Nifong/Lacrosse update

by David Nieporent on September 7, 2007

Former Durham prosecutor Mike Nifong, railroader of the Duke Lacrosse 3, was found guilty of contempt of court and sentenced to one day in jail; this punishment is for lying to the trial court about the existence of DNA evidence. He reported to jail today to serve his sentence. He has already been disbarred, of course.

Next to come is the players’ civil suit, though that money is unfortunately going to come from the taxpayers of Durham rather than from Nifong. The players are attempting to negotiate a settlement before filing their suit; they’re reportedly seeking $30 million, plus changes to the legal process to allegedly prevent the district attorney from hijacking a police investigation the way Nifong did. They intend to file suit within a month if the city doesn’t settle. (AP, Herald-Sun)

And then there’s this little tidbit:

Durham’s Police Department, which helped Nifong secure the indictments, has also come under criticism. A special committee probing police handling of the case stopped working last month, however, because the city’s liability insurance provider warned that the committee’s conclusions could provide material for lawsuits.

At this point, if we were Bizarro-Overlawyered I’d be rambling about “Profits over People” or something, but since we’re not, I’ll just point out that it simply demonstrates the perverse incentives of the legal system and its unbounded discovery rules. As long as everything you put on paper can be used against you — even in hindsight — then the incentive is not to put it on paper. (Of course, I’m not suggesting that the specific wrongdoing in Durham was only obvious in hindsight; people like K.C. Johnson figured it out right away. But the incentives are the same in every case.)

{ 25 comments }

1 Aric 09.07.07 at 1:26 pm

Why is it unfortunate that Durham county taxpayers have to foot the bill for the civil suit? They’re the ones who elected Nifong, and then reelected him in the middle of the whole mess.

There are about 220,000 people in Durham county, which means that a $30 million settlement would come to about $135 per person. An appropriate punishment for electing someone like Nifong.

2 Xrlq 09.07.07 at 2:03 pm

Next to come is the players’ civil suit, though that money is unfortunately going to come from the taxpayers of Durham rather than from Nifong.

Why unfortunately? Sure I’d like to see Nifong himself pay up, but it’s not as though Durham voters are blameless. They’re the ones who elected Nifong, not in spite of but because of his disgraceful behavior. Let them pay, big time.

3 nevins 09.07.07 at 3:18 pm

“…though that money is unfortunately going to come from the taxpayers of Durham rather than from Nifong.”
Not really all that unfortunate. The city’s populace ate up everything Nifong fed them and then re-elected the guy. A majority of the voters wanted what Nifong was selling regardless of the truth; only fitting that they pay for it now.

4 David Nieporent 09.07.07 at 4:44 pm

Even if one believes that voters are legally to blame for the actions of the people they vote for:

1) A majority of the voters of Durham voted against Nifong.

2) Even the ones who voted for him surely wouldn’t bear 100% of the blame, but they’re going to be hit with 100% of the penalty.

3) Although it’s true that he was ultimately elected, Nifong’s acts which so injured the Duke 3 happened before he was elected. The election wasn’t until November 2006, long after the manipulated lineups, the prejudicial statements to the media, the misbegotten indictments, the concealed DNA results, etc.

The plurality of voters who voted for him may be morally reprehensible for doing so, but those votes didn’t cause the harms for which the players are suing.

(And contrary to what Nevin and Aric wrote, Nifong was not “re”-elected; he had been appointed to his position before he was elected in November 2006.)

5 Joe 09.07.07 at 5:59 pm

$30 million is a bit much.

Here’s a test–would you be willing to suffer the same humiliation for that amount of money. I would in a heartbeat.

6 David Nieporent 09.07.07 at 6:20 pm

Joe, $10M each may be a bit much, but it’s not just “humiliation.” It’s also actual damages — they incurred several million in attorneys fees.

Plus at least one of the accused lost a job, one who was on probation elsewhere got prosecuted because they thought he had violated the terms by breaking the law, and two of them were suspended from school for a year.

And it’s a little more than “humiliation,” anyway. It’s not Don Imus; it’s not like their feelings were hurt. Many people really thought they were rapists — and a few still do. That’s real reputational damage, if not $10M worth.

7 AMcA 09.07.07 at 6:25 pm

Bizzaro, yes, that the insurance company should say stop investigating.

But legally dangers, too. A city that fails to follow up on reports of police isconduct can find itself in the dock on the theory that it tolerates, and therefore causes, police misconduct.

Welcome to the upside down world of police litigation.

8 PatW 09.07.07 at 7:55 pm

Duke paid their legal fees in exchange for release from liability for the university and the Group of 88.

9 David Nieporent 09.07.07 at 8:28 pm

PatW: perhaps I’m misreading it, but I don’t see that claim in the article you cite.

10 lrbinfrisco 09.07.07 at 9:17 pm

“$30 million is a bit much.

Here’s a test–would you be willing to suffer the same humiliation for that amount of money. I would in a heartbeat.”

It’s not a question of paying for the humiliation. It’s paying for violation of civil rights. Would you give up your constitutional rights for $30 million?

