AELE LAW LIBRARY OF CASE SUMMARIES:
Civil Liability of
Law Enforcement Agencies & Personnel
Back to list of subjects Back to Legal Publications Menu
Failure to Disclose Evidence, & Loss of Evidence/Preservation of Evidence
Monthly Law Journal Article: Civil Liability for Police
Failure to Disclose Exculpatory Evidence, 2009 (9) AELE Mo. L. J. 101.
Three women who had been sexually assaulted claimed that the city of Memphis,
Tennessee had wrongfully failed to submit their sexual assault kits (SAKs) of
physical evidence of their assaults for testing. They alleged that the city
possessed more than 15,000 SAKs that had not been submitted for testing,
resulting in spoliation of evidence. They asked the trial court to certify a
class action lawsuit on behalf of all women whose kits the city failed to test.
The trial court dismissed all claims except an equal protection claim of sex
discrimination. After two years of discovery, costing the city over $1 million
in expenses, it was revealed that two of the three plaintiffs’ SAKs were
actually tested shortly after their assaults. The
third plaintiff’s SAK was tested 10 years after her assault. The trial court
granted summary judgment to the city as to two plaintiffs and struck the class
allegations, ruling that no amount of additional discovery would allow the
plaintiffs to sufficiently demonstrate commonality. A federal appeals court reversed,
ruling that the city unreasonably delayed producing discovery material and
additional discovery might have changed the outcome. Expenditures of time and
money alone did not justify terminating discovery when a plaintiff has been
diligent and might still discover information that could establish a genuine
issue of material fact. Doe v. City of Memphis, #18-5565, 2019 U.S. App. Lexis 22920 (6th Cir.).
An eight-year-old boy was killed when shots were fired into his grandmother’s residence. Three men were convicted of the killing and each sentenced to 50 years in prison. After they spent over ten years incarcerated, a new trial was ordered based on the delayed disclosure of exculpatory evidence. Recorded jail phone calls of the prosecution’s main witness contained statements that contradicted his testimony at trial. At the retrial, all three men were acquitted. Their lawsuit against police officers and the city claimed that the defendants not only withheld the recorded calls and other exculpatory evidence, but additionally fabricated evidence used to prosecute them. The recordings were only turned over to the prosecution on the eve of trial and their content was allegedly falsely described. A federal appeals court overturned summary judgment for the defendants. The plaintiffs had established sufficient evidence to go to trial against particular defendants on aspects of their alleged due process violations. The withheld evidence was material, as there was absolutely no physical or forensic evidence linking them to the murder. The appeals court did, however, reject some claims concerning allegedly fabricated evidence. Anderson v. City of Rockford, #18-2211, 2019 U.S. App. Lexis 22216, 2019 WL 3334655 (7th Cir.).
A man claimed that New York City and other defendants violated his constitutional rights in connection with his criminal trial for murder, causing his wrongful conviction, and resulting in damages. While the trial court granted the defendants’ motion for summary judgment, a federal appeals court ruled that the raised material issues of fact as to certain, but not all, of his claims that police detectives fabricated and withheld material evidence. The court also held that the city may be held liable for the consequences of the alleged policies of the Queens County District Attorney's (QCDA) office under the Monell v. Department of Social Services of City of New York, #75-1914, 436 U.S.658 (1978) doctrine, and that the plaintiff had raised material issues of fact as to the underlying constitutional violations, specifically the non-disclosure of substantial financial relocation benefits received by one of the state’s principal witnesses against him and the impropriety of his prosecutor’s prejudicial remarks during the summation at his trial, including the statement that “I know who committed the murder,” falsely implying personal knowledge or that there was other evidence, not given to the jury, supporting the defendant’s guilt. Further proceedings were therefore required. Bellamy v. City of New York, #17-1859, 2019 U.S. App. Lexis 2914 (2nd Cir.).
A man was convicted of the murder of a woman found beside a road with her throat slashed. Prosecutors never informed him that a knife found near the woman’s body might have implicated someone else in the crime. A state appeals court later vacated the conviction based on Brady violations in failing to reveal exculpatory evidence. The man was then retried and acquitted. He sued a county prosecutor, a detective, and the county for damages for the Brady violation less than a year after his acquittal. The trial court dismissed the lawsuit on a statute of limitations basis, finding that the claim accrued more than a year ago when the conviction was overturned. A federal appeals court reinstated the claim, holding that the claim accrued when he was acquitted on retrial, but not when the initial conviction was overturned. Jordan v. Blount County, #17-5988, 2018 U.S. App. Lexis 6405, 2018 Fed. App. 51P (6th Cir.).
