The Supreme Court ruled in Rehberg v. Paulk, 566 U.S. 356 (2012), there is absolute immunity for any grand jury witness, law enforcement or otherwise, from any civil action derived from their grand jury testimony, even if the grand jury testimony was knowingly or recklessly false or even where law enforcement officers have "conspired to present false testimony." This is, as some courts have observed, a harsh result and the Sixth Circuit questioned in Sanders v. Jones, 845 F3d 721 (6th Cir. 2017), "whether malicious prosecution remains a viable claim" after Rehberg in light of the difficulty it creates of overcoming the presumption of probable cause created by an indictment. The Sixth Circuit Squarely answered the question recently in King v. Harwood.
The Sixth Circuit concluded that malicious prosecution remains a viable claim even where there has been a grand jury indictment but only in the most limited of circumstances:
We hold that where (1) a law-enforcement officer, in the course of setting a prosecution in motion, either knowingly or recklessly makes false statements (such as in affidavits or investigative reports) or falsifies or fabricates evidence; (2) the false statements and evidence, together with any concomitant misleading omissions, are material to the ultimate prosecution of the plaintiff; and (3) the false statements, evidence, and omissions do not consist solely of grand jury testimony or preparation for that testimony (where preparation has a meaning broad enough to encompass conspiring to commit perjury before the grand jury), the presumption that the grand jury indictment is evidence of probable cause is rebuttable and not conclusive.
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.
A malicious prosecution claim depends on an absence of probable cause for the charge. One would think that an Alford plea, a guilty plea that does not admit guilt but admits that sufficient evidence exists to support a conviction, would bar a later malicious prosecution claim, since the plea acknowledges not only evidence establishing probable cause but also proof beyond a reasonable doubt. Not necessarily so the Sixth Circuit has ruled recently and surprisingly in King v. Harwood, a most interesting decision that threads the needle among the various immunities and other barriers that the courts have created through the years to prevent citizens harmed by unfounded prosecutions to get relief.
The Sixth Circuit explained:
But King's Alford plea does not help Defendants on summary judgment for two reasons. First, the district court's position requires inferring from King's Alford plea that King herself must have believed, at the time of entering the plea, that there was probable cause to prosecute her. But what King believed is either irrelevant to Harwood's actions, or is only evidentiary as to the factual issue of the existence of probable cause and is, therefore, inappropriate for resolution at summary judgment. Second, even if King did impliedly concede probable cause by signing the Alford plea, that does not retroactively prove that there had been probable cause to support King's prosecution all along.
The first point makes sense: it doesn't matter what King believed or didn't believe, it matters what she did. The second point, even for this plaintiff's lawyer, is hard to understand. The Alford plea is evidentiary and would seem to resolve not only the question of probable cause but also acknowledges the existence of evidence constituting proof beyond a reasonable doubt for the charge. Put another way, the Alford plea would seem to end any factual dispute about probable cause.
King v. Harwoodis a most interesting and notable case. The Alford plea was later vacated when a third party confessed to the murder with which King was charged. We will discuss this most unusual case in further posts.
Defendants facing supervised release revocation have a due process right that includes an "opportunity to be heard in person and to present witnesses and documentary evidence." Morrissey v. Brewer, 408 U.S. 471, 489 (1972). Put even better by the Ninth Circuit, the right requires "that a supervised releasee receive a fair and meaningful opportunity to refute or impeach the evidence against him in order to 'assure that the finding of a [supervised release] violation will be based on verified facts.'" United States v. Martin, 984 F.2d 308, 310 (9th Cir. 1993), quoting Morrissey, 408 U.S. at 484.
This due process right can be fulfilled by utilizing the subpoena powers under Fed.R.Crim.Pro. 17. Courts have found that Rule 17 subpoenas can be used for post-trial motions and sentencing. See U.S. v. Winner, 641 F.2d 825, 833 (10th Cir.1981) (“Although Rule 17 subpoenas are generally employed in advance of trial, we see no reason why their use should not be available for post-trial motions and sentencing.”); U.S. v. Boender, 2010 WL 1912425 *1 (N.D.Ill.2010) (“Although the structure of the federal rules as well as Rule 17's plain language suggest that the rule was meant to apply only before trial, courts have held that Rule 17 affords parties the ability to subpoena evidence for post-trial matters.”); see also U.S. v. Reaves, 194 F.3d 1315, 1999 WL 824833 (6th Cir.1999) (unpublished) (applying Rule 17 in the context of a sentencing hearing); 2 Wright & Miller, Federal Practice & Procedure § 272 (4th ed. 2011) (Rule 17 is not limited to subpoenas for the trial. A Rule 17 subpoena may be issued for a preliminary examination, a grand jury investigation, a deposition, for a pre-trial motion, and for a post-trial motion.); United States v. Reid, No. 10-20596, 2011 WL 5075661, at *2 (E.D. Mich. Oct. 26, 2011).
