John T. Floyd Law Firm
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Comments on Criminal Issues
March 13, 2007
COURT ALLOWS WRONGFUL CONVICTION LAWSUIT TO PROCEED
Houston Criminal Defense Attorney John Floyd Discusses Civil Rights Lawsuits Brought by Those Wrongly Convicted of Crimes.
Dennis Patrick Brown, an African-American was convicted in Covington, St. Tammany Parish, Louisiana in 1984 for the crime of aggravated rape of a white woman and given a mandatory life sentence without the benefit of parole. Twenty years later he was exonerated by DNA evidence and released from custody. See: Brown v. Miller, 2008 LEXIS 4169 (5th Cir., Feb. 27, 2008)
In 1996 a U.S. Justice Department report found that between 20 to 25 percent of all defendants convicted in sex crimes are innocent. By the end of 2007 more than 200 people in American prisons had been exonerated by DNA evidence, and 60 percent of those exonerations involved African-American or Hispanic persons – and of those exonerated in rape cases, 85 percent of them were African-American men convicted of raping white women.
Why are so many African-American men wrongfully convicted for raping white women?
The Dennis Patrick Brown case offers some revealing insight. The Fifth Circuit outlined the background facts that led up to Brown’s wrongful conviction:
“Jane Doe, a white woman, was raped in her home in Covington, Louisiana, in 1984. She provided her minipad and underwear to the police, along with specimens from a rape examination, all of which were forwarded to the Louisiana State Police Crime Laboratory. Ms. Doe also assisted the police in creating a sketch of her attacker, though the sketch lacked identifiable features because the attack had occurred in the dark and the attacker had worn a baseball cap and mask. Later, Ms. Doe identified Brown as her attacker in a line-up; he had been asked to volunteer for the line-up only as a ‘fill-in’ and was not represented by counsel. The police obtained samples of blood, hair, and saliva, and fingerprinted Brown but did not arrest him.
”The police investigator forwarded the physical samples to the Louisiana State Crime lab, along with an annotation that Brown had been ‘identified via line-up.’ Brown alleges that this annotation violated department policy, and that its purpose was to encourage the lab to confirm a genetic match and to suppress any exculpatory results. Miller, the laboratory technician, performed the ‘ABO test’ on the samples, and then compared the antigens in Brown's blood with the antigens found in the mixture of blood and semen from the minipad and underwear. This test revealed the presence of the H antigen in the mixture. Both Jane Doe and Brown had blood type O and were secretors. Brown alleges that at least three scenarios were consistent with these facts: (i) the rapist was a non-secretor of any blood type, and the H antigen from the minipad came from Jane Doe's own blood rather from the rapist's semen, (ii) the rapist was a type O secretor, or (iii) the majority of the blood-semen mixture consisted of the victim's own blood, and the characteristics of the semen were ‘masked’ and did not appear in the results. Brown alleges that at this point Miller either intentionally and in bad faith failed to conduct additional, commonly used tests (‘Rh tests’ and ‘enzyme tests’) that would have made the identification more specific and accurate, and likely excluded Brown as the donor, or, in the alternative, that Miller did conduct those tests, that those tests were conclusively exculpatory, and that Miller concealed the exculpatory results. Brown specifically alleges that these other tests were commonly used in the same lab at the time, that Miller knew about and used those other tests in the same year, that Miller was unable to draw conclusions in similar identification cases without performing those more specific tests, and that Miller could have performed those tests in Brown's case. Miller argues that these facts support an inference either that Miller actually did conduct the tests in this case or that he knew he should have reported that his results were inconclusive without further testing.
”Shortly after the testing, Miller gave ‘verbal confirmation’ of a positive match to an investigating officer. Although the content of this conversation is unknown, the officer immediately swore out an affidavit that Brown had been ‘positively identified’ by the blood test. Brown alleges that this verbal confirmation was in violation of police procedure. Police officers arrested Brown, and he was charged with the rape.
”Miller later submitted a written report, which stated that the semen donor either had blood type O or was a non-secretor. Brown alleges that this was a scientifically inaccurate conclusion to draw from the results, because it failed to acknowledge possibility (iii) above--that the H antigen had come only from the victim's own blood and indicated nothing about the rapist. At trial, Miller testified that he could conclude on the basis of his blood tests that Brown was within the 46.5% of the male population who could have contributed the semen. Brown alleges that this statement was inaccurate and misleading for the same reasons his report was misleading.” Id., LEXIS at 2-5.