Fire struck a woman’s home, killing her three-year-old son. An ATF forensic chemist wrote a draft report stating that no accelerants were present where fire investigators thought the fire had begun. The woman was prosecuted for starting the fire and then alleged that the investigators communicated their disappointment to the ATF chemist, who agreed to fabricate findings. The official report confirmed the presence of accelerants in the areas identified by the investigators and said that the heavy petroleum distillates were highly suspicious. Only the final official version of the report was given to state prosecutors, with the existence of the draft report not revealed. Convicted of felony murder based on that report, the woman was sentenced to 60 years’ imprisonment. After the draft report was revealed, a state appeals court reversed the conviction, based on the “Brady” violation of failing to disclose exculpatory evidence. Exonerated, the woman sued under the Federal Torts Claims Act (FTCA), claiming malicious prosecution and intentional infliction of emotional distress, and under 42 U.S.C. 1983. The trial court concluded that the intentional-tort exception to the FTCA’s general waiver of immunity applied, that the exception to that exception for law-enforcement officers did not apply, and granted the federal government summary judgment. A federal appeals court subsequently concluded that the record was not developed fully enough to support that result, that summary judgment on the issue of immunity was premature, and ordered further proceedings. Bunch v. United States, #16-3775, 2018 U.S. Lexis 2283 (7th Cir.).
A man pled guilty on charges that he assaulted an officer in the course of being arrested for public intoxication. He received a suspended sentence. Years later, his conviction was set aside on the basis of “actual innocence” after a videotape of the incident surfaced. He sued the city for a Brady violation for failure to provide him with the videotape earlier. A jury awarded him $2 million in damages and $300,000 in attorneys’ fees were also agreed to by the parties. On the city’s appeal, the federal appeals court overturned these awards, finding that the plaintiff could not properly pursue a Brady claim. Since he pled guilty prior to trial, he was not entitled to disclosure of the exculpatory videotape. Alvarez v. City of Brownsville, #16-40772, 2017 U.S. App. Lexis 11338 (5th Cir.).
Two men were convicted at separate trials of the murders of two young children. Later, both convictions were thrown out when a third man admitted to killing both children. The men filed a lawsuit against two forensic experts who testified for the prosecution in their trials, claiming that they provided investigators with, and then testified to, “baseless” bite mark evidence that they knew was baseless or at least acted with reckless disregard of that fact. A federal appeals court upheld summary judgment for the defendants, holding that they were entitled to qualified immunity because they were engaged in the criminal investigative functions of the state protected at common law, and the plaintiffs failed to raise a genuine issue of fact as to whether the defendants violated their right to due process by intentionally creating false or misleading scientific evidence, at most showing negligence, which was insufficient for a constitutional claim. Brewer v. Hayne, #16-60116, 2017 U.S. App. Lexis 11464 (5th Cir.).
A man claimed that he was wrongfully convicted of raping three children after a police detective deliberately fabricated evidence by mischaracterizing child victim witnesses’ statements in her investigative reports. A jury found for the plaintiff, awarding $9 million in damages, but the trial judge granted judgment as a matter of law to the defendants (the detective and her supervisor) based on the ground that there was no evidence that the detective knew or should have known of the plaintiff’s innocence. Reversing, a federal appeals court ruled that because the plaintiff introduced direct evidence of deliberate fabrication, he did not have to prove that the detective knew or should have known that he was innocent. The jury’s verdict was ordered reinstated. Spencer v. Krause, #14-35689, 2017 U.S. App. Lexis 8712 (9th Cir.).
A man was in a crowd outside a nightclub
when shots were fired killing another person. Investigators gathered
security videos and interviewed witnesses. They spoke to the man’s mother, who
informed them that he had cognitive impairments. When he went voluntarily to be
interviewed, he made statements about whom he had been with and where he was
standing that were contradicted by the videos, and he was arrested for
obstruction of justice. During further interrogation, he denied involvement in
the shooting over 140 times, but eventually confessed, following a polygraph.
