Time will tell as to whether Nifong or the City or County of Durham will be found liable to damages or agree to pay a settlement, that is, assuming the defendants even decide to sue.
As to the photo identification, I don't believe the mere fact that a photo line-up included only lacrosse players or that it did not conform to state guidelines would necessarily make it unconstitutional (although we may learn other facts about the way it was conducted that would render it unconstitutional).
I do concede that the effort by Nifong to delay revealing materially relevant DNA evidence makes a 1983 claim a much closer case.
And I am not defending the current state of the law, or hoping that the defendants do not succeed in a civil claim, I'm simply trying to evaluate the potential claims as dispassionately as possible.
Have you read the ID session transcript? A detective on it says they are running it this way at the direction of Mr. Nifong.
The purpose of fillers on a line-up is to ensure that a witness not only needs to want to finger someone, but also needs to know what the person looks like. Had Precious been shown 100 photos, some of which were people on the team and some of which were people selected at random from police files, and she had managed to pick three team members, that would suggest that at minimum she had some clue what at least some of the team members looked like. If one or more of the people she picked were random fillers, that would suggest she didn't have such a good idea of what the attackers looked like; if two or more were fillers, that would pretty well show that she was just guessing.
By declining to use fillers, Nifong offered her "A multiple-choice test with no wrong answers" (forget who said that). Without fillers, there is no way to judge with what degree of certainty she made the identification.
"Time will tell as to whether Nifong or the City or County of Durham will be found liable to damages or agree to pay a settlement, that is, assuming the defendants even decide to sue."
Of course.
"As to the photo identification, I don't believe the mere fact that a photo line-up included only lacrosse players or that it did not conform to state guidelines would necessarily make it unconstitutional (although we may learn other facts about the way it was conducted that would render it unconstitutional)."
Agreed, but again, those facts are powerful circumstantial evidence that the procedure was intentionally designed to produce an unreliable identification. As I argued, "smoking gun"-type evidence of intent is not required for a section 1983 action to be successful.
"I do concede that the effort by Nifong to delay revealing materially relevant DNA evidence makes a 1983 claim a much closer case."
It sure does. And there have been many cases in which a 1983 plaintiff was successful after presenting far less impressive circumstantial evidence of intent than that in this case. Add to that the results of the disciplinary proceedings, and any plaintiff would have more than a decent chance of being successful, not to mention defeating a motion to dismiss.
"And I am not defending the current state of the law, or hoping that the defendants do not succeed in a civil claim, I'm simply trying to evaluate the potential claims as dispassionately as possible."
I agree with your approach.