Ex-Duke Players Ponder D.A. Lawsuit
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 case — such 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.
In his first comment on that decision, Nifong said in a statement Thursday: "To the extent that I made judgments that ultimately proved to be incorrect, I apologize to the three students that were wrongly accused."
Lesley Stahl will have an exclusive interview with the three players on "60 Minutes" this Sunday at 7 p.m. ET/PT.
He issued what appeared to be a plea to the students not to take any further action, saying, "It is my sincere desire that the actions of Attorney General Cooper will serve to remedy any remaining injury that has resulted from these cases."
In the 60 Minutes interview, Finnerty tells Stahl that Nifong's apology does nothing to ease his pain. Finnerty says he blames the district attorney more than anyone else for causing harm to himself and his family.
Seligmann's attorney, Jim Cooney, said he would be advising his client's family of all of their legal options. "But nobody is racing to file any kind of a lawsuit at this point," he said.
But Cooney added bitterly: "You can accept an apology from someone who knows all the facts and simply makes an error," Cooney said. "If a person refuses to know all the facts and then makes a judgment, that's far worse particularly when that judgment destroys lives."
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.
Also, Rep. Walter Jones, R-N.C. may launch a federal probe into Nifong's actions. It is pretty obvious that Nifong did not protect the rights of these three students. He needs to answer," Jones told CBS News correspondent Kelly Wallace.
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.
"When he acts as an investigator and advises police, or makes representations to court which may be false, in all these situations he does not have absolute immunity," Banzhaf said.
But Norm Early, a former Denver district attorney who has worked for the National District Attorneys Association, said Nifong's actions alone are not enough to win a lawsuit. Nifong's intent is crucial.
"The protection of immunity is pretty broad unless it's ruled he had malicious intent or that it was something close to that," Early said. "It would be very difficult to prove a case against him."
The accuser could also be a potential target for a lawsuit. Cooper said his investigators concluded no attack took place.
"There's no question they've got a lawsuit against her if she's brought false charges against them, which may be even more easily provable than actions against Nifong," said Stan Goldman, a professor at Loyola Law School in Los Angeles.
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.