After the polygraph, he stated that he wanted a lawyer, but detectives
convinced him to waive his rights and employed various interrogation
techniques, falsely stating that he had been identified as the shooter and had
failed his polygraph test.The court in the criminal case suppressed the
confession, stating that the man was “functionally illiterate” and had
previously been found incompetent to stand trial for a different crime. A
federal appeals court rejected claims of unlawful interrogation. The plaintiff
failed to demonstrate that his right to be free from the interrogation tactics
was clearly established. The officers had probable cause for his arrest for
obstruction, defeating his false arrest claim. Brady claims relating to the
officers’ failure to disclose certain statements known to them during the
interrogation were rejected, as Brady does not require the disclosure of
favorable evidence before trial. Gill v. City of Milwaukee, #16-2846, 850
F.3d 335 (7th Cir. 2017).
Six years after a woman was
raped and strangled to death, police arrested a man who was convicted of the
crime. He spent six years in prison before DNA evidence showed that someone
else, a serial killer linked to nine similar homicides, was responsible. The
plaintiff claimed that police detectives made up a fake confession and got
jailhouse informants to falsely incriminate him. He further argued that they
violated Brady
v. Maryland, #490, 373 U.S. 83 (1963), requirements
by failing to disclose impeachment evidence about the informants false
statements. A jury found two detectives liable for violating the plaintiff’s
due process rights by fabricating the confession, and also found the city
liable, awarding $1 million in damages. A federal appeals court upheld this
result, and held that the trial court improperly granted summary judgment to
the defendants on the Brady violation claims. The fact that the plaintiff knew
that the informants’ statements were false did not relieve the detectives of
their duty to disclose possible impeachment evidence. Avery
v. City of Milwaukee, #15-3175, 847 F.3d 433 (7th
Cir. 2017).
An undercover police
officer was found liable for $1 in nominal damages and $20,000 in punitive
damages for violating the plaintiff's right to a fair trial on criminal charges
by fabricating evidence. A federal appeals court upheld the rejection of the
officer's motion for judgment as a matter of law. If, as the plaintiff argued,
the officer had furnished false information to the prosecutor concerning his
personal observations of the plaintiff, leading to the plaintiff's arrest, that
could be the basis for a federal civil rights claim. Garnett v. Undercover
Officer C0039, #15-1489, 2016 U.S. App. Lexis 17696 (2nd Cir.).
A man's wife and two
daughters died in a house fire and he was convicted of arson and felony murder
in connection with the fire. The convictions were later overturned after
advancements in fire science research and investigation methods impugned some
of the evidence on which they were based. He sued, claiming that various
defendants violated his due process rights by intentionally misrepresenting
certain evidence, failing to disclose exculpatory evidence, and conspiring to
deprive him of his rights. A federal appeals court did not set aside a trial
court determination that claims could go forward against a forensic lab
technician who testified at the trial. The plaintiff might be able to show that
he acted knowingly or recklessly. While the plaintiff may have been “wronged,”
however, he did not sufficiently allege facts to support his claims that other
defendants acted with such culpable states of mind as to warrant relief under
42 U.S.C. 1983. Due process guarantees a right to a fair trial, not perfection.
Using the methods of the 1980s during the 1980s did not violate the
Constitution, so the other defendants were entitled to qualified immunity.
Gavitt v. Born, #15-2434, 2016 U.S. App. Lexis 16181, 2016 Fed. App. 0216P (6th
Cir.).
After a man's conviction for the murder of his
mother was vacated, the state declined to retry him. He then sued, contending
that officers and the county violated his constitutional rights by not
disclosing certain materially favorable evidence in connection with his trial,
fabricating evidence, and conspiring to misuse evidence to convict him. The
focus of the claim was failure to reveal prior to trial that an alleged
altercation involving the plaintiff was fabricated. The defendant sheriff,
however, did not learn about the reported altercation until during the trial
and only later learned that the report was unsubstantiated. Further, his
failure to testify at the trial about his limited knowledge of the report
failed to support a Brady claim and was protected by absolute witness immunity.
In fact, he was never asked whether the report was or was not substantiated. No
reasonable jury could infer the existence of a conspiracy to deprive the plaintiff
of a fair trial, and there was no intent or bad faith on the part of any of the
defendants. Helmig v. Fowler, #14-3422, 2016 U.S. App. Lexis 12684 (8th Cir.).
A man served his full ten year sentence for
rape and residential burglary, after which his conviction was vacated because
of newly available DNA evidence. He sued a police detective involved in his
case, accusing him of fabrication of evidence. Overturning a trial court's
dismissal of the lawsuit, a federal appeals court found that the claim did not
accrue until the plaintiff was acquitted of all charges, so that the lawsuit
was filed in a timely fashion within the applicable three year statute of
limitations and was not time barred. The appeals court did not address the
detective's qualified immunity defense, as the court below had not reached the
issue. Bradford v. Scherschligt, #14-35651, 803 F.3d 382 (9th Cir. 2015).
