The Innocence Project and the Righting of Wrongful Convictions: Causes, Civil Consequences and Resulting Coverage Issues By Janis C. Puracal Oregon Innocence Project Lauren S. Curtis, Esq. Traub Lieberman Straus & Shrewsberry, LLP Robert C. Lockwood, Esq. Wilmer & Lee, P.A. Thomas P. Miller, Esq. Christie Law Group, PLLC The Innocence Project Since 1989, more than 1,600 people in the United States have been exonerated.1 In 2014, a record was set when 125 wrongful convictions were overturned nationwide, and, exonerations in 2015 are on track to break the record again, with 116 known exonerations as of the time of this writing in October. Many of the exonerations nationwide are the indirect result of advances in forensic DNA analysis and its introduction into the criminal justice system. DNA-driven discoveries have forced our communities to acknowledge that even the most advanced criminal justice systems in the world make frequent and serious mistakes that result in wrongful convictions and incarcerations. 1 National Registry of Exonerations, http://www.law.umich.edu/special/exoneration/Pages/about.aspx (last visited November 1, 2015). 1
This rising tide releasing hundreds of wrongfully convicted prisoners is the result of sustained efforts by lawyers, law students, professors, journalists, scientists, and current and former prisoners—a broad collaboration that has become known as the Innocence Movement. See Marvin Zalman, An Integrated Model of Wrongful Convictions, 74 ALBANY L. REV. 1465, 1468 (2011); KEITH A FINDLEY AND
AND
LARRY GOLDEN, THE INNOCENCE MOVEMENT,
THE INNOCENCE
NETWORK,
POLICY REFORM, WRONGFUL CONVICTION AND CRIMINAL JUSTICE REFORM: MAKING
JUSTICE 93–100 (Marvin Zalman & Julia Carrano eds., 2014). The Innocence Movement recognizes that “innocent people are convicted in sufficiently large numbers * * * to require efforts to exonerate them, and to advance structural reforms to reduce such errors in the first place.” Zalman, supra, at 1468. The
development
of
DNA
testing
has
revolutionized
criminal
investigations and our ability to recognize actual innocence. Before the 1980s, the study of wrongful convictions had been “largely and somewhat curiously ignored” by researchers, with published literature so rare that “it might have seemed bizarre, if not incoherent, to suggest that the study of miscarriages of justice constituted a field or area of academic study.”
Richard A. Leo,
Rethinking the Study of Miscarriages of Justice: Developing a Criminology of Wrongful Conviction, 21 J. CONTEMP. CRIM. JUST. 201, 204 (2005). The oncedominant certainty was that the US criminal justice system almost never convicts an innocent person.
In 1985, Attorney General Edwin Meese
commented, “[T]he thing is, you don’t have many suspects who are innocent of a crime. That’s contradictory. If a person is innocent of a crime, then he is not 2
a suspect.”
Justice Under Reagan: Reagan Seeks Judges with “Traditional
Approach,” U.S. NEWS & WORLD REPORT, October 14, 1985 at p. 67. The “ghost of the innocent man convicted,” according to Judge Learned Hand, was “an unreal dream.” United States v Garsson, 291 F. 646, 649 (S.D. N.Y. 1923). The ghost proved real with the advent of DNA testing. DNA evidence entered the US criminal courts as a prosecutor’s tool in 1987. Prosecutors secured the first conviction using DNA evidence in a rape case in Orlando, Florida in 1987. Andrews v. State, 533 So.2d 841, 850-51 (Fla. Dist. Ct. App. 1988) (abrogated on other grounds in Hadden v. State, 690 So.2d 573, 577 (Fl. S. Ct. 1997)).
Prosecutorial use of DNA evidence
immediately took off. Defense attorneys, however, approached forensic DNA antagonistically, and the ensuing courtroom battles came to be known as “the DNA wars.” William C. Thompson, Evaluating the Admissibility of New Genetic Identification Tests: Lessons From the “DNA War,” 84 J. CRIM. L. & CRIMONOLOGY 22, 23 (1993).
