Duke LaCrosse Team

[UATrewqaz]

A story on the accuser's past.

http://www.foxnews.com/story/0,2933,265374,00.html

Colorful to say the least.

[TomCollins]

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A story on the accuser's past.

http://www.foxnews.com/story/0,2933,265374,00.html

Colorful to say the least.

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Plz ban for racism.

[slickpoppa]

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Legally, this could make for an interesting case. Nifong obviously has certain immunity protection for prosecuting people ...

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Sure, but if he's trying to convict people when he has evidence that they're innocent or similar, he should at the very least be fired, if not sued or more.

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If all Nifong did was file the initial charge against the students, then legally he would have done nothing wrong. Even though the accusser's story was shady, all that a prosecutor needs to file charges is probable cause, which is a very low standard. The accuser's story in and of itself is enough to constitute probable cause.

Although it really sucks that someone can be brought into court and charged with a serious crime with just probable cause, that's how the system works, so Nifong was within his prosecutorial discretion to file the charges. One could argue that maybe Nifong should have given the players the benefit of the doubt and waited a little bit to file charges. He certainly could have done that, but he was definitely not legally required to.

Nifong's blatantly violated legal ethics rules, though, when he made prejudicial statements about the defendants to the media. He also withheld exculpatory DNA evidence from the defense and even lied to a judge about the existence of such evidence. While those violations are definitely enough to get disbarred, I am not sure if they are grounds for a private suit by the defendants against Nifong and/or the government.

I think there are many lessons that we can learn from the case, but perhaps the most important one is being overlooked by many people. By focusing on Nifong's misconduct, people are overlooking the bigger systemic problem. Even if another prosecutor had been assigned to this case from the beginning, the defendant's lives would still have been f'ed up by this case. All the media condemnation and overreaction occurred well before any of Nifong's misconduct. As I mentioned above, Nifong was well within his prosecturial discretion to file charges, and I would bet that almost any other prosecutor would have filed charges as well. So even if a more ethical prosecutor had taken this case, the players probably still would have had to go through the hassle of getting lawyers, getting suspended from school, and being virtually condemned as rapists by media pundits.

So I think the real lesson that needs to be learned here is that although Nifong was a jackass, he was not the only problem. The real problem is the combination of a judicial system that has a very low threshhold for filing criminal charge and a media and popular culture that are willing to assume that defendants are guilty until proven innocent.

[Kaj]

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Nifong's blatantly violated legal ethics rules, though, when he made prejudicial statements about the defendants to the media. He also withheld exculpatory DNA evidence from the defense and even lied to a judge about the existence of such evidence. While those violations are definitely enough to get disbarred, I am not sure if they are grounds for a private suit by the defendants ...

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I'm not a lawyer, so what are the legal "grounds" for filing a private suit? I'm guessing that your remarks above are enough to file a suit.

[slickpoppa]

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Nifong's blatantly violated legal ethics rules, though, when he made prejudicial statements about the defendants to the media. He also withheld exculpatory DNA evidence from the defense and even lied to a judge about the existence of such evidence. While those violations are definitely enough to get disbarred, I am not sure if they are grounds for a private suit by the defendants ...

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I'm not a lawyer, so what are the legal "grounds" for filing a private suit? I'm guessing that your remarks above are enough to file a suit.

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There usually has to be a statute authorizing the suit or some kind of common law cause of action. The problem is that the rules Nifong violated are ethical rules that are primarily intended as a way for state courts to regulate the conduct of lawyers and disbar them if they misbehave. They are generally not intended to constitue legal grounds for which private individuals can sue lawyers. There are all kinds of ethical rules that require lawyers to avoid conflicts of interest, zealously advocate for their clients, etc. If a lawyer violates one of those rules, he can be suspended or disbarred, but he cannot be sued for malpractice by a client just on the basis of him violating those rules. Although violations of those rules will often constitute malpractice, there is a completely separate set of standards for when a client can sue for malpractice.

In order for the defedants in this case to sue, there needs to be some kind of North Carolina statute that explicitly authorizes defendants to sue for damages in the event of prosecutorial misconduct. I'm just not sure if such a statute exists. If there isn't one, they still might be able to sue, but then they would have to be a little more creative and fit this case into some kind of tort claim.


This article is a pretty good read about the scary breadth of prosecutorial discretion:

http://ls.wustl.edu/faculty/workingp...nductdraft.pdf

And one of the footnotes touches on the liability of prosecutors for their official acts:

"Under federal law, prosecutors have absolute immunity from claims for conduct that is associated with the judicial phase of the case, such as initiating the prosecution and pursuing the prosecution in court. Imbler v. Pachtman, 424 U.S. 409, 424 (1976). For work as an investigator or administrator, they have qualified immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 273, 278 (1993) (finding qualified immunity for statements about defendants to the press and for allegedly fabricating evidence); Burns v. Reed, 500 U.S. 478, 495 (1991) (finding qualified immunity for providing legal advice to the police). Qualified immunity is lost only when the prosecutor should know that his or her conduct violates clearly established constitutional or statutory rights. See, e.g., Doe v. Phillips, 81 F.3d 1204, 1211 (2d Cir. 1996). Similarly, most states provide prosecutors with immunity for their official acts. See, e.g., Am. Transmissions, Inc. v. Attorney Gen., 560 N.W.2d 50, 52 (Mich. 1997) (citing to statutory absolute immunity); Office of the State Attorney v. Parrotino, 628 So. 2d 1097, 1098 (Fla. 1993)."

