Steve Hartsoe, AP April 13, 2007
Despite an apology from the prosecutor who pursued rape charges against their clients, the lawyers for three exonerated former Duke lacrosse players were weighing a lawsuit against him, and legal experts said their case could have merit.
Durham County District Attorney Mike Nifong’s issued a carefully worded apology to the players on Thursday, but it may not have been enough to prevent the former players from suing him.
So far, attorneys for David Evans, Reade Seligmann, and Collin Finnerty have not said whether they plan a civil action against Nifong. But they have not ruled it out.
Prosecutors generally have immunity for what they do inside the courtroom, but experts said that protection probably doesn’t cover some of Nifong’s more questionable actions in his handling of the casesuch as calling the lacrosse players “a bunch of hooligans” in one of several interviews deemed unethical by the state bar.
“I think their chances of success suing Mr. Nifong are reasonably good, despite what we call prosecutorial immunity,” said John Banzhaf, a professor at the George Washington University School of Law.
On Wednesday, North Carolina Attorney General Roy Cooper threw out the case against the three young men, pronounced them innocent and delivered a withering attack on Nifong, portraying him as a “rogue” prosecutor guilty of “overreaching.” Cooper said Nifong rushed the case, failed to verify the accuser’s allegations and pressed on despite the warning signs.
Separately, the North Carolina bar charged Nifong months ago with several violations of professional conduct that could lead to his disbarment. The case is set for trial before a bar committee in June.
Among other things, the bar said Nifong made misleading and inflammatory comments about the athletes, even before they were charged. In the early days of the case, for example, Nifong said several times that members of the lacrosse team were not cooperating with investigators. Not true, according to court documents.
Experts said the ethics charges could form the basis for a lawsuit seeking damages from Nifong.
“Ordinarily, a prosecutor has absolute immunity for the actions he takes in preparation for a case, but there are some caveats to that, and one of them is he does not have absolute immunity for misleading statements he gives at press conferences,” said Shannon Gilreath, an adjunct professor at the Wake Forest University School of Law.
Other actions Nifong took outside of the courtroom could open him up to a lawsuit, Banzhaf said. Nifong, among other things, directed the police lineup at which the accuser identified the three players; the lineup has been criticized as faulty. The bar has also accused Nifong of lying in court about having turned over all DNA test results to the defense.
Some have suggested the players and their families might sue Duke University, which has been heavily criticized in some quarters for suspending the players and canceling the lacrosse team’s season before the young men were even tried.
A Duke spokesman declined to comment on the prospect of a lawsuit.