The case of King v. Harwood, a malicious prosecution case decided recently by the Sixth Circuit, begins with a body found floating in the Ohio River. An autopsy revealed the cause of death as two non-exiting .22 caliber gunshots to the head; the body's legs were bound by a guitar-amplifier cord.
The murder investigation turned attention to Susan King, because she had had an "on/off again relationship" with the deceased, Kyle Breeden, and because, during the 10 day time when Breeden was missing, King had shared with others her premonitions of "Breeden being found in water." Two attempts to obtain a search warrant for King's home were unsuccessful; she also denied consent during an interview of "several hours" conducted by investigators. Nevertheless, a Kentucky state police sergeant was escorted into the residence by King's boyfriend, and he discussed with her bullet holes in the house's kitchen floor stemming she said from an incident some years before when she had been compelled to resist aggressively a paramour's advances. The sergeant's investigative notes concluded that he "did not believe that King was responsible for Breeden's death."
The case then went cold for nearly seven years, from November 1999 to May 2006.
In May 2006, KSP detective Todd Harwood took up the investigation. Harwood interviewed King on May 31 and June 12, 2006, although neither interview was documented.
On June 12, 2006, Harwood applied for a search warrant, although, as the Sixth Circuit pointed out, "he had only the same information that [KSP investigators] had when they had previously sought and failed to obtain a search warrant." Nevertheless, Harwood was successful and the warrant was issued.
Despite the warrant's issuance and without ruling that it should not have been issued, the Sixth Circuit takes pains to criticize omissions in Harwood's affidavit:
The affidavit omits the fact that the bullet wounds in Breeden's head were non-exiting(thus leaving open the possibility that the bullet holes in King's floor were made by the bullets that killed Breeden, which was not possible). The affidavit also omits the fact that King had one leg (and, though she now has a prosthetic leg, she did not at the time) and weighed 100 pounds, while Breeden weighed 187 pounds, which would make it less probable than otherwise that King killed Breeden in her kitchen, tied up his body, dragged him to her car, drove 40 miles north, and dumped his body into the Kentucky River.
The search of King's home recovered a .22 caliber bullet from her kitchen floor. However,, a forensic examination determined that the bullet from King's floor did not match the bullets that killed Breeden.. Subsequently, a second search warrant was obtained based on Harwood's same affidavit and the search recovered 130 bullets from a tree and King's backyard. None of these matched the bullets found in Breeden's skull.
Nevertheless, Harwood apparently identified King as Breeden's murderer, testified before the grand jury that indicted King for murder. Subsequently, King was also indicted for tampering with physical evidence, a charge arising from the allegation that she cleaned up the murder scene, which was her kitchen. The Sixth Circuit noted that "a KSP lab report indicates that no cleaning solvents were identified on King's floor."
King entered an Alford plea pursuant to a plea agreement that included a 10 year sentence for manslaughter and a concurrent five-year sentence for tampering. She was sentenced to 10 years of imprisonment on October 23, 2008, about two weeks short of 10 years from the day Breeden's body was found in the river. The Sixth Circuit noted that "Harwood received a KSP 'Commissioner's Commendation for his outstanding achievement in solving Breeden's murder."
In May 2012, "a serial murderer named Richard Jarrell confessed to a Louisville Metro Police (LMPD) detective that he had in fact killed Breeden." Jarrell was seeking leniency for a brother facing federal drug charges and apparently was able to relate specific details about the murder that had not been publicly disclosed. A second interview with Jarrell was recorded. Harwood himself later interviewed Jarrell, and, according to King, "intimidated Jarrell into recanting his prior confession." The Sixth Circuit noted that "Harwood's tape recorder went missing."
The LMPD detective "apparently forwarded a copy of Jarrell's confession to the Kentucky Innocence Project (which had been investigating King's case since 2009)." King filed a motion for a new trial based on Jarrell's confession, which the Spencer Circuit Court denied based on her guilty plea. She appealed and on July 18, 2014, the Kentucky Court of Appeals ruled in her favor based on King's evidence of "actual innocence," vacated her Alford plea and remanded the case for trial on the indicted offenses. The charges against King were dismissed by the Spencer Circuit Court on October 9, 2014, and the criminal prosecution terminated.
On October 1, 2015, less than a year later, King filed suit pleading claims of malicious prosecution pursuant to 42 U.S.C. 1983 and various tort claims. On June 1, 2016, prior to the taking of any discovery, U.S. District Judge Gregory Stivers granted summary judgment to all of the defendants on all of King's claims. That ruling was reversed by the Sixth Circuit. One aspect of the Sixth Circuit's ruling has been discussed in a previous post, An Alford Plea Does Not Bar a Later Malicious Prosecution Claim, Sixth Circuit Rules, and others will be discussed in subsequent posts.
It is worth stating again and so it goes.
Robert L. Abell
www.RobertAbellLaw.com
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