The Supreme Court ruled long ago that a defendant in probation or parole revocation proceedings had due process rights that would include the "opportunity to be heard in person and to present witnesses and documentary evidence." Morrissey v. Brewer, 408 U.S. 471 (1972). The Court admonished that the process right was not static, fixed or categorical: "It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands ... not all situations calling for procedural safeguards call for the same kind of procedure." The various circuits have all recognized that the Morrissey due process rights apply in supervised release revocation proceedings and are codified at Fed.R.Crim.Pro. 32.1.
So Morrissey sets a general rule but really how far does it go for a defendant facing revocation of supervised release. There is not a lot of caselaw out there that puts, so to speak, any meat on the bones. Perhaps the best articulation comes from the Ninth Circuit in United States v. Martin, 984 F.2d 308, 310 (9th Cir. 1993): "We construe that right as requiring that a supervised releasee receive a fair and meaningful opportunity to refute or impeach the evidence against him in order 'to assure that the finding of a [supervised release] violation will be based on verified facts.'" In Martin, the Ninth Circuit vacated a supervised release revocation because the district court denied the defendant's request that his urine sample be retested.
The Seventh Circuit in United States v. Pierre, 47 F.3d 241 (7th Cir. 1995), and the Fifth Circuit in United States v. McCormick, 54 F.3d 214 (5th Cir. 1995), both indicated that a defendant "is entitled to go beneath the surface of written reports." Both courts indicated that defendants could and should seek information and documentation regarding a lab's error rates, efforts to improve procedures and other information bearing on the reliability and accuracy of the reports they produce.
Here is Ms. Greenhouse's fair description of the case:
Chief Justice Rehnquist’s opinion for the 6-3 majority took the narrowest possible view of the facts in holding that the county agency, despite its employees’ absolute knowledge of the threat that Randy DeShaney posed to his son’s welfare, breached no constitutional duty to Joshua. More than a year before the final beating, the boy was hospitalized with suspicious injuries, but a “child protection team” assigned to look into the situation quickly returned him to his father. Other emergency room visits followed. County social workers visited the home 20 times, taking notes but no action on occasions when the father said the boy was too sick to see them.
It is a decision that immunizes and insulates government from the type of accountability which does not seem at all unreasonable. The decision in DeShaney is somewhat defensible, because the liability claim is premised on a notion, at least to some degree, that government has a duty to provide minimal security and safety to its citizens including even to a small child. That can be an elastic standard, because the questions could be endless as to win such a duty commences and how far it extends.
With regard to political and social minorities Justice Scalia advocates redress through the political process; where corporations are involved, however, he is most willing to offer constitutional protections.
Occasionally in criminal cases, particularly federal criminal cases, the client finds that it is necessary to sit down for a proffer session with law enforcement officers and prosecutors in which the defendant discloses facts that would support some or all of the charges against him. While there is usually a "proffer agreement" stating something to the effect that the disclosures in the proffer session can't be used directly against the defendant, there is also usually a provision that the government may produce evidence of the defendant's statements at the proffer session if the defendant would go to trial and, according to a recent Sixth Circuit decision in United States v. Shannon, do just about anything other than confess from the get-go.
Shannon was charged in a Medicare fraud conspiracy. Before eventually going to trial Shannon his lawyer in tow participated in a proffer session. They were presented with what is commonly referred to as a Kastigarletter that had these two paragraphs:
(2) Except as otherwise specified in this letter, no statement made by you or your client during this proffer discussion will be offered against your client in the government's case-in-chief in any criminal prosecution of your client for the matters currently under investigation.
(3) If your client is prosecuted, the government may use your client's statements in cross-examining your client, and to rebut any evidence offered by your client that is inconsistent with the statements made during this discussion. This is to ensure your client does not abuse the opportunity for this proffer discussion by making false or misleading statements, either at the proffer discussion or at trial.
Shannon made several statements in the proffer session inculpating himself in the health care fraud conspiracy.
For whatever reason, the plea negotiations fell apart. At trial, an Akhtar, a cooperating defendant, testified that Shannon recruited patients for his pain clinic and regarding some details of Shannon's recruiting tactics including payoffs. Shannon's defense lawyer, apparently under the misapprehension that he was supposed to actually function like a defense lawyer instead of an enabler for whatever the prosecutor wanted to do, cross-examined Akhtar on the point that he had no first-hand knowledge of whether Shannon had made payments. This the district court found to go "too far" and the government was permitted to introduce Shannon's proffered statements.
The Sixth Circuit affirmed, and its analysis should tell any federal criminal defense lawyer and defendant that a decision to attend a proffer session is also a decision to plead guilty and not go to trial. Here's what the Sixth Circuit explained:
cross-examining a witness is presenting evidence
presenting a position, which should be read as announcing ready, for trial is presenting evidence
making any argument is presenting evidence or a position, which should be read as stating in opening statement that the government will not be able to prove its case beyond a reasonable doubt
The Sixth Circuit's decision and analysis further strengthens the already way too strong hand of federal prosecutors. It treats the proffer agreement by traditional contract law principles, one of which is (one that goes unmentioned) that the parties to a contract have a duty of good faith and fair dealing toward each other. One wonders if the government lived up to that before the plea negotiations went south.
