Players 3, Nifong 0

by David Nieporent on April 11, 2007

ABC News is reporting that all charges have been dropped in the Duke Lacrosse case. So how long before the civil suits are filed by the exonerated players? (I’m betting the complaints have already been drafted.) And how much will taxpayers be on the hook for?

{ 37 comments }

1 Joe Bingahm 04.11.07 at 3:28 pm

Count me in on the plaintiff’s side in these suits. Whatever the taxpayers are on the hook for, it’s not enough; hopefully Durham itself takes the brunt of the blow.

2 Justinian Lane 04.11.07 at 3:59 pm

I’m confused. Overlawyered contributors have (rightfully) criticized Nifong and his antics. But now a contributor thinks the wrongly accused players shouldn’t be compensated? So what should we do when government goes wild?

3 Ted 04.11.07 at 4:03 pm

I don’t know whether Nieporent has taken a position (his post is neutral), but I’d be on the plaintiffs’ side in such cases, too. I have to wonder, however, if a waiver of a civil suit was a precondition for dropping charges, though the prosecutors’ office probably was not in a strong enough position to insist upon this. Taxpayers will then be on the hook, but that’s what elections are for.

4 Justin 04.11.07 at 4:03 pm

So, does Georgia Thompson get the same remedy after spending 4 months in prison?

5 David Nieporent 04.11.07 at 4:15 pm

Justinian: given that — from my interpretation of the facts — the government’s conduct here was not merely negligent, but deliberately wrongful, I would support the suits. (Especially since the former defendants have actual economic losses.)

Nonetheless, I lament the fact that the money comes from taxpayers rather than personally from the wrongdoers.

6 Matt 04.11.07 at 4:23 pm

Count me on the plaintiff’s side as well. Could one of the lawyers elaborate on the following:

1) Does NC enjoy sovereign immunity? If the civil rights of the players were violated (and it seems certain that they were), does this abrogate the immunity?

2) What kinds of immunity does Nifong enjoy? Gottleib (the author of the “straight-from-memory” notes?

3) Do the players have any claim against the private DNA lab?

-Matt

7 TC 04.11.07 at 4:37 pm

The AG’s comments more than hung Nifong out on the line totally alone!

He all but said, “Oh and guys,, check this out, Nifong has so pked up that you already own his naked arse! Name the price and I’ve got a feeling it will be in the mail. Sure some of it will come from the state, but Mikey is all alone for your pleasures.

The BAR was also informed to all but eviscerate Mikey as well. Just leave enough for the families to pick over.

Cooper did not use a sword to run Mikey through, it was much more like a long lance.

The AG’s statement; http://www.breitbart.com/article.php?id=D8OEIRA80&show_article=1

8 Mike 04.11.07 at 5:03 pm

Last I checked, the taxpayers elected Nifong. Indeed, they elected him primarily because of this shameful prosecution. Why then should they not be “on the hook”?

9 Todd R 04.11.07 at 5:04 pm

This might be one of those instances where justice is best served by karma. Nifong seems to have it coming and he knows it. This anticipation through which he must languish, while only the precursor, will perhaps deliver the most justice to these poor lads. But they will get to sell their stories, I assume, and that might feel pretty good, too.

Hey Nifong, you might want to call someone at legal aid, you’re going to need it.

10 Richard Nieporent 04.11.07 at 5:07 pm

It was the taxpayers, both the black community and the white liberals, who wanted the Duke players to be convicted irrespective of whether or not they were guilty. Nifong was desperate to get elected so that he would be assured of his pension. Thus, he did everything in his power to exploit this lynch mob atmosphere. He was willing to sent three innocent men to jail for twenty years for a lousy pension. The community wanted to send three innocent men to jail because of their racial and class bigotry. Thus in this case, both the taxpayers and Nifong were equally guilty and both deserve whatever punishment the law can meet out.

11 Walter Olson 04.11.07 at 6:12 pm

>the taxpayers and Nifong were equally guilty

Count me out on this business of imputing group guilt to “the taxpayers” or to the Durham citizenry generally. These are aggregations that sweep in many persons who opposed Nifong, some who were fooled for a time by his claims, others who never formed or expressed an opinion at all, and still others who pay taxes in Durham but are ineligible to vote in its elections. There may be sound reasons to stick taxpayers with liability in cases like this, but theories of voter culpability are not among them.