The founders of the Innocence Project, Barry Scheck and Peter
Neufeld, first developed their expertise by attempting to discredit DNA science. Scheck and Neufeld mounted “the three most widely publicized challenges to the validity and reliability of forensic DNA analysis” in People v. Castro, 540 N.Y.S.2d 143, 144 (N.Y. Crim. Ct. 1989), United States v. Yee, 134 F.R.D. 161, 165 (N.D. Ohio 1991), and People v. Orenthal James Simpson, commonly known as the “O.J. Simpson case,” April 1995 Trial Transcripts, CNN, available at: http://www.cnn.com/US/OJ/trial/apr/. 3
It was through the mounting attacks on DNA science that the testing began to advance toward a tool to exonerate.
In 1992, Scheck and Neufeld
founded the Innocence Project as a clinical course at Cardozo Law School. Findley, supra, at 93, 94. Still, the power of DNA evidence was not widely known or appreciated. It was not until 1995 that DNA was, for the first time, showcased to the public. That year marked the now infamous “OJ Simpson trial,” where Scheck and Neufeld publicly attacked the reliability of DNA testing used by the prosecution. By the end of that trial, the public had become intrigued by the power of forensic DNA to exonerate. See ZALMAN, supra, at 1489. It would take nearly another decade before similar “innocence projects” were established in 21 states around the country. Innocence Network, History of
the
Innocence
Network
and
Network
Support
Unit,
http://www.innocencenetwork.org/history (last visited November 1, 2015). In 2005, the projects joined to form the Innocence Network, which has grown from 21 projects to 65 projects in the last nine years and become the engine of the Innocence Movement.
Today, there are innocence projects or programs
covering every state in the country, as well as member organizations around the world.2 These innocence projects work pro bono, relying on donations and grants, to track inmates’ claims of actual innocence, investigate those claims, 2 Before 2014, Oregon was the only state in the country without an innocence project or similar program. That changed when the Oregon Innocence Project launched in April 2014 and brought Oregon into the innocence movement, handling direct representation, policy work, and amicus, all at no cost to the wrongfully convicted inmate or his/her family: www.oregoninnocence.org. 4
test DNA and other scientific evidence, and litigate when appropriate.
The
more than 1,600 exonerations around the country have proven that wrongful convictions
are
the
result
of
multiple
causes,
including
eyewitness
misidentifications, unvalidated and improper forensics, false confessions, and others. As a result, the Innocence Movement has grown far beyond its DNA roots and resulted in exonerations relying on both DNA and non-DNA evidence. Civil Consequences I.
Do Advances in DNA Testing Provide Any New or Unique Areas of Redress for Civil Plaintiffs? Statistics from the Innocence Project indicate that there have been 333
post-conviction DNA exonerations in the United States since 1989.
DNA
Exonerations Nationwide, The Innocence Project, Oct. 26, 2015, available at http://www.innocenceproject.org/free-innocent/improve-the-law/factsheets/dna-exonerations-nationwide. Yet, the rise of DNA exonerations does not necessarily provide any new claims for civil plaintiffs seeking redress for their wrongful conviction. Instead, it is probably more-appropriate to say that DNA exonerations provide plaintiffs with a useful starting point in their attempt to prove a wrongful conviction. Indeed, for most wrongful conviction claims, there must be more than exoneration. There must be proof of conduct which is truly wrongful. While constitutional claims require no showing of intent, most successful claims involve conduct by prosecutors, investigators or witnesses which demonstrate a deliberate attempt to secure an improper conviction.
5
The Innocence Project
has identified the four most common contributing causes to wrongful conviction in DNA exoneration cases:
The Causes of Wrongful Conviction, The Innocence Project, available at http://www.innocenceproject.org/causes-wrongful-conviction.
