @ 07:56 PM

Ray Gronberg
The Herald-Sun

Discounting claims of a philosophical dispute among federal judges, lawyers for the city on Friday urged the U.S. Supreme Court to avoid getting involved in the first of the lawsuits spawned by the Duke lacrosse case.

The 4th U.S. Circuit Court of Appeals late last year “properly rejected” the attempts of three former Duke players to hold the city responsible for the actions of a state official, former District Attorney Mike Nifong, they said.

City lawyers were weighing in at the request of the Supreme Court’s nine justices, who are considering a petition from former Duke players David Evans, Colin Finnerty and Reade Seligmann that asks them to overturn the 4th Circuit’s ruling.

The three were indicted on rape charges in 2006 after stripper Crystal Mangum claimed that she’d been attacked at a lacrosse-team party. A year later, they were exonerated when N.C. Attorney General Roy Cooper determined the charges were false.

The players’ subsequent lawsuit contends that police and Nifong conspired to frame them and thus violated their civil rights.

But the 4th Circuit agreed with the city’s contention that it’s not liable because Nifong and a grand jury, independent of police, decided there was probable cause to support the charges.

Their decisions, in lawyers’ parlance and the 4th Circuit’s opinion, “broke the chain” of events that has to run from the beginning to the end of a prosecution for a subsequent civil-rights lawsuit to hold up.

In petitioning for Supreme Court review, the players and their attorneys argued that the 4th Circuit’s view of the chain-of-events doctrine isn’t necessarily shared by other federal appeals courts.

The claim of a “circuit split” is a standard way to convince justices to include the case on the list of a few dozen that will receive a full-on hearing during their 2013-14 term, instead of rejecting it along with thousands of other pending petitions.

City lawyers, however, on Friday said there’s no circuit split.

The players’ legal team “has not cited, and cannot cite, a single case in which a court has ruled that police can be held liable for a prosecutor’s decision to seek an indictment without evidence the police misled or pressured the prosecutor into making that decision,” they said.

Lawyers for the players, in arguing otherwise, pointed in the spring to decisions by 6th and 2nd U.S. Circuit Courts of Appeals. But the city contends that those cases aren’t on point.

The 6th Circuit case involved a police officer who withheld evidence from a prosecutor, and the 2nd Circuit case didn’t even involve a police officer, city lawyers said.

They added that the key issue in the lacrosse litigation is that police, even by the players’ account, “fully disclosed all the evidence” they had to Nifong and did not in any way pressure him to prosecute.

Though the players allege a conspiracy between Nifong and police, their argument is one that can expose authorities to liability any time there’s an unsuccessful prosecution of a criminal defendant, they said.

“Since prosecutors are often involved in investigations – meeting with police to review evidence, determine additional areas for investigation and discuss trial preparation – it would not be difficult for plaintiffs to characterize such action as a ‘conspiracy,’” the city brief said.

Friday’s brief is the first of two the city’s legal team will be filing with the Supreme Court. The second will address a separate lawsuit and petition filed by a trio of former players represented by Durham lawyer Bon Ekstrand. It is due on Aug. 30.

The city’s team includes Raleigh attorney Reggie Gillespie and four lawyers from an international law firm originally brought in by the city’s insurer.

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But the 4th Circuit agreed with the city’s contention that it’s not liable because Nifong and a grand jury, independent of police, decided there was probable cause to support the charges.

MikeZPU

Aug 24 2013, 01:52 PM

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But the 4th Circuit agreed with the city’s contention that it’s not liable because Nifong and a grand jury, independent of police, decided there was probable cause to support the charges.

That is absolutely not true.

Nifong was not allowed to be present in the Grand Jury Proceedings.

It was absolutely the DPD police that convinced a GJ to bring charges against the players.

Gottlieb testified at the first GJ to indict Reade and Colin, and Himan testified at the second GJ to indict David.

This statement is patently false.