12 Justinian Lane 04.11.07 at 6:48 pm

David, Ted – Glad to know you don’t think the players should be denied compensation. I agree it’s too bad that the compensation has to come from taxpayers.

Hopefully, Nifong’s opponent in the next election will use the settlement or verdict to unseat him.

13 David Nieporent 04.11.07 at 6:53 pm

I’m with Walter on this one (and it’s not just because I’m sucking up to him. He doesn’t pay me enough for that.) It’s true that Durham did vote for Nifong. (Except that it isn’t really true, because he actually got less than half the vote.) But while there’s obviously some overlap, there’s no identity between the people who voted for Nifong and the people who pay taxes. There’s no moral reason to punish the latter because of the actions of the former.

As Walter says, there are policy reasons why taxpayers have to shell out the money — but “They deserve it for voting for him” is a flawed argument.

14 Hans Bader 04.11.07 at 7:03 pm

Unfortunately, prosecutors have absolute civil immunity from most federal lawsuits under 42 USC 1983 — even if their conduct is unconstitutional and criminal in nature (as Nifong’s unethical conduct may well have been).

I don’t know what state-law remedies the students may have, and what hurdles sovereign immunity may pose.

15 Elliot 04.11.07 at 7:22 pm

As I understand federal law, prosecutors have immunity for their actions *as prosecutors*, i.e., positions taken in court; they are NOT immune for actions taken in the course of pre-indictment investigations. So Nifong may be liable for his role in the photo array, and perhaps also for his agreement with the DNA lab to withhold results.

16 jb 04.11.07 at 8:05 pm

What about Duke? The 88 surely have some responsibility for this. I’d love to see the Identity Studies department budgets cut for a while to pay for their members’ shooting off their mouths.

17 Peter 04.11.07 at 8:40 pm

Some difference of opinion between David and Richard N… Hope the next family gathering isn’t too chilly!

I’ll throw my lot in with Mr. Olson: Justice is not served by penalizing those who did not vote for Nifong. But as this blog shows again and again, the innocent are always the first to pay for litigation.

18 Richard Nieporent 04.11.07 at 11:07 pm

I would have a little more sympathy to David’s and Walter’s position, expect for the fact that by the time of the general election it was a well known fact that the Duke Lacrosse players were being railroaded. When the question was raised of how do you stop a rogue DA, the answer was that he was responsible to the electorate. Unfortunately, the electorate did not see it that way and he was voted into office.

I don’t see how the “don’t blame me, I didn’t vote for him” argument is relevant. Given the fact that usually only 50% of the electorate votes, then by definition the majority of people have not voted for any candidate that wins an election. By this logic, nobody is responsible for who gets elected. If there had been no election, then I would agree that the people should not have to pay for his egregious actions. However, that was not the case. When you allow someone like Nifong to be elected then it is hard to argue that you have no responsibility for the damage he did.

19 Joe Bingahm 04.11.07 at 11:08 pm

I actually hope the case won’t go to civil trial. The players have asked Duke to pay their legal bills; this is the perfect solution. It will allow them show that they’re not taking this as a chance to get rich; it will give Duke a chance to redeem itself from its professors’ behavior; it will pay their legal bills without sticking it to taxpayers.

Several have pointed out that lots of voters didn’t vote for Nifong. It’s worth pointing out that, in addition, taxpayers are a very different group from voters. Plenty of voters don’t pay taxes, and plenty of taxpayers don’t vote.

20 ben tillman 04.12.07 at 12:02 am

I think Duke should compensate its students voluntarily (or, if necessary, involuntarily) for its disgraceful role in all this, and it seems that the SANE may have committed malpractice in suggesting to the complainant that she had been raped rather than asking, simply, “what happened?”.

I’m not a fan of making the taxpayers pay for the evil of their rulers, but this case might be an exception.

21 Joe Bingham 04.12.07 at 12:10 am

Man, RN makes such good points, too. I give up. After all, I can’t even spell my own name in my posts. /hide

22 David Nieporent 04.12.07 at 12:19 am

Joe: don’t encourage him.

23 Mike 04.12.07 at 1:19 am

One common theme of this blog is personal responsibility. People who injure themselves while doing dangerous things often refuse to accept personal responsibility. Thus, they sue.

Here, the voters must accept personal responsibility for their actions. By voting for Nifong, they ratified his decision to prosecute three innocent young men.

Elections have consequences. When the electorate chooses to elect an evil, vicious man, they deserve to suffer for what their representative does.