Notably,
the
most common causes of wrongful conviction (eyewitness misidentification and invalid forensics) do not appear to implicate the type of deliberate action found in most successful wrongful conviction claims. Certainly, there will be cases where invalid forensics will combine with malfeasance like suppression or fabrication of evidence to support a tort claim for wrongful conviction. Yet, in other cases, there simply will not be enough evidence beyond exoneration to support a wrongful conviction claim: "an error in forensic analysis -- even a glaring error -- is not actionable as a violation of due process." Gauger, 799 F.3d 833, 835 (7th Cir. 2015). 6
Stinson v.
Even if in the face of an unjust conviction, not every wrong has a legal remedy.
Nevertheless, there is a remedy for many people who have been
wrongfully convicted. The federal government, the District of Columbia and 31 states have enacted statutes providing financial compensation to wrongfully convicted persons. Following is a chart with citations to the pertinent statutes: ALABAMA
CALIFORNIA
COLORADO
CONNETICUT
Ala. Code 1975 § 29-2159
2015 Cal. Legis. Serv. Ch. 422 (S.B. 635) (West 2015)
Colo. Rev. Stat. §§ 13-65101 et seq.
Conn. Gen. Stat. Ann. § 54-102uu (West 2009)
DISTRICT OF COLUMBIA D.C. Code § 2-423 (2001)
FLORIDA
ILLINOIS
Fla. Stat. Ann. § 961.06 (West 2015)
705 I.L.C.S 505/8 (West 2009)
IOWA
LOUISIANA
MAINE
MARYLAND
MASSACHUSETTS
MISSISSIPPI
Iowa Code Ann. § 663A.1 (West 2010)
La. Rev. Stat. Ann. § 15:572.8 (2010)
14 M.R.S.A. § 8242 (2015)
Md. Code Ann., State Fin. & Proc. § 10-501 (2010)
M.G.L.A. 258D § 5(A) (2009) et seq.
Miss. Code Ann. § 11-44-7 (2009)
MISSOURI
MONTANA
NEBRASKA
V.A.M.S. § 650.058 (2007)
Mont. Code Ann. § 53-1-214 (2014)
Neb. Rev. Stat. Ann. § 29-4604 (2009)
NORTH CAROLINA N.C. Gen. Stat. Ann. § 148-84 (2010)
VIRGINIA
NEW HAMPSHIRE N.H. Rev. Stat. Ann. § 541-B:14 (2007)
NEW YORK N.Y. Ct. Clms. § 8-b (McKinney 2010)
OHIO
OKLAHOMA
TENNESSEE
TEXAS
UTAH
Ohio Rev. Code Ann. § 2743.48 (2013)
51 Okla. Stat. Ann. § 154 (2001)
Tenn. Code Ann. § 9-8-108 (2013)
Tex. Civ. Prac. & Rem. Code Ann. § 103.001 (Vernon 2011)
Utah Code Ann. § 78B9-405 (2012)
WASHINGTON
WEST VIRGINIA
WISCONSIN
7
NEW JERSEY N.J. Stat. Ann. § 52:4C-5 (West 2013)
VERMONT
VIRGINIA
FEDERAL COMPENSATION STATUTE
Va. Code Ann. § 8.01-195.11 (2014)
II.
Wash. Rev. Code Ann. §§ 4.100.060 (2013)
W.Va. Code Ann. § 14-2-13a (2014)
Wis. Stat. Ann. § 775.05 (West 2015)
13 Vt. Stat. Ann. § 5574 (2015)
Va. Code Ann. § 8.01-195.10 (2010)
28 U.S.C. § 2513
Wrongful Conviction Claims A.
42 U.S.C. § 1983
42 U.S.C § 1983 provides a remedy to any party who is deprived of a constitutional right by a person acting "under color of state law." The phrase "under color of state law" extends beyond purely state entities to municipalities and other local governmental units. Monell v. Department of Social Servs. of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Moreover, it is possible for private individuals and entities to be liable under Section 1983: “[To] act ‘under color of’ state law for § 1983purposes does not require that the defendant be an officer of the State. It is enough that he is a willful participant in joint action with the State or its agents.” Dennis v. Sparks, 449 U.S. 24, 28 n. 4, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). From those general parameters, a variety of constitutional claims are possible. 1.
