Nifong files for bankruptcy; city replies to suit

Staff WritersJanuary 16, 2008 

Mike Nifong, the fallen district attorney who lost his job and his career over his zealous prosecution of the Duke lacrosse case, filed for bankruptcy protection Tuesday in federal court, a move described by one legal expert as "throwing in the towel."

In the filing, Nifong listed assets of $243,898 and debt of $180.3 million -- including $30 million to each of the six lacrosse players who have sued him.

The document was filed on the deadline day for Nifong and other defendants to respond to allegations in a civil suit filed by the three exonerated lacrosse players that Nifong pursued criminally for most of 2006 -- Dave Evans, Collin Finnerty and Reade Seligmann.

"He's basically throwing in the towel" on the lawsuits, said Jeb Jeutter, a Raleigh lawyer whose area of expertise is debtors' and creditors' rights. "He has said either I don't want to or I don't have the resources to defend this lawsuit so I will file bankruptcy and I can walk away with the exempt assets I have."

The city of Durham, the principal target of the players' lawsuit because of its deep pockets, filed its motion to dismiss just minutes before the 11:59 p.m. deadline. The city denies any legal responsibility for either the arrest or prosecution of the three formerly accused lacrosse players, and downplays the suffering of the three accused.

"The central fact of this case is that the plaintiffs cannot recover against Mr. Nifong's employer -- the State of North Carolina -- because it has absolute immunity," the city's motion reads.

"As a result, plaintiffs have resorted to overreaching conspiracy claims and other novel legal theories that attempt to impose legal liability on the city of Durham, Durham police officers and city administrators for the actions of an overzealous prosecutor. All this creativity is in aid of an effort to impose on Durham taxpayers untold millions of dollars in damages for Plaintiffs who were publicly exonerated and never spent a moment in jail."

Many of the individual city employees named in the lawsuit also filed motions to dismiss cases against them late Tuesday.

When Evans, Finnerty and Seligmann filed suit in October, they alleged that the city and its police department played a key role in pushing forward with a gang-rape case against them that was flawed from the start.

The players spent nearly 13 months fighting charges that were dropped in April 2007 by State Attorney General Roy Cooper, who declared them innocent of all charges.

The Nifong bankruptcy filing puts an unusual twist on the course of the players' suit. It puts the case in a holding pattern until the bankruptcy issues can be settled.

Options include severing Nifong from the case or proceeding with the allegations against him, even if he is not present to contest them.

The players allege that Nifong, the city, the DNA laboratory hired by the disbarred former prosecutor and numerous police officials and the former lead investigator from the District Attorney's Office conspired to falsely charge the former Duke students with rape. The charges stemmed from a spring break team party in March 2006.

The suit contends that Nifong, Durham police and others maliciously conspired to charge the players with rape even though they knew that allegations were "a total fabrication by a mentally troubled, drug-prone exotic dancer whose claims, time and again, were contradicted by physical evidence, documentary evidence, other witnesses, and even the accuser herself."

The city's motion aims to wash its hands of the charges brought against the players. Their attorneys claim that Nifong decided independently of any city official to send the case to a grand jury, which led to criminal charges being filed. The city says that means Nifong's actions, not the city's, caused any rights violations that may have occurred by the players' arrests.

Durham City Manager Patrick Baker, former police Chief Steven Chalmers, current Deputy Police Chief Ron Hodge and four other current police officials jointly filed a separate motion to dismiss.

Part of their claim centers on the fact that the accused players were never tried or convicted, and thus can't claim their constitutional rights were violated.

"They essentially complain of a violation of a right to be free of criminal investigation," the brief reads.

"Plaintiffs seek constitutional protection for a right to be free from a 'malicious investigation,' within the contours of the Fourth and Fourteenth Amendment. Neither Amendment offers that specific constitutional protection."

Durham police Sgt. Mark Gottlieb and Investigator Benjamin Himan, who spearheaded the investigation of Mangum's claims and have been criticized for failing to raise red flags at discrepancies in her story, each filed separate motions to dismiss late Tuesday. Gottlieb in particular has been accused of doctoring notes after indictments were brought to make Mangum's initial descriptions of her alleged assailants more closely match the three who ultimately stood accused.

Gottlieb's motion, like the city's, argues that Nifong bears any responsibility for bringing charges. Gottlieb merely gave Nifong "a thorough reckoning of everything [Gottlieb and Himan] had learned in their investigation, including all exculpatory evidence," Gottlieb claims.

The motion also cited some legal precedents indicating that Gottlieb should enjoy immunity from civil liability "even if Sgt. Gottlieb engaged in conduct that somehow violated plaintiff's constitutional rights."

David Addison, a police corporal also named in the suit for making what the former players' attorneys called inflammatory public statements about the case, also filed a motion to dismiss.

In the fall, the players sought $30 million total from the city to dismiss the suit.

Some lawyers familiar with the case said Nifong might still have to pay damages despite his bankruptcy filing if the players can prove "malicious and willful" injury. In addition to the initial lacrosse case defendants, three players who were not charged have also sued Nifong and others.

Neither Nifong nor his attorney Jim Craven could be reached for comment Tuesday.

Other defendants sued by Finnerty, Seligmann and Evans took tacks similar to the city's in their responses on Tuesday.

Linwood Wilson, Nifong's former investigator, asked that the case against him be dismissed, arguing that he had absolute immunity from such civil claims as prosecutors do for their work as advocates inside the courtroom.

Brian Meehan, the former director of DNA Security, the private Burlington lab that did DNA testing for Nifong, asked for the case against him to be dismissed, as did DNA Security. or (919) 932-8741

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