24 Amsterdamsky 04.12.07 at 8:28 am

All I can say is I left the US. You guys have some serious, serious problems to sort out. So bad that Paris carbeques seem minor. The one thing is certain is that your tax money will be more an more going to things like this in the future while your baby boomer retirement deficit and trade deficit will start to erode your standard of living. If Hillary or Obama get elected I am having a big party and then going straight to the embassy to turn in my US passport. Good luck guys, you are going to need it.

25 William Nuesslein 04.12.07 at 9:50 am

I too have scratched off Mr. Nifong from my Christmas Card list, but we err in personalizing the phenomenon at Duke University. As a culture we continue to have the real problem with the kind of hysteria that occurred with the Salem Witch Trials.

Remember Tawana Brawley? As a matter of justice, the Tawana Brawley case was over in a day when the neighbor lady said that she saw Tawana crawl into the trash bag. That case went on for years, and ended with an idiotic statement by the State AG, Bob Abrams, which statement conformed to the idiotic letter by members of the Duke Faculty.

In the current Don Imus case, the basketball players should have just said “So’ s your mama”; instead they parroted Reverend Sharpton. The women competed with great successes in a rough sport and should have shrugged off Mr. Imus remark. (I thought the remark to be a hip-hop expression of astonishment with the level of skill displayed by the women. When a stand-up comedian claims to have “killed” last night, only a fool would take that as a confession.)

How do some cases go off the rails? What should be done to temper passions? Clearly the academic community has an obligation to police itself.

This site is positive in this regard thanks to Walter Olson, et al.

26 Deoxy 04.12.07 at 10:11 am

While I recognize that there significant difference between “voter” (and especially “voter for Nifong”) and “taxpayer”, they are both aggregations of the general populace.

That is, the government is paid for by “the people” and chosen by “the people”. That those two groups are not identical is certainly a flaw, but simply ltting the government off is a much MUCH larger flaw.

The things that stick in my craw are as follows:
-Nifong will likely have immunity to most charges
-the chances of criminal charges being brought against him (even though he clearly committed several crimes) is essentially nil
-the woman in question will get off scott free (that is, her rushed excuse to get out of public intoxication worked, and she won’t face any consequences for what it did to the men she lied about)
-the worst offenders in the public railroading of these guys will face essentially zero consquences personally, and will even continue to wear the mantle of moral superiority

27 Joe Bingham 04.12.07 at 11:18 am

I said I was bowing out, but then I solved the problem last night in my sleep. Here’s how we can maximize the correlation between responsibility and punitive damages:

The money will come from taxpayers, yes, but will be taken exclusively from the budgets of programs benefiting precincts which voted overwhelmingly (say, over 90%) for Nifong.

Hm. What might be the political problems with this solution?

28 OBQuiet 04.12.07 at 3:18 pm

Mike,

The problem is that not all taxpayers voted for the guy. While it may turn out to be the only way to compensate those wronged, you have to recognize that it harms those who voted against him also.

Those chose not to vote deserve what they got.

29 Charles 04.12.07 at 3:28 pm

I disagree with Mr. Tillman. Having lived in Durham and attended Duke, Duke approached the problem as best as it could. The administration took a measured approach, suspending the team, but allowing the senior to graduate. The tensions between Durham and Duke are severe: a classic have-and-have-not with race thrown into the mix. For the administration to ignore the allegations would have been viewed in the worst light.

As far as I am concerned, Duke owes the students nothing. Nifong owes everyone.

However, I find the “taxpayers owe the students ” approach to be somewhat hypocritical. Perhaps, the State should shield itself behind sovereign immunity and let Nifong pay. He is the one who truly owes.

30 Mike 04.12.07 at 4:23 pm

The problem is that not all taxpayers voted for the guy. While it may turn out to be the only way to compensate those wronged, you have to recognize that it harms those who voted against him also.

That would be said of anything in a representative democracy. A city, like a corporation, is ultimately responsible for the acts of its “shareholders.” Here, the shareholders installed an evil man. If the shareholders of IBM installed an incompetent CEO, no one would cry any tears when those shareholders lost money. The same principle applies.

And those who disapproved of Nifong were free, as they say, to vote with their feet. They remained, and thus they too must suffer the consequences of that choice.

31 Linda 04.12.07 at 5:15 pm

What consequences does the Accuser face in this situation? She evidently lied to the police, then carried it forward. She was abetted by some police actions, and certainly by the DA. The offer to pay her college expenses by a certain nationally known Black Activist did not materialize, as the story began to unravel. Are there no legal consequences to false accusation?