Houston, Harris County has experienced more than its share of official misconduct with its crime lab. There have been several high-profile DNA exonerations of individuals wrongfully convicted for sex offenses through official misconduct by county crime lab technicians – the most recent being the Ronald Gene Taylor case reported in this column (YET ANOTHER HARRIS COUNTY DNA EXONERATION, Oct. 11, 2007). The only way these kinds of cases involving official misconduct by either the police or crime lab technicians who either misrepresent or fabricate evidence to secure a wrongful conviction can be deterred is through post-exoneration civil damage lawsuits. Brown v. Miller lends credence to this advice.
The Innocence Project, in conjunction with the State of Louisiana, re-tested the Brown’s victim’s minipad in 2003, and that testing revealed that Brown could not have been the donor of the semen. He was immediately released by state officials and St. Tammany Parish prosecutors declined to re-prosecute. Id., LEXIS at 5. Brown filed a 42 U.S.C. § 1983 civil rights lawsuit against Jerry Miller, the City of Covington, and several police officers alleging denial of due process, racial animus, and malicious prosecution, along with several other state law claims. Id.
Miller filed a Federal Rule 12(b) motion to dismiss claiming he was entitled to official immunity against Brown’s claims. The district court ordered Brown to respond to Miller’s claim of immunity.
The United States Supreme Court has long, convoluted history of wrestling with the issue of qualified immunity for government officials. The Court in 1982 held that government officials are entitled to qualified immunity in performing discretionary functions “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” See: Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The Harlow court effectively abandoned the subjective element of the good faith test adopted in Wood v. Strickland, 420 U.S. 308, 321 (1975) seven years earlier. Id., 457 U.S. at 815-16. The “subjective element” test simply did not fulfill the objective stated by the Court in Butz v. Economou, 438 U.S. 478 (1978) that government officials should not have to defend against insubstantial claims. Id.
Five years after Harlow, the Supreme re-visited the qualified immunity issue. See: Anderson v. Creighton, 483 U.S. 635 (1987). The Anderson court confronted the difficulty of determining the availability of the defense without subjecting the defendant to the burdens of discovery. The Court opted to make the determination of whether “a reasonable official would understand that what he is doing violates [a clearly established] right” a fact-specific inquiry. Id., at 640. While acknowledging that discovery may be necessary to conduct this inquiry, the Court said that “qualified immunity questions should be resolved at the earliest possible stage of a litigation.” Id., at 646. The court added that in those cases where discovery is necessary it “should be tailored specifically to the question of [defendants’] qualified immunity.” Id.
But Anderson did not resolve the enormous difficulties associated with the defense of qualified immunity. Four years after Anderson the Supreme Court once again accepted a case “to clarify the analytical structure under which a claim of qualified immunity should be addressed.” See: Siegert v. Gilley, 111 S.Ct. 1789, 1793 (1991). In Siegert the Court reaffirmed its previous holding [Gomez v. Toledo, 446 U.S. 635 (1980)] that when a defendant pleads a qualified immunity defense, the trial should determined both the applicable law and whether it was “clearly established” when the alleged wrongful action occurred. The Siegert court held that discovery cannot be conducted in a case until this threshold question is answered. Id., 111 S.Ct. at 1795.
Following the instruction of these Supreme Court mandates, the Fifth Circuit carved out the guidelines the trial court should adhere to in qualified immunity cases:
“ … First, the district court must insist that a plaintiff suing a public official under § 1983 file a short and plain statement of his complaint, a statement that rests on more than conclusions alone. Second, the court may, in its discretion, insist that a plaintiff file a reply tailored to an answer pleading the defense of qualified immunity. Vindicating the immunity doctrine will ordinarily require such a reply, and a district court's discretion not to do so is narrow indeed when greater detail might assist. The district court may ban discovery at this threshold pleading stage and may limit any necessary discovery to the defense of qualified immunity. The district court need not allow any discovery unless it finds that plaintiff has supported his claim with sufficient precision and factual specificity to raise a genuine issue as to the illegality of defendant's conduct at the time of the alleged acts. Even if such limited discovery is allowed, at its end, the court can again determine whether the case can proceed and consider any motions for summary judgment under Rule 56.” See: Schultea v.Wood, 47 F.3d 1427, 1433-34 (5th Cir 1995)
The Fifth Circuit in Brown v. Miller followed the lead of Schultea by upholding the trial court’s rejection Miller’s qualified immunity defense:
”To prevail on a claim under 42 U.S.C. § 1983, ‘a plaintiff must first show a violation of the Constitution or of federal law, and then show that the violation was committed by someone acting under color of state law.’ The qualified immunity defense to such claims seeks to shield from liability government officials performing discretionary functions ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ Courts must evaluate claims of qualified immunity in a two step process: first, a court must determine whether the ‘facts alleged show the officer's conduct violated a constitutional right’; if the court finds a violation then it proceeds to the second step, which is to determine whether ‘the right was clearly established . . . in light of the specific context of the case.’ ‘To be clearly established for purposes of qualified immunity, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ There need not be ‘commanding precedent’ that holds that the ‘very action in question’ is unlawful; the unlawfulness need only be ‘readily apparent from relevant precedent in sufficiently similar situations.’
