Three Duke lacrosse players who were charged with raping a stripper were exonerated on all criminal charges six years ago, but their civil suit against the City of Durham lives on—now the centerpiece of a petition in the U.S. Supreme Court.
Commonly known as the “Duke lacrosse case,” the scandal is “one of the most notorious episodes of police and prosecutorial misconduct in recent American history,” Williams & Connolly partner Kannon Shanmugam wrote in the petition, filed in May on behalf of players who were exonerated.
Shanmugam wants the high court in Evans v. City of Durham to find that a pair of police officers should not be immune from liability for conspiring with a prosecutor to fabricate evidence.
The saga began in March 2006, when Durham resident Crystal Mangum falsely accused a trio of Duke athletes—David F. Evans, Collin Finnerty and Reade Seligmann—of raping her at a lacrosse party.
Even though the evidence overwhelmingly discredited Mangum, then-Durham District Attorney Mike Nifong and police officers Mark Gottlieb and Benjamin Himan persisted with the investigation.
The officials’ misconduct included concealing both exculpatory DNA evidence and Mangum’s inconsistent statements; coercing witnesses; and creating an unduly suggestive photo array that only contained pictures of white lacrosse players from Duke, Shanmugam wrote.
Nifong, who made repeated statements condemning the lacrosse team at the time, was disbarred for his role in the scandal.
The athletes, meanwhile, settled with Duke in 2007. They also sued Durham and assorted city officials under 42 U.S.C. 1983 for violating their Fourth and Fourteenth Amendment rights.
Gottlieb and Himan moved to dismiss on qualified-immunity grounds. In December 2012, the U.S. Court of Appeals for the Fourth Circuit found that the officers could not be liable for constitutional violations because, while they may have helped concoct the phony evidence, Nifong was the one who charged the players.
The Fourth Circuit reasoned that Nifong’s decision to seek the indictments was an “intervening superseding cause” that broke the chain between the officers’ misconduct and the players’ seizure. The court conceded that Gottlieb and Himan would not have been immunized if they “misled or pressured” Nifong, but there was insufficient evidence of such actions.
Shanmugam argues that the decision runs counter to tenets of tort and conspiracy law. It also ignores Supreme Court precedent that fabrication of evidence to frame an individual is a constitutional violation in itself that merits remedy, he wrote.
“This is an important issue not just because of what our clients went through, but also for the broader principle that individuals who suffer from similar misconduct should have a remedy,” Shanmugam said.
The New York firm Brinckerhoff & Abady, which represents Seligmann, joined the petition, as did local counsel David Rudolf, of Charlotte. Williams & Connolly represents Evans and Finnerty.
For Shanmugam, who joined at the cert petition stage, Evans is the latest in a string of high profile criminal-related projects.
In the past two years, he has argued Fourth Amendment cases Maryland v. King and Bailey v. United States before the Court. In 2012’s Smith v. Cain, he won the reversal of a murder conviction on the grounds that prosecutors in New Orleans hid evidence from defense attorneys.
In the Duke petition, Shanmugam said circuits are deeply divided on whether and when prosecutorial actions should immunize investigating officers from liability. But, he argues, Gottlieb and Himan likely would not have gotten off the hook in other jurisdictions.
The Sixth and Second circuits hold officers accountable for the “natural consequence” or “reasonably foreseeable” result of their investigation regardless of a prosecutor’s subsequent action. Meanwhile, the Ninth Circuit does not grant immunity to officers who, despite prosecutorial misconduct, acted maliciously or with reckless disregard for the rights of the arrested person.
The Fifth, Seventh and Eleventh circuits agree with the Fourth in denying police investigators immunity if they mislead or pressure a prosecutor. However, Shanmugam argues that Gottlieb and Himan likely would not have won protection in those jurisdictions because they also consider whether the injury was the foreseeable result of prosecutorial misconduct.
As part of his appeal, Shanmugam also points out that the Court in 2009 heard a similar case, Pottawattamie County v. McGhee, which settled before the justices could issue a decision.
Pottawattamie County asked whether a prosecutor who conspires with police officers to fabricate evidence is immune from liability. The United States took the position that the prosecutor should get absolute immunity, but officers could be liable for conspiracy.
Jamie Schuman is a freelance writer and graduate of The George Washington University Law School.