A former prisoner convicted of murder had
his sentence modified to time served after finding documents that appeared to
show that the police and prosecutors withheld exculpatory evidence from his
defense, in violation of their obligations under Brady v. Maryland. Despite
this, a federal appeals court ruled, his claim for damages for the failure to
disclose evidence were barred by the principles in Heck v. Humphrey, since his
conviction had not been overturned on appeal, expunged by executive order, or
declared invalid by a state tribunal, nor had it been called into question by a
federal court's issuance of a writ of habeas corpus. An award of damages on his
claims would imply the invalidity of his conviction, so no such claim could be
pursued. Griffin v. Baltimore Police Dept., #14-1494, 2015 U.S. App. Lexis
18723 (4th Cir.).
A man asserted that he had been assaulted by several
people, one of whom was an off-duty police officer. A police detective assigned
to investigate the incident was alleged to have done almost nothing on the
investigation for six weeks, interviewing no witnesses other than the
plaintiff, failing to inspect the crime scene, and following no leads, prior to
closing the case. The plaintiff sued the detective for violating his right of
access to the courts, claiming that the failure to properly investigate the
crime resulted in the spoilation of evidence in his lawsuit against his
assailants. He also assserted a claim for municipal liability against the city,
claiming that it perpetuated a "code of silence" that had the effect
of shielding officers from investigation and promoting misconduct. Summary judgment
for the defendants was upheld. A federal appeals court found no denial of
access to the courts because the defendants did not conceal any facts from the
plaintiff that interfered with him suing his assailants. The plaintiff himself
knew all the relevant facts of his case, so the detective was entitled to
qualified immunity. The appeals court found that, on the municipal liability
claim, there was insufficient evidence presented of any widespread practices by
the police department. The appeals court further found that the trial court
acted within its discretion in awarding costs to the city. Rossi v. City of
Chicago, #13-3795, 2015 U.S. App. Lexis 10504 (7th Cir.).
A man's conviction for rape ad murder was
reversed after 29 years of incarceration. A state judge subsequently dismissed
the charges, finding that the prosecution had destroyed key exculpatory
evidence. In a lawsuit against a prosecutor and state crime lab technicians,
the man alleged shocking prosecutorial misconduct, including: destroying
potentially exculpatory evidence from the crime scene; arranging for highly
suggestive hypnosis of an eyewitness; contriving suggestive identification
show-ups; concealing a later confession from a third party that was relayed by
a person with no apparent motive to fabricate the report; and enlisting lab
technicians to perform an inconclusive DNA test that consumed the last of a
sample that could have proven the plaintiff's innocence and identified the true
killer. A federal appeals court upheld the denial of qualified immunity to the
defendants. At the time of the original investigation, it was clearly
established that bad faith destruction of exculpatory evidence, which was
alleged, would violate a suspect's due process rights. A reasonable prosecutor
could not have believed that evidence could legally be destroyed or lost to
avoid disclosing it. Armstrong v. Daily, #13-3482, 2015 U.S. App. Lexis 7761
(7th Cir.).
After 13 years, a man's conviction for the murder
of his ex-girlfriend was overturned, based on a finding that his due process
rights were violated by a failure to disclose material exculpatory information
about a viable alternative suspect. He sued the officers and prosecutors
involved in the case, arguing that they deliberately conspired to suppress the
exculpatory evidence. After several defendants were dismissed, an appeals court
upheld summary judgment for the remaining defendants, three officers and the
town. The plaintiff failed to submit sufficient evidence from which a
reasonable jury could find a conspiracy to exist to conceal the exculpatory
evidence. It was also not clearly established in Illinois in 1995 that a
polygraph exam taken by an alternative suspect, which would have been
inadmissible in court, qualified as Brady material. Beaman v. Warner, #14-1195,
2015 U.S. App. Lexis 527 (7th Cir.).
A detainee, who is now deceased, was held pending
trial for approximately two years on charges relating to a series of
"demand-note" robberies of small retail businesses. A lawsuit contended
that two detectives investigating the crimes failed to disclose that someone
else had confessed to the robberies or that the robbery spree continued against
the detainee was in custody. The charges against him were ultimately dismissed
when his defense lawyer did obtain the information. A federal appeals court
ruled that the decedent was entitled to constitutional protection against
prolonged detention resulting from police withholding information strongly
indicative of his innocence from prosecutors. A jury determination that the
detectives withheld the information with deliberate indifference or reckless
disregard for the decedent's rights met the standard for a violation of due
process. The jury verdict of $106,000 on compensatory damages was upheld, along
with an award of attorney's fees and cost. Tatum v. Moody, #10-55970, 2014 U.S.
