Monthly Law Journal Article: Civil Liability for Police Failure to Disclose Exculpatory Evidence, 2009 (9) AELE Mo. L. J. 101.
     A man's conviction for the abduction and sexual assault of a woman was overturned after new evidence was revealed and a key witness recanted her testimony. On retrial, the accused was found not guilty, and released, having served twelve years in prison. The accused then sued a police detective, a forensic consultant, and his alleged victim. A federal appeals court ruled that the statements of a potential witness who had not testified at the original trial should have been disclosed to the defense because they called into question, if not entirely discredited, the crime victim's identification of the plaintiff as one of her attackers, so that summary judgment was reversed on claims arising from the alleged failure to disclose exculpatory evidence. Claims against the detective for perjury, however, were barred by absolute witness immunity, since they were based on his trial testimony, instead of his role as complaining witness. Moldowan v. City of Warren, #07-2115/2116/2117, 2009 U.S. App. Lexis 17988 (6th Cir.), amended by Moldowan v. City of Warren, 2009 U.S. App. Lexis 18562 (6th Cir.).
     Despite the fact that police had obtained DNA evidence from a bite mark on a corpse excluding him as the person responsible for a murder of an old woman, he was arrested for the crime, and spent forty-two days in jail with charges pending. In a lawsuit claiming that his incarceration was the result of a state trooper's withholding of the DNA evidence, the plaintiff was awarded $400,000 in damages. A federal appeals court has upheld these damages as supported by the evidence, as well as the trial court's reduction of requested attorneys' fees from $292,463 to $118,882.50 to reflect the plaintiff's lack of success on some claims. Burke v. McDonald, #07-2691, 2009 U.S. App. Lexis 15784 (1st Cir.).
     Almost thirty years after four men were convicted of involvement in an organized crime "gangland slaying," the F.B.I. disclosed, for the first time, that it had all along possessed reliable intelligence undercutting the testimony of a cooperating witness whose version of the murder was the basis of the convictions, but had suppressed this information. All four convictions were vacated, but by then, two of the men had died in prison, the third had been paroled, and only the fourth was still incarcerated. The two surviving men, along with the estates of the two decedents, sued the U.S. government under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671-2680. After a bench trial, the court found the government liable, awarding over $100 million in damages. A federal appeals court, while commenting that the damage awards were "considerably higher than any one of us, if sitting on the trial court bench, would have ordered," nevertheless upheld the awards, finding that they were not "so grossly disproportionate to the harm sustained as to either shock our collective conscience or raise the specter of a miscarriage of justice." There was no liability for malicious prosecution, the court held, as the U.S. government had not initiated the murder prosecution of the four men by the state of Massachusetts, but liability was found on the basis of a state law claim for intentional infliction of emotional distress, applicable to the U.S. government through the FTCA. Limone v. U.S., #08-1327, 2009 U.S. App. Lexis 19239 (1st Cir.).
     Police officers were not entitled to summary judgment in a lawsuit claiming that they denied the plaintiff his constitutional rights by concealing allegedly exculpatory evidence. The plaintiff spent over 17 years incarcerated for a double homicide that he insists he did not commit, and he claims that Illinois state police officers, from the beginning, knowingly possessed and concealed evidence of his innocence and never disclosed this evidence to him, throughout his trial, his appeals, and most of his post-conviction proceedings. He was finally released in 2004 after a federal court concluded that "acquittal was reasonably probable if the jury had heard all of the evidence." The lawsuit further claims that Illinois state police officials who were not involved in the case at the beginning learned about the existing exculpatory evidence and that the state had possessed this evidence all along, but that, rather than advise a state appeals court that the state had prosecuted the wrong man, they "kept mum and took steps actively to conceal the exculpatory evidence." Qualified immunity, the federal appeals court ruled, was not available to the defendants because the due process right of a defendant to be told about exculpatory evidence is clearly established in Brady v. Maryland, 373 U.S. 83 (1963) and the cases which follow it. Steidl v. Fermon, No. 06-2017 2007 U.S. App. Lexis 16996 (7th Cir.).