”Brown alleges two acts that he claims violated his rights. First, he alleges that Miller overstated the results of the blood tests he conducted, effectively fabricating evidence by overstating his results and putting forward misleading scientific conclusions. Second, he alleges that Miller ran additional tests besides those he reported (i.e., enzyme tests), that the results exculpated Brown, and that Miller concealed, suppressed, or destroyed these results.
”Brown alleges that Miller's laboratory report ‘had no scientific basis [and] grossly overstated the results of [the] laboratory results, and violated standard procedures for analyzing blood-semen stains,’ thus creating a ‘misleading and materially inaccurate inculpatory serology report’ when Miller knew he should have reported that the results were inconclusive. A criminal defendant's due process rights are violated when the government obtains a conviction with testimony that government agents know is false. In Geter v. Fortenberry, we stated that ‘a police officer cannot avail himself of a qualified immunity defense if he procures false identification by unlawful means . . . .’ A false or scientifically inaccurate report is equivalent to any other false evidence created by investigators, such as a false police report; as we have stated, there is no reason a government scientific expert ‘should enjoy immunity greater than that of other investigators.’ As the First Circuit held, ‘if any concept is fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence . . . .’ And, as that court explained, the right of criminal defendants to be free from false or fabricated evidence was well settled by 1959 or earlier. On facts similar to those in this case, the Tenth Circuit concluded that the laboratory technician was not entitled to qualified immunity for the allegedly false reports made in 1986. We therefore hold that the deliberate or knowing creation of a misleading and scientifically inaccurate serology report amounts to a violation of a defendant's due process rights, and that a reasonable laboratory technician in 1984 would have understood that those actions violated those rights. The district court did not err in denying qualified immunity on this theory.” Id., LEXIS at 7-10.
The decision by legal counsel to take on the enormous resources of the government by filing a civil damages lawsuit over a wrongful conviction must be carefully considered. It will generally lead to years of costly litigation. But when the police, or crime lab technicians, conceal, suppress, and/or destroy exculpatory evidence in order to secure a wrongful conviction, counsel’s decision becomes easier to make. Decisions like Brown v. Miller reinforce the traditional rule of law that government officials while performing their discretionary functions simply cannot violate “clearly established” rights of individuals like Dennis Patrick Brown.
In Houston, Harris County officials were recently forced to settle a federal civil rights lawsuit brought by brothers Sean and Erik Ibarra against deputies of the county’s sheriff’s department. The Harris County Commissioners Court agreed to pay the brothers $1.7 million because sheriff deputies violated the rights of the brothers during a 2002 drug raid of a neighbor’s home. The brothers took pictures of the raid which infuriated the drug raiding officers who, in turn, seized the Ibarra brothers’ camera, destroyed the film in the camera, and searched their home without probable cause. It was a classic episode of “cops gone wild.”
While the Ibarra brothers’ lawsuit will long be remembered in Houston as the lawsuit that brought down Harris County District Attorney Chuck Rosenthal, the lawsuit is much more significant. Like the recent Brown v. Miller decision, it proves that lawless government officials should be, and can be, held accountable for their actions. More importantly, perhaps, is the attention these cases bring to the public. We should all know by now that are elected officials and law enforcement are not perfect. They make mistakes and often lie or stretch the truth to get a conviction. This should be emphasized to a jury during jury selection to help demonstrate the importance of requiring the government prove each and every element of their case beyond a reasonable doubt.
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