Why The Defendants In The Duke Lacrosse Rape Case Can - And Should - Sue Durham's District Attorney For Malicious Prosecution If They Are Acquitted

This is Part Four in a series of columns on the Duke Lacrosse rape case by the author. Parts One, Two, and Three can be found in the guest column archive on this site. - Ed.

By now, the country knows the case: Three former Duke lacrosse players -- David Evans, Reade Seligmann, and Collin Finnerty -- currently face charges of sexual assault, rape, and kidnapping. The charges are based on claims by a 27-year-old student from a nearby college who was hired to perform as a stripper at a March 13 off-campus house party attended by most of the team. She claims the three men held her prisoner in a bathroom for some thirty minutes and raped her there.

But since the initial press conferences in which D.A. Mike Nifong presented the accuser's story as true, a very different story has emerged - in large part because the D.A. has since then turned over to the defense, as required, 1814 pages of discovery material. As a result, the defense has implored the D.A. to dismiss the charges and let these young men have their lives back.

D.A. Nifong, however, has flat-out refused, rendering a trial in this matter a near- certainty. Equally as certain, is the likely outcome of an across-the-board acquittal. It seems impossible that not a single juror, among twelve, would find the evidence to raise a reasonable doubt. And in my view, based on the evidence that has surfaced so far, the vote for acquittal could well be unanimous.

In this column, I'll update readers on the status of the case and consider an important question: In the very likely event of an acquittal, could the defendants successfully sue D.A. Nifong for malicious prosecution?

The Facts So Far: Evidence that Overwhelmingly Supports the Defense

Here's where the case currently stands:

Very soon after the indictments were issued, the defense was able to produce various documents and photos that undermine the accuser's claims.

This evidence included ATM receipts, dorm card logs, cell phone records, independent witness statements, and perhaps most notably, time-stamped digital photographs. (In Part Two of this series, I detailed, in particular, the evidence that conclusively establishes defendant Reade Seligmann's innocence, and thus casts doubt on the accuser's entire story.) If the photos' time-stamps are indeed accurate, they will undoubtedly prove that events could not have happened the way the accuser claims. Indeed, all this evidence strongly suggests that the crimes she describes may not have occurred at all.

And that was just the evidence the defense produced on its own! The prosecution's evidence, too, only served to bolster the defense case. As I explained in Part One of this series, early DNA tests failed to connect any Duke Lacrosse player to any evidence from the accuser's person. Moreover, subsequent DNA testing revealed that semen from the accuser's person belonged to some other man.

And more recently, when D.A. Nifong complied with his duty to turn over discovery material, the 1814 pages he produced only undermined the accuser's statements further. There was no "smoking gun" proving the prosecution's case; far from it.

Here are the facts, as revealed by the discovery material.

On March 13, the night the accuser says she was raped, the police were called not by the accuser herself, but by Kim Pittman - the second stripper from the party. Pittman called the police not to report a rape, but to get help getting the accuser out of her (Pittman's) car.

The police deemed the accuser incapable of taking care of herself, and requested an involuntary commitment to the Durham Access Center. Once there, the accuser claimed she was raped and was transported to a hospital.

But in a subsequent conversation with police, the accuser recanted her rape accusation, stating that no one forced her to have sex. A few minutes later, however, she changed her story yet again, claiming she was indeed raped.

At some point, the accuser also told authorities she was raped by five players, not three. And this wasn't the end of her contradictory statements: A June 26 defense motion filed on behalf of defendant Seligmann counts "approximately one dozen conflicting statements [by the accuser], including one story where she alleged her co-worker robbed her of $2,000.00"

No wonder that, on March 20, Pittman gave a statement to the police in which she declared the accuser's accusation of rape to be "a crock".

These are the facts, people. This is not defense "spin." And these facts strongly suggest that the accuser could well be lying - and thus that it might well be suborning perjury for the D.A. to put her on the stand. They also strongly support the defense position that the three defendants are completely and totally innocent of the charges. And they incontrovertibly establish not just reasonable doubt, but doubt that's strong, pervasive and compelling.

Yet D.A. Nifong has vowed not to drop the case. He's tried to explain some of the inconsistencies in the accuser's statements by claiming she was slipped a "date rape" drug. But no toxicology report has been forthcoming, nor has any other evidence supporting his claim. And that means his claim, thus far, seems to be mere speculation. It's true that a date rape drug might explain some of the accuser's confusion. But so could mental illness, or simply imbibing excessive amounts of alcohol.

Can the Defendants Sue the D.A. for Malicious Prosecution?

It appears, then, that D.A. Nifong is forging ahead in light of a complete lack of credible evidence to support a conviction. This decision has already cost the defendants their good names -- and has also caused tremendous distress to their families, as well as costing them immense amounts of money.

For instance, Reade Seligmann's father, Philip, reportedly borrowed $400,000 from a close friend for his son's bail. (The two other defendants also made their $400,000 bail somehow.) In an affidavit, Philip Seligmann pointed out that Reade "has never been involved in the criminal justice system in any state before the filing of these charges," and said that "[w]e are committed as a family, along with Reade, to do everything necessary to restore our good name."

Even if these three defendants are, in the end, acquitted - as seems overwhelmingly likely -- is that enough to remedy the grave injustice being perpetrated on seemingly innocent defendants?

Perhaps not. In this unusual case, perhaps an unusual remedy is appropriate.

Ordinarily, prosecutors enjoy absolute immunity from civil liability in connection with their pursuit of a criminal case. That makes sense: As the Supreme Court has commented, exposing prosecutors to civil liability would undermine the functioning of the criminal justice system.

But, not all prosecutorial conduct enjoys absolute immunity. To the contrary, in Buckley v. Fitzsimmons, the Supreme Court held that a prosecutor was not absolutely immune from civil liability for false statements made in a press conference and for other pre-trial investigative conduct; in that case, only "qualified immunity" applies.

The Court explained that this is because "[t]he conduct of a press conference does not involve the initiation of prosecution, the presentation of the state's case in court, or actions preparatory for these functions." In other words, press conferences aren't an integral part of the prosecutor's job; they are an extra function that he chooses to perform. Prosecutors could opt not to do any press conferences, if they so chose, and still perform all the core duties of prosecution.

Thus, there may indeed be a way for the defendants, if acquitted, to sue D.A. Nifong for malicious prosecution: They must hinge their claim on his statements at press conferences.

D.A. Nifong gave, by last count, close to seventy press interviews in the weeks preceding the filing of formal charges in this case. To succeed in its claim, the defense would likely need to show that he made knowingly false or misleading statements - mischaracterizing evidence, or omitting to mention important evidence favoring the defense. Thus, the question for the defense becomes this: What did Nifong know, and when did he know it?

Prosecutors Generally Deserve Immunity - But Not in A Case Like This One

It is one thing to zealously advocate for the rights of alleged victims. Indeed there is many a noble prosecutor who fights tooth and nail in the absence of forensic evidence to support an accuser's cause, simply because he believes the accuser's credible account of the crime, and he knows that there isn't always forensic evidence to support the truth.

Yet it is quite another thing for a prosecutor to express unwavering support for an accuser whose account of the crime is no longer credible in light of the forensic and other objective evidence that exists. At that point, admirable support for a credible accuser morphs into an ugly reluctance to admit error - and, indeed, into possible collaboration in a false accusation made against an innocent person.

If any of Mike Nifong's press conference statements do indeed to be false, I can only hope the defendants will have the spirit and the resources left, at the end of the day, to seek for themselves what this prosecution seems to have all but abandoned: Justice.