RALEIGH, N.C. -- The disgraced district attorney in the Duke lacrosse sexual assault case apologized to the three athletes in a carefully worded statement Thursday as their lawyers weighed whether to sue him -- and some legal experts say they have a case.
While prosecutors generally have immunity for what they do inside the courtroom, experts said that protection probably doesn't cover some of Mike Nifong's more questionable actions in his handling of the case -- such as calling the lacrosse players "a
bunch of hooligans" in one of several interviews deemed unethical by the state bar.
"I think their chances of success suing Mr. Nifong are reasonably good, despite what we call prosecutorial immunity," said John Banzhaf, a professor at the George Washington University School of Law.
On Wednesday, North Carolina Attorney General Roy Cooper threw out the case against the three young men, pronounced them innocent and delivered a withering attack on Nifong, portraying him as a "rogue" prosecutor guilty of "overreaching." Cooper said Nifong rushed the case, failed to verify the accuser's allegations and pressed on despite the warning signs.
In his first comment on that decision, Nifong said in a statement Thursday: "To the extent that I made judgments that ultimately proved to be incorrect, I apologize to the three students that were wrongly accused."
He issued what appeared to be a plea to the students not to take any further action, saying, "It is my sincere desire that the actions of Attorney General Cooper will serve to remedy any remaining injury that has resulted from these cases."
So far, attorneys for David Evans, Reade Seligmann and Collin Finnerty have not said whether they plan a civil action against Nifong. But they have not ruled it out.
"We're certainly going to be advising him and the Seligmann family of all of their options. But nobody is racing to file any kind of a lawsuit at this point," said Jim Cooney, Seligmann's attorney.
Separately, the North Carolina bar charged Nifong months ago with several violations of professional conduct that could lead to his disbarment. The case is set for trial before a bar committee in June.
Among other things, the bar said Nifong made misleading and inflammatory comments about the athletes, even before they were charged. In the early days of the case, for example, Nifong said several times that members of the lacrosse team were not
cooperating with investigators. Not true, according to court documents.
Experts said the ethics charges could form the basis for a lawsuit seeking damages from Nifong.
"Ordinarily, a prosecutor has absolute immunity for the actions he takes in preparation for a case, but there are some caveats to that, and one of them is he does not have absolute immunity for misleading statements he gives at press conferences," said Shannon Gilreath, an adjunct professor at the Wake Forest University School of Law.
Other actions Nifong took outside of the courtroom could open him up to a lawsuit, Banzhaf said. Among other things, Nifong directed the police lineup at which the accuser identified the three players; the lineup has been criticized as faulty. The bar has also accused Nifong of lying in court about having turned over all DNA test results to the defense.
"When he acts as an investigator and advises police or makes representations to court which may be false, in all these situations he does not have absolute immunity," Banzhaf said.
But Norm Early, a former Denver district attorney who has worked for the National District Attorneys Association, said Nifong's actions alone are not enough to win a lawsuit. Nifong's intent is crucial.
"The protection of immunity is pretty broad unless it's ruled he had malicious intent or that it was something close to that," Early said. "It would be very difficult to prove a case against him."
Other potential targets for a lawsuit include the accuser herself. Cooper said his investigators concluded no attack took place.
"There's no question they've got a lawsuit against her if she's brought false charges against them, which may be even more easily provable than actions against Nifong," said Stan Goldman, a professor at Loyola Law School in Los Angeles.
In October, months before the bar filed its ethics complaint, Evans' mother warned in an interview: "Mr. Nifong, you've picked on the wrong families ... and you will pay every day for the rest of your life."
How much money they could get out of Nifong is unclear.
Nifong is a career civil servant, and his financial disclosure statement filed with the state suggests he is not especially wealthy. His only listed income is his salary of about $110,000, and aside from his home in Durham and some unspecified real estate in western North Carolina, he appears to have no significant assets outside of any mutual funds and retirement accounts.
"I think it's fair to say they're angry," Cooney, Seligmann's attorney, said of the families. "It's an anger of, 'What part of innocent don't you understand?' It's not, 'We're going to go take your house and pension plan.' There's no plan to seek revenge against anybody."
That has left some to suggest the players and their families might sue Duke University, which has been heavily criticized in some quarters for suspending the players and canceling the lacrosse team's season before the young men were even tried.
But Banzhaf said such a lawsuit is not likely to succeed, since university administrators did not have access to the facts of the case and were basing their actions on what they learned from Nifong.
A Duke spokesman declined to comment on the prospect of a lawsuit.
Goldman said the real aim of a lawsuit against Duke, an elite private school with a multibillion-dollar endowment, might be to win an out-of-court settlement and recoup what are sure to be staggering legal bills.
"I can see Duke University just settling with these guys, even if there isn't a tremendous basis" for a suit, Goldman said. "Duke's got a lot of money and been around a long time."