Suppression of Evidence / Brady v. Maryland
In Brady v. Maryland, the Supreme Court held: “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Brady v. Brady thus
imposes a "no fault standard of care on prosecutors" based upon the Fourteenth Amendment's guarantee of the right to a fair trial. Porter v. White, 8
483 F.3d 1294, 1305 (11th Cir. 2007). While Brady's "no fault" standard may result in habeas corpus relief and a new trial for criminal defendants, prosecutors are entitled to absolute immunity for failure to disclose exculpatory evidence. See e.g. Carter v. Burch, 34 F.3d 257, 263 (4th Cir.1994) (prosecutor entitled to absolute immunity for “allegation that he withheld materially exculpatory evidence”). Brady obligations are not limited to prosecutors, however. Police officers, investigators and forensic personnel are also obligated to disclose exculpatory evidence. See, e.g., Brady v. Dill, 187 F.3d 104, 114 (1st Cir.1999) (“One standard police function is to provide information to the prosecutor and the courts. Thus, a police officer sometimes may be liable if he fails to apprise the prosecutor or a judicial officer of known exculpatory information.”); Hart v. O'Brien, 127 F.3d 424, 446–47 (5th Cir.1997) (“[A] plaintiff states a section 1983 claim against a police officer who, after learning of ‘patently exculpatory evidence,’ deliberately fails to disclose it to the prosecutor.”); McMillian v. Johnson, 88 F.3d 1554, 1569 (11th Cir.1996) (“Our case law clearly established that an accused's due process rights are violated when the police conceal exculpatory or impeachment evidence.”); Walker v. City of New York, 974 F.2d 293, 299 (2d Cir.1992)(“The police satisfy their obligations under Brady when they turn over exculpatory evidence to the prosecutors.”); Geter v. Fortenberry, 882 F.2d 167, 171 (5th Cir.1989)(affirming denial of qualified immunity for police officer with respect to plaintiff's claim that the officer failed to disclose exculpatory evidence); Jones v. City of Chicago, 856 F.2d 985, 995 (7th 9
Cir.1988) (“Brady v. Maryland does not require the police to keep written records of all their investigatory activities; but attempts to circumvent the rule of that case by retaining records in clandestine files deliberately concealed from prosecutors and defense counsel cannot be tolerated.”) Police officers are not generally entitled to the same absolute immunity which protects prosecutors. As a result, there is a split in authority among the Circuit Courts of Appeals regarding the type of conduct which will expose a police office to liability for a Brady violation under Section 1983. For example, in Porter v. White, the Eleventh Circuit held that "a negligent act or omission cannot provide a basis for liability in a § 1983 action seeking compensation for loss of liberty occasioned by a Brady violation." Porter v. White, 483 F.3d 1294, 1308 (11th Cir. 2007). Similarly, the Eighth Circuit holds: "The recovery of § 1983 damages requires proof that a law enforcement officer ... intended to deprive the defendant of a fair trial.” Villasana v. Wilhoit, 368 F.3d 976, 980 (8th Cir. 2004); see also Owens v. Baltimore City State Attorney's Office, 767 F.3d 379, 396-97 (4th Cir. 2014) (prima facie Brady suppression claim requires proof of "bad faith"). Nevertheless, other Circuits do not require evidence of intent. See, e.g., Tennison v. City and Cnty. of San Francisco, 570 F.3d 1078, 1089 (9th Cir. 2009)(“[A] § 1983 plaintiff must show that police officers acted with deliberate indifference to or reckless disregard for an accused's rights or for the truth in withholding evidence from prosecutors.”); Moldowan v. City of Warren, 578 F.3d 351, 384 (6th Cir. 2009)("the critical issue in determining whether government conduct deprived a criminal defendant of a fair trial is the 10
nature of the evidence that was withheld; it emphatically is not the mental state of the government official who suppressed the evidence."); see also Drumgold v. Callahan, 707 F.3d 28, 43 n. 1 (1st Cir. 2013)("Non-disclosure with a less culpable state of mind might suffice.") 2.