11 PatW 09.07.07 at 9:37 pm

I guess the amount is just a lot of speculation, but it seems reasonable to me that the settlement covered legal fees.

Don’t get me wrong, I think that the city is fully liable for 30 mil or more, especially with that despicable Bakers-Chalmers Report they issued. And the insurance company was totally correct in ending that investigation, which is a shame as the original post pointed. Can’t let the truth come out, because then we’d be liable!!

12 Mike 09.07.07 at 11:37 pm

Here’s a test–would you be willing to suffer the same humiliation for that amount of money. I would in a heartbeat.

That’s easy to say in hindsight, but it’s not really a reflection of what happened – or how the people felt at the time they suffered the harm. Would I suffer one year of humiliation if I knew, at the end of that year, I’d make $10 million? Of course. Who wouldn’t?

But, again, that’s all hindsight. It’s easy to say, “Oh, it wasn’t that bad what they went through.” But, remember, at the time they went through their own personal hell, they didn’t know it would be over in a year.

Using your test, it would be more accurate to say: Would you risk being sent to prison for a rape you did not commit (and undoubtedly suffer a few rapes yourself while in prison), lose your job and reputation, and be required to register as a sex offender for the rest of your life for the chance that, if the unjust case against you was dismissed, you would win millions?

Maybe you value your liberty and sexual autonomy much less than I. But even for my share of $30 million, I wouldn’t risk going to prison on a false rape charge and living the rest of my life as a registered sex offender.

13 Bill Poser 09.08.07 at 1:41 am

I’m curious as to what that several million dollars in legal fees went for. Is that mostly lawyers’ time? If so, it seems like a lot. $3,000,000 will get you a year’s worth of three $500/hr. lawyers working 8 hours per day. What on earth were they spending that much time on? The lab tests can’t have cost more than a few tens of thousands. How do such huge fees break down?

14 William Nuesslein 09.08.07 at 9:36 am

Enough already with Nifong and Durham!

Was the DUKE case worse than Tawana Brawley? I don’t think so. According to Wikkippia Mr. Pagones who was wrongly accused in the Brawley case was awarded $345,000 from Sharpton Maddox and Mason, and $185,000 from Brawley. Pagones had to fight for years for his due from Sharpton, and he never got a dime from Brawley. The others accused in the Brawley case got nothing, and Mario Coumo and Robert Abrams skated.

Mrs. Pirro of Westchester County prosecuted and got a conviction against a teacher who foolishly tutored children in her home. It was horrible.

In my opinion, it was not the high priced lawyers who saved the day in the Duke Case; it was the DNA data, which data should have been suppressed as it related to sexual history. We have to rethink the changes in law coming from the Women’s Lib movement. Let’s not miss the forest for the trees.

The Duck boys will probably do well in life, and the families got some relief for their legal expenses. The continuing dumping on Nifong is morphing into the fascism of the gang of 88.

15 fffjfff 09.08.07 at 12:00 pm

Poser’s comment actually voices a very common misunderstanding among laypersons. I have spoken to non-lawyers about this case, and they uniformly cannot understand why legal fees are so high, in this and in other criminal cases.

Frankly, I was very suprised to hear that the fees were so low – working out to only a million per person. I suspect the true costs were higher in fact, but that the figure was decreased for public consumption to avoid a risk of perception that they boys bought their innocence or that the lawyers were overcharging.

As to Poser’s question, I cannot give a detailed answer, I don’t really know all the facts. But the idea in litigation is to be prepared for all possible tacks the other party can take at trial. In this case, the movements and history of the entire lacrosse team had to be tracked, all cell-phone records and electronic records had to be searched, all possible alibis for all people on the team had to be found, and a detailed timeline of the accusers bizarre life history had to be rapidly researched and compiled.

Each victim here needed a lot more than one lawyer: he needed several lawyers for different parts of the case: some for DNA evidence, some for civil rights matters, some for sexual assault specifically. Each lawyer needs various assistants and forensic experts backing him up. All of this went on for many months. You would need a lot more than three lawyers here – probably more like 40 people working for the better part of a year.

As a point of reference, in really complex white-collar cases, the defense costs are in the tens of millions of dollars. In patent litigation, costs of one to two million dollars per month in defense are routine, and big cases’ fees run around fifty million.

Let me reemphasize here that my comments on the Duke case costs are entirely speculation. I have no actual knowledge of the breakdown.

16 PatW 09.08.07 at 2:34 pm

William Nuesslein your ignorance of this case is astounding. Do you not realize that the Duke players were indicted? That they were railroaded by the state?

Don’t you know that NOTHING like that occured in the Brawley case? That it was simply kooks making wild accusations that had no force of law?

17 Bill Poser 09.08.07 at 3:37 pm

I’m not quite as naive as fffjfff suggests-I’m well aware that fees are often much higher than this, and I have plenty of contact with lawyers, such as my brother and my sister-in-law. I understand why some cases are so expenses – where vast numbers of documents have to be reviewed, many witnesses are involved, elaborate analyses of financial records are needed, etc. What I am wondering about is the details in cases such as this. Even if it is true, for example, that a lawyer specializing in DNA evidence must be brought in for each defendant, why does someone already a specialist need to spend many hours on this? I understand why vast numbers of documents may be involved in an antitrust case or some kind of corporate fraud, but in a rape case?