32 Deoxy 04.12.07 at 6:14 pm

“Having lived in Durham and attended Duke, Duke approached the problem as best as it could. The administration took a measured approach…”

You clearly have not remotely followed the facts of the case. The actions of Duke were completely outrageous, repeatedly violating their own stated policies, not to mention slandering the accused students, among other things. They did far FAR more than just not ignore the allegations. Suspending the entire team and firing the coach, for instance, were not rational responses, but at least those responses were at their discretion; their treatmnt of their PAYING CUSTOMERS (that is, the students) was both reprehensible and wrong… and will cost them lots of money, either voluntarily or in court judgement (as their actions have no legal defense).

And Mike is correct in his analogy of the corporation; though one can usually divest one’s self of stock more easily than one can change locations, it is still the same principle.

Of course, I often feel the same frustration about corporate crime as well: the company pays, but the actual person who committed the deed escapes punishment – the CEO in the analogy, Nifong in this case.

33 OBQuiet 04.12.07 at 7:38 pm

I find the Corporation comparison lacking. It seems to ignore transaction costs. If I don’t like the CEO a company selects, the cost of distancing myself from the future costs is about $9.95 from a discount broker.

The cost of avoiding a liability brought on by a criminal DA would entail selling a home, taking my kids out of school, possibly changing jobs for both me and my wife and leaving friends and family. It could take quite a while before I found a place that was fit for my ‘investment’ since there are other elected officials to consider and with my luck, I’d have to move again after the next election.

34 Deoxy 04.13.07 at 10:11 am

“I find the Corporation comparison lacking. It seems to ignore transaction costs.”

Unfortunately, them’s the breaks. The analogy holds quite well, despite the fact that it is much mor expensive and difficult to “divest” yourself of a local government.

It even holds for the federal government. “The people” elect, and “the people” pay the consequences. It’s not fair to everyone; in fact, it’s unfair to many, possibly even MOST people, but I challenge anyone to come up with a better system.

Millenia of human experience has failed to do so. As a famous person (Mark Twain, I think) once said, “Democracy is the worst possible form of government, except for all the other ones.”

35 Charles 04.13.07 at 10:48 am

Mike’s argument that residents of Durham should move if they didn’t like Nifong rather than be saddled with footing the bill is outrageous. Households are not shares of stock. Relocation involves more than a call to a stockbroker. This thinking is the exactly the sort of sophistry that plays into the tort-lawyers ‘ hands. “Someone has to pay, and you were nearby.”

Perhaps a large payout is proper in this case because these kids are rich and white, and the town predominantly middle-class and black? I hope not.

As for Deoxy, the students may be paying customers, but they are also subject to the disciplinary rules of in loco parentis–the University. The team’s seaason was suspended, not all the players. Yes, the coach was asked to resign. And, the accused senior was allowed to graduate. If it costs Duke money, that is the greater injustice, since at the time the situation was not as clear as it is now. So where is the harm caused by the school?

Of course, someone has to pay, right?

36 OBQuiet 04.13.07 at 3:27 pm

The other problem with the Corporation comparison is that I can choose NOT to invest anywhere. I don’t really have the option of choosing to not live anywhere.

“It’s not fair to everyone; in fact, it’s unfair to many, possibly even MOST people, but I challenge anyone to come up with a better system.”

Why not allow the perpetrator, in this case Nifong and crew, to bare the burden? I don’t think we need to eliminate representative democracy to solve the problem.

37 Deoxy 04.16.07 at 11:51 am

“Why not allow the perpetrator, in this case Nifong and crew, to bare the burden? I don’t think we need to eliminate representative democracy to solve the problem.”

1) Immunity for prosecutors exists for a reason (similar reason as Congressmen having fairly for-reaching immunity)

2) What part of “representative democracy” did you miss? I’m not suggesting the replacement of representative democracy, I’m merely pointing out that, if it is indeed “representative”, then we who are represented are on the hook for the actions of the one representing us. That is part of “representative democracy”.

Charles,

The harm caused by the school: violating their own policies regarding treatment of their paying customers (that would be the students), which is essentially violation of contract. Also, SLANDER (of fairly large scale), and possibly physical intimidation (several of the protests and other actions condoned by the school could quite reasonably by interpreted as threatening).

But really, the slander in and of itself is of sufficient scope to take pretty good care of things, financially speaking.

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