App. Lexis17942 (9th Cir.).
A man who spent 20 years on death row for a
murder conviction was granted release because the prosecutor had violated his
obligations to disclose exculpatory evidence. During an attempted
reprosecution, the failure to disclose exculpatory evidence continued, and the
prosecutor failed to alert either the defense or the court that the key
prosecution witness had died. The court barred the state from further
prosecution efforts based on extraordinary circumstances. The state conviction
was never vacated, but the man's release was granted by habeas corpus relief. A
federal appeals court held that the prosecutors had absolute prosecutorial immunity
from civil liability for failing to disclose exculpatory evidence. It further
ruled that the complaint's allegations were insufficient to establish that
there was an official county policy of violating the constitutional rights of
criminal defendants. A police detective had no obligation to make disclosures
to the defense, and there was no claim that he withheld any information from
the prosecution. D'Ambrosio v. Marino, #13-3118, 2014 U.S. App. Lexis 5588,
2014 Fed App. 55P (6th Cir.).
The plaintiff, who had pled guilty to criminal
charges, filed a federal civil rights lawsuit claiming that he had improperly
been denied access to exculpatory evidence that had a reasonable probability of
affecting the outcome of his trial. A federal appeals court, ruling en banc,
vacated summary judgment for the defendants. The court found that the guilty
plea did not bar his claim concerning the withholding of evidence since his
claim did not necessarily imply that his guilty plea was invalid. Additionally,
he had successfully brought a state collateral attack on his conviction for
second degree murder based on the withholding of evidence and then pled guilty
to a lesser charge of attempted robbery, resulting in his release for time
served. Poventud v. City of New York, #12-1011, 2014 U.S. App. Lexis 864 (en
banc 2nd Cir.). The en banc court declined to reach the issue, decided by a
appeals court panel, as to whether the claim was not barred because of the fact
that the plaintiff could no longer bring a habeas corpus action since he was no
longer in custody. Poventud v. City of New York, #12-1011, 715 F.3d 57 (2nd
Cir. 2013).
Two men convicted of murder had their convictions
vacated and all charges against them dismissed after the key witness against
them recanted his testimony. The trial court in a lawsuit against a number of
defendants failed to properly instruct the jury about the level of culpability
sufficient for a showing of deliberate fabrication of evidence under the
Fourteenth Amendment. As the error was not harmless, the appeals court reversed
a jury verdict for the defendants and ordered a new trial. Given the evidence
presented, a reasonable jury could have concluded that the defendants used
investigative techniques that were "so coercive and abusive" that
they should have known that they would produce false information. At the
retrial, the trial court should also determine whether an instruction was
appropriate for failure to disclose exculpatory evidence, and explain its
ruling. Gantt v. City of Los Angeles, #11-55000, (9th Cir.).
An arrestee convicted of second degree murder was
allowed to then plead guilty to a lesser charge and receive a one year
sentence, resulting in his release with credit for time already served. He sued
the officials who had conducted the original investigation and prosecution,
claiming that they had failed to disclose exculpatory evidence. The trial court
ruled that this claim was barred since the plaintiff's conviction and sentence
had not been overturned or otherwise set aside. A federal appeals court, noting
that the plaintiff could no longer bring a habeas corpus action since he was no
longer in custody, found that, under these circumstances his federal civil
rights claim was not barred. Poventud v. City of New York, #12-1011, 2013 U.S.
App. Lexis 7851 (2nd Cir.).
A man who served 14 years of a longer sentence on
a murder conviction was granted a new trial and released from prison on the
basis of his claim that the service officers, including a police detective involved
in his prosecution, had withheld exculpatory evidence. He then sued the former
detective, as well as a police commissioner, two officers and the city for
violating his due process rights by withholding the evidence. While a first
trial of the case resulted in a deadlocked jury, on retrial, a jury awarded $14
million to the plaintiff based on a finding that the detective had withheld the
evidence. A federal appeals court has ordered yet another new trial, based on
errors in the trial judge's instructions to the jury on the issue of causation.
The jury should have been instructed that liability could only be found it
there was a showing by a preponderance of evidence, that, but for the
withholding of the exculpatory evidence, the conviction would not have
occurred. It did reject, however, the detective's arguments that the evidence
withheld was not material or that he was entitled to qualified immunity.