     When the city allegedly violated a court order requiring the preservation of a motor vehicle that caught fire, instead destroying it and selling it for scrap, the occupants of the vehicle, injured in the fire, had an arguable claim for spoilation of evidence against the city, since this interfered with their possible products liability lawsuit concerning the vehicle. This was a valid claim even if the city acted unintentionally and negligently, when the city had notice of the court order. Ortega v. City of New York, #22913/2004, 809 N.Y.S.2d 884 (N.Y. Sup. Kings County 2006). [N/R]
     State trooper did not violate the First Amendment right of access to the courts of a vandalism victim by handling evidence with his bare hands and thereby making it useless for fingerprint analysis when there was no indication that he acted maliciously or deliberately. Additionally, trooper was acting in an objectively reasonable manner as the scattered firecrackers and CO2 canisters that he handled had been exposed to weather and were lying in snow and mud, and therefore were of "little value" for fingerprint analysis. Kampfer v. Vonderheide, 216 F. Supp. 2d 4 (N.D.N.Y. 2002). [N/R]
     Alaska Supreme Court recognizes claims for damages for spoilation of evidence by third parties. Claim by injured motorcyclists that state trooper intentionally removed driver of the truck which hit them from the scene of the accident in order to prevent him being tested for marijuana use stated a claim for interference with their right to pursue a lawsuit against the driver. Hibbits v. Sides, No. S-9630, 34 P.3d 327 (Alaska 2001). [2002 LR Mar]
     321:139 Officers were entitled to qualified immunity from homeowners lawsuit for losing all physical evidence relating to theft of $96,000 from an ice chest buried under their home. Harrell v. Cook, #97-3404, 169 F.3d 428 (7th Cir. 1999).
     304:56 Homeowners could sue city and officers for losing all physical evidence relating to theft of $96,000 from an ice chest buried under their home, including the ice chest; claim stated for denial of access to courts to file civil lawsuit to recover stolen money from alleged thief. Harrell v. City of Jacksonville, 976 F.Supp. 777 (C.D. Ill. 1997).
     307:106 City to pay $152,000 settlement for alleged negligent loss of aspirin bottle confiscated by police during investigation of death of two-year-old boy from aspirin overdose; lawsuit by boy's parents asserted that they could not succeed in their lawsuit against aspirin manufacturer for alleged defective bottle cap when bottle was not available as evidence. Solis v. Los Angeles Police Department, BC160875, Superior Court, Los Angeles, Cal., reported in Vol. 111 Los Ang. Daily Jour. No. 51, p. 1 (March 17, 1998).
     311:169 Claim that officers engaged in a "cover- up" of traffic accident in which vehicle driven by police officer's wife struck and killed a bicyclist stated federal civil rights claim for violation of right of access to the courts; lawsuit asserted that officers failed to preserve physical evidence and deliberately failed to subject motorist to alcohol testing. Delew v. Wagner, 143 F.3d 1219 (9th Cir. 1998).
     Editor's Note: " See also Swekel v. City of River Rouge, 119 F.3d 1259 (6th Cir. 1997), cert. denied, 118 S.Ct. 690 (1998), (Constitution guarantees plaintiffs the right of meaningful access to the courts, the denial of which is established where a party engages in pre-filing actions which effectively covers-up evidence and actually renders any state court remedies ineffective).
     DUI suspect had no right to be videotaped; failure of officer to turn on volume on videotape machine did not violate due process. State of Montana v. Heth, 750 P.2d 103 (Mont 1988).
     Destruction of evidence by police officials and alleged failure to conduct adequate investigation of man's death could be the basis for a federal civil rights suit by his children for interference with their ability to bring a wrongful death lawsuit over their father's death Stump v. Gates, 777 F.Supp. 808 (D.Colo 1991)