Durham asks Supremes to reject Duke lacrosse appeal

The Durham Herald Sun  reported last week that the City of Durham has filed a response to the petition for certiorari filed by 3 former Duke lacrosse players. The players are asking that theSupreme Court reverse a decision by the Fourth Circuit upholding the dismissal of the players’ claims against the city.

According to the Herald Sun:

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.

It may well be that the Durham police disclosed all evidence to Nifong, and neither misled him nor pressured him to prosecute. It seems to me, however, that the City has fundamentally, and misleadingly, misrepresented to the Court what the case is all about. As I understand it – and as I recall from media reports while the Duke lacrosse scandal was unfolding – the allegation is that the police, together with Nifong, fabricated evidence to support false charges against the players, and withheld key exculpatory evidence from the grand jury so as to gin up an indictment. On those facts, it is difficult to see how the city’s chain of events argument holds any water. The city has also, I think, misstated the likely consequences of allowing the case to move forward. Is it really so that, if the claims against the city here are allowed to proceed that municipalities will be subject to suit whenever there is a failed prosecution? Only if the failed prosecution was the product of gross misconduct by both the police and the prosecutor. Misconduct that was so egregious, in fact, that it led directly to the disbarment of the prosecutor in question – the elected district attorney.

Given how few petitions the Supreme Court actually grants, it may well be that the city prevails in this round. But if it does, it will only be because the law of averages is in its favor. Because its legal position in this case is complete baloney. Let’s hope that the Court does the right thing in this case.


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