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Tuesday, October 16, 2007
Thoughts on the Duke Lacrosse Case

As I mentioned recently, David Evans, Collin Finnerty, and Reade Seligmann--the three former Duke lacrosse players indicted on sexual assault charges and later exonerated--have filed a civil rights action in United States District Court for the Middle District of North Carolina. Defendants include the City of Durham; former District Attorney Michael Nifong; two Durham police investigators, Mark Gottlieb and Benjamin Himan; department spokesperson David Addision; a private DNA-testing laboratory; and a host of supervisory department officials. The players allege violations of unspecified Fourth and Fourteenth Amendment rights, federal conspiracy to deprive them of equal protection of law, and various state tort claims.

I have a guest column on FindLaw's Writ this morning, examining the lawsuit at length and pointing out some blatant weaknesses in their claims. Let me add here some additional problems with the case.

First, the plaintiffs focus a lot of attention to the failure of Nifong and the police to disclose exculpatory evidence. But while the failure to disclose may have violated state-law obligations, I am not sure it states a remediable constitutional violation. I am not aware of any constitutional duty on police to disclose evidence to defendants or targets of their investigations. On the other hand, prosecutors do have such a duty under Brady v. Maryland and its progeny. But it is not clear when, as a constitutional matter, the duty to disclose kicks in or when a Brady violation is "complete" such that a person's rights have been infringed and he can recover damages under ยง 1983. Brady is generally understood as a trial right and a violation will lie only where the prosecution's failure to disclose evidence materially prejudiced the defendant at trial (i.e., the defendants would not have been convicted had the material been disclosed as required). But since the three players never went to trial, I am not sure any obligation to disclose ever was triggered. Can anyone out there fill us in on that? In any event, as I state in the FindLaw piece, Nifong likely enjoys absolute prosecutorial immunity on those claims.

Second, the players bring claims against a private company called DNA Security, Inc., its president, and one of its testing scientists; DSI is the company that Nifong sought out to conduct DNA analysis when the North Carolina Bureau of Investigation initially reported that no physical evidence linked any Duke lacrosse players to any sexual contact with the victim. But DSI (and its principals) are all private actors and only state actors are bound by the Constitution. So the plaintiffs need some link between DSI and the government to make these claims work. The complaint alleges that DSI was "retained . . . to provide forensic analysis services relating to the investigation . . . and in this capacity acted under color of state law at all times relevant." I am not sure that simply contracting with government to provide a service to government is enough to make a private company a state actor; that would be a truly broad expansion of the principle.

I do think there are two possible arguments for DSI acting under color. The first is the "close nexus test," satisfied where the government facilitated/coerced/encouraged/supported the private entity's misconduct. The second is the conspiracy test, where public and private actors conspire together to engage in obviously unconstitutional conduct. Given the allegations in the complaint--that Nifong and DSI together created a plan to withhold DNA evidence or to make it appear less exculpatory than it was--I think either of these tests could be satisfied.

Third, there is an interesting causation question: What is the constitutional harm (as opposed to the state tort) from the allegedly false statements to the public and to the press about the criminal case, the evidence, and the defendants? If the purpose was to taint the jury pool, can there be a violation since no jury was poisoned because the case never went to trial? Did it poison the grand jury pool that indicted? Perhaps. The statements harm their reputations--but is that recoverable for a constitutional violation?

As I say in the column, my prediction is the case settles, given how egregious some of the conduct described was. And, if it does not settle, I do think the claim is strong in many respects and the plaintiffs stand a good chance of recovering substantial damages from somebody. But this is a huge complaint, in length and in the scope and breadth of its factual allegations and claims for relief. And while there is some in there with merit, there is much without.


Great article. I think they have asked for a jury trial to help overcome some of the problems you have outlined.

If you get a jury with folks who have any axe to grind about the police, city government, or govenment in general, I think this will tip the scales for a large reward. We all remember the OJ trials. Two different types of juries. Two different attitutes.

I have seen this in 2 civil juries I have served in. In one of them, the we awarded more than what had been asked.


Anonymous Anonymous -- 10/17/2007 4:40 PM  

Except a lot of what is alleged in this case never will reach a jury. The prosecutorial immunity will be resolved early; so will the issue of qualified immunity (which is a question for the judge). And as for damages, I do not think they will get anywhere close to $ 30 million, although they should recover a lot.

Blogger Howard Wasserman -- 10/17/2007 7:53 PM  

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