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Lax case slows as attorneys wrangle over words, motions

A legal war of words is brewing among those involved in the lawsuit filed by the three wrongly indicted members of the 2005-2006 men's lacrosse team against the city of Durham and former Durham district attorney Mike Nifong.

Progress on the case has stretched over a series of filings and legal quibbles, as lawyers for former lacrosse players David Evans, Trinity '06, Collin Finnerty and Reade Seligmann alleged in an Aug. 4 filing that the city has not been thorough enough in collecting evidence relevant to the case, while Nifong has maintained that the case should be heard in bankruptcy court. Attorneys for the defendants want the judge to rule on the motions to dismiss before decisions are made about collecting discovery.

The legal papers state that key pieces of evidence from the original criminal case could have disappeared since the lawsuit was filed in October 2007. The (Durham) Herald-Sun reported that city officials have not yet acquired the computers used by the lead Durham Police Department investigators in the original criminal case. The city has also had difficulty acquiring records of communication between the 84 city officials pinpointed by the plaintiffs.

"Defendants contend that their motions to (partially) dismiss entitle them to decide, unilaterally, that all discovery should be postponed indefinitely, while memories fade and documents are lost or misplaced, with the parties making no progress toward the 'just, speedy, and inexpensive determination' expected by the Federal Rules," the filing reads.

In a separate filing, Nifong's lawyer Jim Craven, Law '67 and Divinity '81, responded to the suit against his client with an Aug. 15 legal brief stating that the former district attorney, who filed for bankruptcy protection in January, cannot afford to pay the damages sought by the former lacrosse players. Craven's attempt to have the case heard in bankruptcy court was denied by a judge in May.

"That is an expected result as it would just not make sense to have this tried in the bankruptcy court only to have it retried in the federal court," said Jeffrey Coyne, Law '79 and a senior lecturing fellow at the School of Law. "The basic concept is a lot of folks in Chapter 7 [bankruptcy] believe they will get a better shake from a bankruptcy court judge than they will from a district court judge or from a jury."

Coyne added that it would be rare for a bankruptcy court to agree to hear a case such as Nifong's before it is heard in federal court.

Craven's brief states that the plaintiffs should not expect to receive any money from the Nifong. The brief also responds to requests for specific reforms in DPD.

"If they don't want money, what do they want?" Craven wrote in the legal filing. "The bulk of the prayer for relief we suggest really answers the question. They want control over the Durham Police Department."

Craven's brief also denies that the plaintiffs suffered any physical injury or financial hardship as a result of Nifong's prosecution. Craven says in the document that the defense expenses incurred by the former lacrosse players in the 2006 criminal case may have been "paid or reimbursed by a non-party Duke University alumnus."

"I can't remember where I first heard that about the legal fees, etc. being picked up by a Duke alumnus, but that rumor has been widespread for some time," Craven wrote in an e-mail to The Chronicle. "At some point, in whatever court we end up in, that question will be asked, along with questions... [regarding] injury."

Lawyers representing the players could not be reached for comment.


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