Fabrication of Evidence
While Brady claims can potentially implicate a negligent failure to disclose evidence, other cases involve willful fabrication of evidence. Most, if not all, courts recognize that fabrication of evidence violates constitutional rights -- the only disagreement appears to be which constitutional right. See Cole v. Carson, 802 F.3d 752, 768-71 (5th Cir. 2015)(reviewing cases from Circuit Courts and holding "Where police intentionally fabricate evidence and successfully get someone falsely charged with a felony as cover for their colleagues' actions, and the Fourth Amendment is unavailing, there may be a due process violation."); Morse v. Fusto, U.S. App. LEXIS 16154, n.7 (2d Cir. 2015)(noting "inconsistent" decisions on whether fabrication claims “arise[ ] under the Sixth Amendment right to a fair and speedy trial, or under the due process clauses of the Fifth and Fourteenth Amendments."); Halsey v. Pfeiffer, 750 F.3d 273, 291 (3d Cir. 2014)(discussing fabrication claims in the context of Fourth and/or Fourteenth Amendment). 3.
Procuring False Identification by Unlawful Means
Investigators
are
frequently
accused
of
contributing
to
wrongful
convictions through the use of impermissibly suggestive witness identification methods.
Once again, there appears to be a general consensus that 11
procurement of a false identification through unlawful means implicates a constitutional right -- the right at issue, however, is in dispute.
See, e.g.,
Burton v. St. Louis Bd. of Police Com'rs., 731 F.3d 784, 797 (8th Cir. 2013) (finding Sixth Amendment right to a fair trial is the "core right" at issue in suggestive lineup cases); Good v. Curtis, 601 F.3d 393, 398 (5th Cir. 2010) ("manipulating a photo for a photo lineup to produce a false identification" implicates Fourteenth Amendment Due Process). 4.
Malicious Prosecution
Unlike other Section 1983 claims, there is no consensus on whether a constitutional tort for malicious prosecution exists.
The jurisdictions
recognizing the claim find that the Fourth Amendment right to be free from unreasonable seizure is implicated by a malicious prosecution.
See, e.g.,
Johnson v. Moseley, 790 F.3d 649, 654 (6th Cir. 2015); Halsey v. Pfeiffer, 750 F.3d 273, 296-97 (3d Cir. 2014); Sevosityanova v. Cobb County, 569 Fed. App'x 666, 668 (11th Cir. 2014).
Other jurisdictions, however, are reluctant to
recognize a constitutional claim. Newsome v. McCabe, 256 F.3d 747, 750-52 (7th Cir. 2001)(because malicious prosecution are founded on the right to due process, not the Fourth Amendment, there is no malicious prosecution claim under federal law if state law provides a similar cause of action); Bates v. Hadden, 576 Fed. App'x 636, 639 (8th Cir. 2014)("malicious prosecution is not a constitutional injury"). The elements of a malicious prosecution claim also vary from circuit to circuit.