Drumgold v. Callahan, #11-1304, 2013 U.S. App. Lexis 2301 (1st Cir.).
A federal jury in Chicago returned a verdict in
favor of a plaintiff and against the city on a claim that the city had a
persistent widespread custom or practice of protecting officers from citizen
complaints. The suit had been brought by a female bartender who had been
assaulted by an off-duty officer. A persistent widespread custom or practice
had been alleged to constitute a de facto policy of concealing or suppressing
investigations into police officer misconduct, along with a “code of silence”
within the police department. The jury also found that the officer conspired
with others under color of law in violation of the plaintiff’s First Amendment
rights to free speech. It awarded $850,000 in damages.Obrycka v. City of
Chicago, #07 C 2372, U.S. Dist. Court (N.D. Ill. November 13, 2012). The court
subsequently denied a motion to vacate the judgment concerning the "code
of silence." The court found that the "judgment’s precedential value
weighs against granting the parties’ motion to vacate the judgment."
Obrycka v. City of Chicago, #07 C 2372, 2012 U.S. Dist. Lexis 179990 (NJ.D.
Ill.). The city stated that would pay the plaintiff compensatory damages in the
amount of $850,000, plus costs and reasonable attorney’s fees in an amount yet
to be determined. The city also stated that it will forego its right to appeal
pursuant to the parties’ postjudgment settlement. In an earlier decision, the
trial judge found that there was evidence that the defendant officer tried to
intimidate and threaten the victim from disclosing the videotape of the
incident because he knew, that without the tape, there would be no case against
him. Obrycka v. City of Chicago, #07 C 2372, 2012 U.S. Dist. Lexis 22818 (N.D.
Ill.).
A man exonerated of his rape conviction by DNA
evidence after serving 23 years in prison claimed that a police officer
involved in the investigation was liable because he allegedly failed to
disclose an incident which may have suggested that another man, who visited the
victim's apartment while the officer was there, committed the crime. But no
reasonable jury could find that the officer knew, at the time, the exculpatory
value of the visit without simply speculating. At worst, the officer acted
negligently in failing to identify the actual rapist as a suspect, and this was
insufficient to show a reckless investigation. The plaintiff also failed to
show that another defendant officer conducted an improperly suggestive lineup.
The victim's identification of the plaintiff as her rapist, although mistaken,
had significant indicia of reliability to be admitted as evidence at trial.
Briscoe v. County of St. Louis, #11–3034, 690 F.3d 1004
(8th Cir. 2012).
Two men imprisoned for 20 years for the murder of
a couple in their home were released and exonerated on the basis of multiple
allegations that police officers and a prosecutor together conspired to frame
them. A federal appeals court ruled that police officers were not entitled to
summary judgment on claims that they had both manufactured false evidence and
failed to reveal exculpatory evidence. There were disputed factual issues
concerning their conduct and the prosecutor's, so the officers were properly
denied qualified immunity, and the prosecutor absolute or qualified immunity.
Defendant state officers could also potentially be held liable for allegedly
trying to quash an investigation of the case. Whitlock v. Brueggemann,
#11-1059, 2012 U.S. App. Lexis 10825 (7th Cir.).
A motorist arrested for DUI sought discovery of a
videotape made by police of his arrest, for use in his defense. Despite
receiving notice of this request, the police destroyed the video a number of
hours before a court hearing on his discovery requests, doing so under a
department policy mandating the destruction of such videos 30 days after an
arrest. The trial court properly imposed sanctions on the prosecution for this,
barring the state from introducing testimony relating to what was shown on the
video. This did not bar the prosecution, and the officer could still be
questioned as to what his observations of the defendant at the scene had been,
other than testifying about what the video showed. People v. Kladis, #110920,
2011 IL 110920, 2011 Ill. Lexis 2236, 2011 IL 110920.
A California Highway Patrol officer, as well as
the state, was immune from liability on a claim that he negligently lost or
destroyed the information needed to identify an individual involved in an
accident which injured the plaintiff, interfering with the ability to sue.
Governmental immunity is provided by statute when the information is lost in
the course of an official investigation. A $99,224.90 award to the plaintiff was therefore reversed
on appeal, Strong v. State of California, #B225885, 2011 Cal. App. Lexis 1580,
201 Cal. App. 4th 1439 (2nd Dist.).
A man convicted of murder was released after more
than 30 years in prison when he obtained evidence through a freedom of
information request showing that witnesses in his trial had initially given
different accounts to police detectives than those they testified to in court.
