Appeals court denies request for new lacrosse hearing.

Jan. 17, 2013 @ 06:32 PM

The 4th U.S. Circuit Court of Appeals has rejected a Durham lawyer’s request that it reconsider a recent decision in the Duke lacrosse case that tossed most of the claims three lawsuits had made against the city.

Court clerks notified lawyers this week that “no judge” of the court’s 15 had supported re-opening a panel’s decision last month that went against members of Duke University’s 2005-06 men’s lacrosse team.

The refusal means that the only judges who now can overturn the Dec. 17 ruling are the nine that sit on the U.S. Supreme Court.

Three players – David Evans, Colin Finnerty and Reade Seligmann – through their lawyers have signaled that they’ll ask the Supreme Court to review the case. They want to regain the chance to pursue federal civil-rights claims against the city. The three were indicted and later exonerated on rape charges.

Durham lawyer Bob Ekstrand – who represents unindicted former players Ryan McFadyen, Breck Archer and Matt Wilson – had asked the 4th Circuit to consider allowing a common-law obstruction-of-justice claim against Durham police.

Ekstrand’s request is what drew the court’s rejection notice.

The appeals court in essence upheld the decision of three judges to allow Evans, Finnerty and Seligmann to pursue only a malicious-prosecution case against the detectives who in 2006 investigated stripper Crystal Mangum’s false rape allegations.

They and 41 unindicted players also can pursue a claim that the city violated their rights under North Carolina’s constitution by invoking governmental immunity, the appeals court has said.

Players have a couple of months yet to file a review request with the Supreme Court. Their odds of getting a review are low: The Supreme Court receives thousands of such applications each term and typically accepts fewer than 100.

The Supreme Court’s justices usually only weigh in to resolve differences in legal doctrine amongst lower courts, or when a case promises to plow new ground.

A Florida International University law professor who’s monitored the lacrosse case, Howard Wasserman, said the players perhaps can entice justices to wade in by arguing that the 4th Circuit adopted “a fairly narrow standard” to decide when a prosecutor’s decisions immunize police from civil-rights claims.

The 4th Circuit agreed with city lawyers that because former District Attorney Mike Nifong was a state employee, and because there was no allegation by players that police had lied to Nifong about the case, he and not detectives or the city was solely responsible for the decision in 2006 to ask a grand jury to indict Evans, Finnerty and Seligmann.

But the Supreme Court “has never firmly ruled on when the independent action of one state actor sort of cleanses the misconduct of another state actor,” Wasserman said. “They’ve hinted around at it in a couple of opinions, but they’ve never confronted it head-on.”

Both opinions Wasserman mentioned sided with law enforcement.

One came last year, when a unanimous Supreme Court ruled that everyone who testifies in front of a grand jury, police included, has absolute immunity from any civil-rights lawsuit stemming from their testimony.

City lawyers contend that that decision strengthens their argument for dismissal of the players’ claims.

The court also dealt with the issue tangentially in 2006, in a case decided on a 5-2 vote. It said a business executive who claimed he was the victim of a retaliatory prosecution had to show the indictment against him had always lacked probable cause if he was to be allowed to sue his pursuers.

The lacrosse players have always argued the case against them lacked probable cause, as Mangum changed her story numerous times. But the 4th Circuit gave that argument short shrift.

A judge who participated in the Dec. 17 ruling, Roger Gregory, said it was “implausible to infer that [detectives] knew Mangum was lying and therefore” were trying to frame the players, as “the fact that an alleged rape victim changes the details of her story does not always mean she is lying.”