For example, the Second Circuit requires that a plaintiff "show a 12
violation of his rights under the Fourth Amendment and … establish the elements of a malicious prosecution claim under state law.” Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir.2010). The Fourth Circuit requires proof: “that the defendant (1) caused (2) a seizure of the plaintiff pursuant to legal process unsupported by probable cause, and (3) criminal proceedings terminated in plaintiff's favor.” Bryant v. Carico, 616 Fed. App'x 84, 85 (4th Cir. 2015). The elements of the claim in the Sixth Circuit are more detailed: (1) a criminal prosecution was initiated against the plaintiff and the defendant made, influenced, or participated in the decision to prosecute; (2) there was no probable cause for the criminal prosecution; (3) as a consequence of the legal proceeding, the plaintiff suffered a deprivation of liberty apart from the initial seizure; and (4) the criminal proceeding was resolved in the plaintiff's favor. Johnson v. Moseley, 790 F.3d 649, 654 (6th Cir. 2015). Absolute immunity will protect most prosecutors from claims of malicious prosecution. As a result, most claims will be asserted against police officers and investigators. Even in those instances, however, challenges to the elements of a claim are available. claim is lack of probable cause.
For example, a universal element of the
But, some jurisdictions will grant qualified
immunity to a police officer so long as "arguable probable cause" existed. See Arrington v. City of New York, No. 15-170-cv, 2015 WL 3998719 at *2 (2d Cir. Oct. 15, 2015); Stonecipher v. Valles, 759 F.3d 1134 (10th Cir. 2014). "Arguable probable cause is present when reasonable officers in the same circumstances and possessing the same knowledge as the defendant could
13
have believed probable cause existed." Grider v. City of Auburn,618 F.3d 1240, 1257 (11th Cir.2010). Defendants can also challenge the "favorable termination" element. Some jurisdictions impose a burden upon the plaintiff to demonstrate "actual innocence" as part of a favorable termination. Hector v. Watt, 235 F.3d 154, 156 (3d Cir. 2000); but see Uboh v. Reno, 141 F.3d 1000, 1004 (11th Cir. 1998)("Actual innocence, however, is not required for a common law favorable termination").
Arguments can also arise over whether a nolle prosequi is a
"favorable termination." See Hilfirty v. Shipman, 91 F.3d 573, 579–80 (3d Cir.1996)(“a grant of nolle prosequi is insufficient to support a claim of malicious prosecution only in circumstances where the accused herself enters into a compromise with the prosecution in which she surrenders something of value to obtain the dismissal,” or in cases in which “the accused formally accepts the grant of nolle prosequ in exchange for her knowing, voluntary release of any future claims for malicious prosecution.”). Obviously, a guilty plea will foreclose the possibility of finding a favorable termination. Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); McIntosh v. Crist, No. 13–103, 2015 WL 418982 at *6 (W.D.Pa. Feb.2, 2015)(Guilty plea to other charges was not favorable termination of charges dismissed as a result). Similarly, nolo contendere or "no contest" pleas are not favorable terminations where such a plea constitutes a conviction under state law. Watson v. New Orleans City, 275 F.3d 46 (5th Cir.2001). Generally, "courts have found that withdrawal of criminal charges pursuant to a compromise or agreement does 14
not constitute favorable termination and, thus, cannot support a claim for malicious prosecution." Uboh v. Reno, 141 F.3d 1000, 1004 (11th Cir. 1998). B.
State Law Claims
The focus of this presentation is wrongful conviction claims arising under 42 U.S.C. § 1983. Even so, it is worthwhile to note that plaintiffs can bring tort claims in state court, including malicious prosecution claims, without invoking federal law. Moreover, some states have enacted statutes that authorize civil actions in state court for violations of state or federal constitutional provisions. See, e.g., Ark. Code Ann. § 16-123-105(a); Neb. Rev. Stat. § 20-148 (1997); N.M. Stat. Ann. § 41-4-4 (2001); N.J. Stat. Ann. §§ 10:6-1, et seq.
Other
jurisdictions authorize common law tort suits similar to a federal Bivens action. See, e.g., Brown v. State of New York, 674 N.E. 2d 1129 (N.Y. 1996). III.
Defenses A.