He sued the police for alleged failure to disclose potentially exculpatory
evidence to his defense. The officers were entitled to qualified immunity from
liability, because in 1972 it was not clearly established that police officers,
in addition to prosecutors, could be liable for failure to disclose potentially
exculpatory evidence. His claim against them for alleged "deliberate
deception" in intentionally permitting false testimony and concealing
evidence, however, could proceed. "Deliberate concealment of material
evidence by the police designed to grease the skids for false testimony and
encourage wrongful conviction, unarguably implicates a defendant's due process
rights." There was also a possible claim against the city for an
unconstitutional policy and failure to train on the obligation to disclose
exculpatory evidence. Haley v. City of Boston, #10-2064, 2011 U.S. App. Lexis
19223 (1st Cir.).
In an appeal of a criminal conviction for child
sexual abuse, the New Jersey Supreme Court has ruled that officers should not
destroy notes they take while interviewing witnesses, victims, and suspects,
and that such notes should be made available to defense attorneys so that they
can use them to challenge police reports and testimony. "We need not take
much time to state, once more, that law enforcement officers may not destroy
contemporaneous notes of interviews and observations at the scene of a crime
after producing their final reports," the court stated.
"Logically, because an officer's notes may
be of aid to the defense, the time has come to join other states that require
the imposition of 'an appropriate sanction' whenever an officer's written notes
are not preserved." The court held, however, that the trial court did not
err in failing to instruct the jury in the immediate case that it could draw a
negative inference based on the police losing or destroying their notes after
interviews, since the accused never asked for such an instruction to the jury
and did not raise the issue before his motion for a new trial. State v. W.B.,
#A-80, 2011 N.J. Lexis 568.
The U.S. Supreme Court, in a 5-4 ruling,
overturned a $14 million jury award to an innocent man who spent 14 years on
death row before being exonerated. The plaintiff had sued the prosecutors'
officer, claiming that its failure to adequately train staff members concerning
the obligation not to hide a blood test that would have established his
innocence caused his conviction. While the failure to train on the obligation
to disclose potentially exculpatory evidence can be the basis for government
liability for violation of civil rights, the plaintiff must show that this
reflected a deliberate indifference to the rights of the accused, which
normally requires a showing of a pattern of similar constitutional violations
by untrained employees. Connick v. Thompson, #09-571, 2011 U.S. Lexis 2594.
A man arrested and prosecuted for arson sued a
police sergeant for allegedly failing to disclose purportedly materially
exculpatory evidence, including a false identification by a witness stating
that the accused was "gloating" at the arson scene in the months
following the crime. The court ruled that even if the officer falsified and
omitted the evidence in question when applying for the warrant, the corrected
report and warrant application absent this evidence would still have had facts
sufficient to provide probable cause for the arrest. Smith v. Almada,
#09-55334, 2011 U.S. App. Lexis 5692 (9th Cir.).
The operator of a day care facility was
prosecuted for felony child abuse after a baby there died of a brain hemorrhage
and a hospital doctor stated that the child died from being shaken in day care.
The doctor failed to reveal before taking the stand in court that there was a
pathology report showing that the shaking occurred before the baby arrived at
the day care facility. The exonerated day care operator filed a federal civil
rights lawsuit against the state director of child services for failure to
enforce policies to ensure that doctors disclose exculpatory evidence to
prosecutors. A federal appeals court, however, ruled that it was not clearly
established that a child services agency had a constitutional duty in these
circumstances to discover or train others to disclose exculpatory evidence in
child abuse cases. Tiscareno v. Anderson, #09-4238, 2011 U.S. App. Lexis 4977
(10th Cir.).
A man who founded a company that sold memberships
in an investment club to African Americans was investigated by the F.B.I. and
S.E.C. and convicted of mail fraud and money laundering. His attempts to appeal
the conviction or otherwise have it set aside were unsuccessful, but he sued
several attorneys and an accountant employed by the S.E.C. who allegedly
created a spreadsheet for the criminal prosecution tracking his companies'
financial transactions, but refused to disclose it to him or the prosecution in
violation of Brady v. Maryland, #490, 373 U.S. 83 (1963).
