The 14 defendants named in the civil rights lawsuit filed Oct. 5, 2007 by wrongly indicted lacrosse players responded to charges this week, with several making motions for dismissal.
Responses were due electronically by midnight Tuesday, although some were not available at press time. Attorneys for the plaintiffs-Reade Seligmann, Collin Finnerty and David Evans, Trinity '06-now have until Feb. 7 to issue their own responses.
The suit was filed against disgraced former Durham district attorney Mike Nifong, Linwood Wilson, Nifong's chief investigator, the city of Durham and several employees of the Durham Police Department. It also named DNA Security Inc.-the private laboratory enlisted by Nifong to perform DNA testing-Richard Clark, the owner of the lab, and Dr. Brian Meehan, the firm's laboratory director.
Nifong filed for bankruptcy Tuesday, which may mean he will not issue a further response.
The complaint calls the case for which the three seek damages "one of the most chilling episodes of premeditated police, prosecutorial and scientific misconduct in modern American history," and claims the parties violated the former players' rights under the Fourth and 14th Amendments.
DPD defendants
Formal legal action against Maj. Stephen Mihaich, commander of DPD's Investigative Services Bureau, ended Monday, after his attorneys argued his position at DPD was not relevant to the lacrosse investigation.
"What the plaintiffs wanted to do is sue the investigators and everybody in the chain of command above them," said attorney Patricia Kerner, who represents Mihaich. "They were mistaken about [Mihaich's] role in the police department."
The voluntary motion for dismissal was without prejudice, meaning a new claim against Mihaich could be filed, should discovery and depositions reveal the plaintiffs do have a basis for suing him.
"But I don't anticipate that happening," Kerner added.
Mihaich's name was omitted in an amended complaint filed Dec. 11 that added City Manager Patrick Baker to the list of individual defendants. Kerner said, however, Mihaich was not technically dropped from the proceedings until the motion was approved Monday.
Mihaich remains listed as a defendant in the lawsuit filed Dec. 17 by attorney Bob Ekstrand, Law '98 and a lecturing fellow at the School of Law, on behalf of three unindicted players, Breck Archer, senior Ryan McFadyen and Matt Wilson, Trinity '06. Kerner said she plans to ask Ekstrand to drop Mihaich from that suit as well.
Ekstrand's filing also targeted another DPD officer, Sgt. Laird Evans, whom the suit contends acted as a supervisor for DPD Investigator Benjamin Himan.
The Herald-Sun reported, however, that the chain of command for the lacrosse case did not include Mihaich.
"Both are included in their capacities as supervisors," Ekstrand wrote in an e-mail, adding that the basis for Mihaich and Evans' inclusion is detailed in the suit.
DNA Security, Inc. defendants
The response from DSI calls the suit against DSI defendants "extraordinary... [because, among other reasons,] expert witnesses are absolutely immune from suit and... none of the DSI defendants owed a duty to plaintiffs."
The plaintiffs allege that defendants from DSI deprived them of exculpatory evidence in failing to disclose the fact that DNA from other men was found on or near Crystal Mangum, the accuser in the lacrosse case. The lawsuit would prevent DSI and Meehan from providing testing reports or expert testimony in court proceedings for a decade, and testing reports requested by DPD or the district attorney's office would have to include raw data in addition to the results.
In May 2006, DSI released a report pursuant to Nifong's request stating that none of the DNA extracted from team members matched evidence from Mangum, but failed to mention the presence of other DNA.
Meehan served as laboratory director at DSI until he stepped down in November. He testified at a North Carolina State Bar Disciplinary Hearing Committee- proceeding-which eventually led to Nifong's disbarrment-that Nifong had asked that the report only include test results related to the lacrosse players. Meehan said, however, Nifong had been made aware of all the results.
The lab claims in its response that it was Nifong's responsibility to disclose exculpatory evidence, including all test results.
Defendant Wilson
Wilson's motion, which was filed in Greensboro Monday, also calls for absolute immunity from the civil complaint.
The Supreme Court grants absolute immunity to prosecutors to allow them to carry out their duties without worrying about potential future litigation, which Wilson says he is entitled to because he was working under Nifong as an investigator.
Wilson, who is not represented by a lawyer, performed a pivotal interview with Mangum in December 2006 that eventually led to the dismissal of the bogus rape charges because of inconsistencies in the accuser's account.
"Defendant Wilson is entitled to absolute immunity for his conduct as an investigator acting at the direction of a judicial officer performing prosecutorial functions," the motion, which cites numerous court cases as precedent, reads.
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