[jman220]

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Nifong's blatantly violated legal ethics rules, though, when he made prejudicial statements about the defendants to the media. He also withheld exculpatory DNA evidence from the defense and even lied to a judge about the existence of such evidence. While those violations are definitely enough to get disbarred, I am not sure if they are grounds for a private suit by the defendants ...

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I'm not a lawyer, so what are the legal "grounds" for filing a private suit? I'm guessing that your remarks above are enough to file a suit.

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There usually has to be a statute authorizing the suit or some kind of common law cause of action. The problem is that the rules Nifong violated are ethical rules that are primarily intended as a way for state courts to regulate the conduct of lawyers and disbar them if they misbehave. They are generally not intended to constitue legal grounds for which private individuals can sue lawyers. There are all kinds of ethical rules that require lawyers to avoid conflicts of interest, zealously advocate for their clients, etc. If a lawyer violates one of those rules, he can be suspended or disbarred, but he cannot be sued for malpractice by a client just on the basis of him violating those rules. Although violations of those rules will often constitute malpractice, there is a completely separate set of standards for when a client can sue for malpractice.

In order for the defedants in this case to sue, there needs to be some kind of North Carolina statute that explicitly authorizes defendants to sue for damages in the event of prosecutorial misconduct. I'm just not sure if such a statute exists. If there isn't one, they still might be able to sue, but then they would have to be a little more creative and fit this case into some kind of tort claim.

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Sovereign Immunity. He can't be sued for this. A prosecutor's immunity from civil liability is nearly absolute when it comes to their conduct in the prosecution of cases, although he can certainly be disbarred.

[slickpoppa]

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Sovereign Immunity. He can't be sued for this. A prosecutor's immunity from civil liability is nearly absolute when it comes to their conduct in the prosecution of cases, although he can certainly be disbarred.

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Yeah, I added a quote in my previous post that indicates that is the general rule, but I'm not sure if there are some limited exceptions in some states. It appears that federal prosecutors have at least some potential liability.

[hmkpoker]

[NCAces]

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Sovereign Immunity. He can't be sued for this. A prosecutor's immunity from civil liability is nearly absolute when it comes to their conduct in the prosecution of cases, although he can certainly be disbarred.

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I believe you are wrong on this. As I said in a previous post, a prosecutor can't be sued because he simply prosecuted someone who was not guilty. If that were the case, every not guilty verdict would result in a civil suit.

However, severiegn immmunity is not absolute. There are a number of ways to get around it, at least one of which I believe is present in this case. First, understand that if the families want money, they will want to sue the Durham County. They might be able to be sued if and to the extent they have insurance to cover such a claim. That is the law in NC, GA and many other states. If they want to sue Nifong (more likely in my mind as all the families appear to have money, and would probalby sue for vengence instead of the money), he is in a world of hurt.

It is commonly known that the defense of sovereign immunity does not apply to wilful and wanton actions, which can be imputed by action that is so grossly negligent to be the equivalence of malice. I think there is ample evidence in this case for that to be argued. Here is a NC Court of Appeals case:

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Defendants argue, however, that the doctrine of public official’s immunity serves as a complete bar to plaintiff’s claim for negligence. The law of public official’s immunity is well established in North Carolina: "As long as a public officer lawfully exercises the judgment and discretion with which he is invested by virtue of his office, keeps within the scope of his official authority, and acts without malice or corruption, he is protected from liability." Smith v. State, 289 N.C. 303, 331, 222 S.E.2d 412, 430 (1976) (citations omitted). The doctrine of public official’s immunity serves to protect officials from individual liability for mere negligence, but not for malicious or corrupt conduct, in the performance of their official duties. Slade v. Vernon, 110 N.C. App. 422, 429 S.E.2d 744 (1993). Thus, while Officer Howell is protected from individual liability for mere negligence in the performance of his duties by the doctrine of public official’s immunity, such immunity does not extend to protect him from suit in his official capacity for such negligence to the extent his employer, defendant Town, has waived immunity by the purchase of liability insurance. Accordingly, we hold that to the extent defendant Town of Dallas has waived its immunity through the purchase of liability insurance, defendant Town, and defendant Howell, as sued in his official capacity, are not immune from suit for Howell’s alleged negligent acts, and summary judgment was properly denied for such claims ....


