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.