18 lrbinfrisco 09.08.07 at 7:16 pm

This wasn’t a rape case. It was an intentional frame by a DA and police who attempted to make up inculpatory evidence and go to great lengths to hide exculpatory evidence. It included a judiciary that ignored large parts of the constitution and state and federal law. It necessitated combating a national smear campaign against the accused headed by many special interest groups.

19 Joe 09.09.07 at 12:37 am

Wow, the hypocrisy here is stunning. Exorbitant legal fees and demands are condemned, if not ridiculed, unless you happen to agree with the latest cause.

Someone asked if I would give up my constitutional rights for $30 million. Damn right I would and so would most people. Please get real. These demands are outrageous and should be roundly condemned by everyone concerned with a legal system run a muck.

(Plus, there is definitely something wrong with a system that can allegedly create $1 million in legal fees in such a short period of time.)

20 lrbinfrisco 09.09.07 at 2:10 pm

Someone asked if I would give up my constitutional rights for $30 million. Damn right I would and so would most people. Please get real. These demands are outrageous and should be roundly condemned by everyone concerned with a legal system run a muck.

So you would trade your right to live free and own property for $30 million. Now that is stupid. You get your $30 million and the government immediately takes it away from you and you can’t do a damn thing about it because you just gave up you constitutional rights. Let me tell you about a bridge that I have for sale.

21 Joe 09.09.07 at 3:52 pm

So you would trade your right to live free and own property for $30 million.

Don’t change the argument–we are talking about a TEMPORARY loss of some rights through abuse by a prosecutor, not the right to love free and own property. These players were not falsely imprisoned, they did not suffer physical harm. In fact, they didn’t lose their other constitutional rights. Please, tell me how awarding these men $30 million isn’t an offensive joke.

(Even taking my statement completely out of context, it would be a given that I would keep the $30 million. If you believe most people wouldn’t make that trade, you are in queue for purchasing that bridge.)

22 Jake 09.09.07 at 7:47 pm

I would only point out that Nieporent’s allusion to “unbounded discovery rules” has no apparent connection whatsoever to the Nifong/Duke lacrosse case. The case had/has nothing to do with “unbounded discovery rules.” So why does Nieporent slip in this complaint? Apparently any example of the law gone wrong can be expanded to address any other flaw in the legal system you please.

23 lrbinfrisco 09.09.07 at 8:40 pm

There was nothing temporary about the loss of the rights for the Duke players and it wasn’t just NiFong. The Durham PD played every bit as much a part in this crime as NiFong did. The PD still refuses to aknowledge their errors or make any changes to prevent this from happening again. The Durham PD still has a policy to apply the law more harshly to Duke students.

Please tell me how not holding the City of Durham accountable for this illegal behavior and makeing it pay a significant punnishment isn’t an offensive joke? This isn’t about the Duke players getting their just rewards, it’s about Durham getting it’s just punishment. I’m pretty sure that most of that money is earmarked to pay for lobbying efforts and other law suits to effect reforms in the corrupt NC and Durham legal systems. Currently you have no right to a speedy trial in Durham or NC unless you consider waiting several years for a trial is speedy. The boys expressly were denied their request for an immediate evidential hearing and had to wait almost 1 year before the charges were dropped. Maybe you don’t believe in a right to a speedy trial. They had police create false evidence to frame them and the police still haven’t apologized or done anything to change this. That’s hardly temporary. And they faced the very real possiblity that they could have spend the rest of their lives behind bars for a fictious crime that the DA and the police knew never happened. I suppose you’d take a 50/50 shot at getting $30 million if you won but getting nothing and spending the rest of you life in jail if you lost. It was a very close thing that they weren’t convicted.

Maybe you think that attempted murder shouldn’t be punished severely just because the assailant failed. This isn’t about rewarding the Duke boys, but about punishing Durham.

24 Deoxy 09.10.07 at 9:53 am

Firstly, I think everyone here supporting $30 million for the Duke 3 does certainly agree that the system is ridiculously expensive, and that that needs to be changed (badly).

HOWEVER, that doesn’t mean that it HAS been changed, or that the INNOCENT in such a case should be bearing the exorbitant cost.

Secondly, as lrbinfrisco pointed out, “This isn’t about rewarding the Duke boys, but about punishing Durham.”

Thirdly, as has been repeatedly pointed out, no one with an ounce of sanity would want to be in the position the Duke 3 were in LAST year… only now, when we now how it turned out.

The “I would do that for $X million” applies quite well in certain cases (being “verbally abused” by one’s supervisor comes to mind), but this is not one of them.

25 OBQuiet 09.10.07 at 11:27 am

Jake,

It seemed clear to me that in referencing discovery, he was pointing out that the City and PD had a disincentive to find and document what went wrong in allowing this prosecution to go forward. If they did find out what they should have done differently, discovery for the civil suit would turn their work against them. It would be fiscally, if not morally, better for them to not find and correct their mistakes. Or at least not to DOCUMENT that discovery.

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