As noted above, a public officer is immune from personal liability for mere negligence in the performance of his duties, but is not immune if his actions are determined to be malicious or corrupt or beyond the scope of duties. It is also well established that a defendant may be liable for punitive damages where his conduct "reaches a level higher than mere negligence and amounts to willful, wanton, malicious, or reckless indifference to foreseeable consequences." Hare v. Butler, 99 N.C. App. 693, 701, 394 S.E.2d 231, 237, disc. review denied, 327 N.C. 634, 399 S.E.2d 121 (1990). "A defendant acts with malice when he wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another." Grad v. Kassa, 312 N.C. 310, 313, 321 S.E.2d 888, 890 (1984).

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The entire opinion can be read at: NC Court of Appeals Case

I used to be a municipal law attorney, representing towns, counties, school districts, etc. For the simple, "I screwed things up" incidents, sovereign immunity made my life easy. But, where there was wilful and wanton behavior, or gross negligence, we were teeing it up.

Also, keep in mind these folks have some serious money behind them. They are going to be able to afford the best lawyers you can find around here. IMHO, Nifong is toast.

NCAces

[jman220]

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Sovereign Immunity. He can't be sued for this. A prosecutor's immunity from civil liability is nearly absolute when it comes to their conduct in the prosecution of cases, although he can certainly be disbarred.

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I believe you are wrong on this. As I said in a previous post, a prosecutor can't be sued because he simply prosecuted someone who was not guilty. If that were the case, every not guilty verdict would result in a civil suit.

However, severiegn immmunity is not absolute. There are a number of ways to get around it, at least one of which I believe is present in this case. First, understand that if the families want money, they will want to sue the Durham County. They might be able to be sued if and to the extent they have insurance to cover such a claim. That is the law in NC, GA and many other states. If they want to sue Nifong (more likely in my mind as all the families appear to have money, and would probalby sue for vengence instead of the money), he is in a world of hurt.

It is commonly known that the defense of sovereign immunity does not apply to wilful and wanton actions, which can be imputed by action that is so grossly negligent to be the equivalence of malice. I think there is ample evidence in this case for that to be argued. Here is a NC Court of Appeals case:

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Defendants argue, however, that the doctrine of public official’s immunity serves as a complete bar to plaintiff’s claim for negligence. The law of public official’s immunity is well established in North Carolina: "As long as a public officer lawfully exercises the judgment and discretion with which he is invested by virtue of his office, keeps within the scope of his official authority, and acts without malice or corruption, he is protected from liability." Smith v. State, 289 N.C. 303, 331, 222 S.E.2d 412, 430 (1976) (citations omitted). The doctrine of public official’s immunity serves to protect officials from individual liability for mere negligence, but not for malicious or corrupt conduct, in the performance of their official duties. Slade v. Vernon, 110 N.C. App. 422, 429 S.E.2d 744 (1993). Thus, while Officer Howell is protected from individual liability for mere negligence in the performance of his duties by the doctrine of public official’s immunity, such immunity does not extend to protect him from suit in his official capacity for such negligence to the extent his employer, defendant Town, has waived immunity by the purchase of liability insurance. Accordingly, we hold that to the extent defendant Town of Dallas has waived its immunity through the purchase of liability insurance, defendant Town, and defendant Howell, as sued in his official capacity, are not immune from suit for Howell’s alleged negligent acts, and summary judgment was properly denied for such claims ....


As noted above, a public officer is immune from personal liability for mere negligence in the performance of his duties, but is not immune if his actions are determined to be malicious or corrupt or beyond the scope of duties. It is also well established that a defendant may be liable for punitive damages where his conduct "reaches a level higher than mere negligence and amounts to willful, wanton, malicious, or reckless indifference to foreseeable consequences." Hare v. Butler, 99 N.C. App. 693, 701, 394 S.E.2d 231, 237, disc. review denied, 327 N.C. 634, 399 S.E.2d 121 (1990). "A defendant acts with malice when he wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another." Grad v. Kassa, 312 N.C. 310, 313, 321 S.E.2d 888, 890 (1984).

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The entire opinion can be read at: NC Court of Appeals Case

I used to be a municipal law attorney, representing towns, counties, school districts, etc. For the simple, "I screwed things up" incidents, sovereign immunity made my life easy. But, where there was wilful and wanton behavior, or gross negligence, we were teeing it up.

Also, keep in mind these folks have some serious money behind them. They are going to be able to afford the best lawyers you can find around here. IMHO, Nifong is toast.

NCAces

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Prosecutors generally have more immunity than even ordinary public officials, akin to the immunity of a sitting judge. In my state (NY) we cannot be sued for our actions in prosecuting a case (although we could be sued for our actions if not directly related to the prosecution of a case, or the decisions associated with it, in that case we only have qualified immunity, instead of absolute immunity). I will admit to not having familiarity with other states, but I cannot imagine it is that much different.