Rejecting this claim, a federal appeals court
noted that a "meritorious Brady claim, by definition, implies the
invalidity of the attendant criminal conviction." The plaintiff failed to
show how the disclosure of the spreadsheet would have led to a different result
in his criminal prosecution. Additionally, the information supposedly withheld
was "known by and available" to the plaintiff, and the government has
no duty to furnish a criminal defendant with information he already has or can
obtain himself with any reasonable diligence. Dukes v. Pappas, #10-3380, 2010
U.S. App. Lexis 26371 (Unpub. 3rd Cir.).
A man was at the scene where a group of people
beat a victim to death, and he and three other people were arrested for the
murder. He was acquitted at trial, and subsequently claimed that investigating
officers had withheld evidence of an exculpatory statement made by the
eyewitness who purportedly identified him during a lineup. The plaintiff's
claim for violation of the duty to disclose exculpatory evidence was rejected,
a federal appeals court ruled, because even if the witness had not told the
police that he saw the plaintiff participate in the beating, there would have
still been enough evidence for the prosecutor to go after the plaintiff under
an "accountability" theory of murder under Illinois state law. Mosley
v. City of Chicago, #09-3598, 2010 U.S. App. Lexis 15616 (7th Cir.).
A man was arrested, prosecuted, and convicted of
having raped and murdered his mother-in-law, and raped and assaulted his
six-year old niece. He was sentenced to life without patrol and exonerated when
DNA evidence showed that his neighbor had actually committed the crime.
Officers were not entitled to qualified immunity on the plaintiff's claim that
they failed to disclose to his defense exculpatory evidence contained in a
memorandum written by an officer who arrested the neighbor, while he was
intoxicated, on unrelated charges, only to have the neighbor ask why he wasn't
being charged with the mother-in-law's murder. Elkins v. Summit County,
#09-3680, 2010 U.S. App. Lexis 16471 (6th Cir.).
A man was prosecuted by the U.S. government for
conspiring to provide material support or resources to terrorists and related
charges. He sued, claiming that the prosecutor had maliciously and
intentionally withheld and failed to disclose exculpatory evidence. Finding
that these claims only related to the nondisclosure in connection with the
prosecution, and not with the underlying investigation, a federal appeals court
held that the prosecutor was entitled to absolute immunity from liability.
Koubriti v. Convertino, #09-1016, 2010 U.S. App. Lexis 2283 (6th Cir.).
The U.S. Supreme Court has granted review in a
case in which a federal appeals court upheld an award of $14 million in damages
and approximately $1 million in attorneys' fees to a former death-row inmate
whose murder and robbery convictions were overturned. Prosecutors in the case
were found to have improperly withheld blood evidence that was exculpatory
during the plaintiff's trial. The appeals court found that the plaintiff showed
that training about the obligation to disclose exculpatory evidence was
obviously necessary, and that it was predictable that failing to provide such
training could result in violating the constitutional rights of defendants in
criminal proceedings. The plaintiff was not required to show that a pattern of
similar violations took place. The fact that an assistant district attorney
violated the district attorney's policy in intentionally hiding the blood
evidence did not establish that the district attorney was not deliberately
indifferent in failing to provide the required training. Thompson v. Connick,
#07-30443, 578 F.3d 293 (5th Cir.2009), cert. granted sub nom., Connick v.
Thompson, #09-571, 2010 U.S. Lexis 2612.
A man was convicted of a murder and jailed for
ten years. Ultimately, he was exonerated based on post-trial DNA testing
carried out by the district attorneys' office. He sued, contending that his
rights were violated by a 72-day delay in informing him or his lawyer of the
exculpatory results. A federal appeals court ruled that prosecutors were
entitled to absolute immunity from liability because their actions were
integrally connected to their role as advocates for the state in
post-conviction proceedings. An order denying the defendant county's motion to
dismiss was not immediately appealable. Warney v. Monroe County, #08-0947, 2009
U.S. App. Lexis 24914 (2nd Cir.).
A man served 34 years in prison on a conviction
for murdering his sister-in-law's boyfriend. At his trial, his wife and
sister-in-law testified that they saw him outside the apartment of the victim
on the day before the murder. He was never exonerated of the murder, but was
released from custody by a state court after the existence of an exculpatory
police report was revealed. The report indicated that the wife and
sister-in-law had not reported his presence outside the victim's residence in
their statements to the police. The plaintiff claimed that officers had
violated his rights to due process and a fair trial in failing to disclose this
exculpatory report. A federal trial court held that the officers were entitled
to qualified immunity because his right to the disclosure of the prior
inconsistent statements was not clearly established at the time of his trial.
Haley v. City of Boston, #09-10197, 2009 U.S. Dist. Lexis 121565 (D. Mass.).
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)