Absolute Immunity
The Supreme Court has generally recognized two kinds of immunity which shield official actions from liability that might otherwise arise under section 1983. Gregory v. Cty. of Louisville, 444 F.3d 725, 738 (6th Cir. 2006). The first, and much broader type of immunity is absolute immunity, which applies to functions that are integral to the adversarial judicial system. Id. Absolute immunity protects an official from liability, even when the official acts with knowledge of a constitutional violation. Id. "The official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question." Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1995). 15
A
prosecutor possesses absolute immunity for the initiation and pursuit of a criminal prosecution, including presentation of the state’s case at trial. Imbler v. Pachtman, 424 U.S. 409 (1976).
Indeed, absolute immunity protects
prosecutors even in cases that arise out of unquestionably illegal or improper conduct, so long as the general nature of the action in question is part of the normal duties of a prosecutor. Hatchett v. Cty. of Detroit, 495 Fed. App’x. 567 (6th Cir. 2012). Nevertheless, not all of a prosecutor’s actions are protected by absolute immunity. Buckley makes clear that absolute immunity only covers allegations of misconduct during trial and preparing for trial, but not misconduct by prosecutors investigating a case. Buckley, 509 U.S. at 273. The line between investigative and trial functions is not always clear, but “[a] prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.” Buckley, 509 U.S. at 274, 113 S.Ct. 2606. Thus, “a prosecutor’s conduct before probable cause exists ordinarily should be classified as investigative work rather than trial preparation, and as such is not covered by absolute immunity." Stinson v. Gauger, 799 F.3d 833, 840 (7th Cir. 2015); see also Greenman v. Jessen, 787 F.3d 882, 890 (8th Cir. 2015)(“[G]iving legal advice to police during an investigation strips a prosecutor of absolute immunity for that act because it is not a normal part of prosecutions.”). Because of the distinction between investigative and prosecutorial functions, absolute immunity is less often granted to non-prosecutors, such as forensic investigators, detectives and police officers. For example, in Stinson, 16
the Seventh Circuit found that forensic odontologists were not entitled to absolute immunity because they were accused "of fabricating their opinions during the investigative phase of the case … before probable cause existed." Stinson, 799 F.3d at 840-41 (emphasis in original).
Nevertheless, the
prosecutorial aspect of testimony results in absolute immunity for police officers testifying before a grand jury -- even if that testimony is perjurious. Rehberg v. Paulk, 132 S.Ct. 1497, 1506, 182 L.Ed.2d 593 (2012); but see Coggins v. Buono, 776 F.3d 108, 112-13 (2d Cir. 2015)(finding that absolute immunity is not automatic when the officer withheld and falsified evidence in addition to committing perjury before the grand jury). B.
Qualified Immunity
The goal of qualified immunity is “to allow officials to carry out discretionary duties without the chilling fear of personal liability.” McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir.2009). Thus, when a government official demonstrates that a particular action was within his or her discretionary functions, the burden shifts to the plaintiff to show: “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011). Absolute immunity will shield prosecutors from most civil claims. Nevertheless, there are some "clearly established" areas of the law to which neither absolute nor qualified immunity will apply. See, e.g., Stinson v. Gauger, 799 F.3d 833, 841-42 (7th Cir. 2015)(fabrication of evidence and use of that 17
evidence
to
convict);
Armstrong
v.
Daily,
786
F.3d
529
(7th
Cir.
2015)(destruction of exculpatory evidence in bad faith); Reitz v. County of Buck, 125 F.3d 139, 146-47 (3d Cir. 1997)(failure to return property after seizure hearing). While law enforcement officers also benefit from qualified immunity, the failure of an officer to disclose material exculpatory evidence violates a defendant’s clearly established due process rights.
See, e.g., Owens v.
Baltimore City Attorney's Office, 767 F.3d 379 (4th Cir. 2014).
Similarly,
fabrication of evidence by police officers violates clearly established rights. Cole v. Carson, 802 F.3d 752, 773-74 (5th Cir. 2015); see also Good v. Curtis, 601 F.3d 393, 398-99 (5th Cir. 2010) ("a police officer's knowing efforts to secure a false identification by fabricating evidence or otherwise unlawfully influencing witnesses is not entitled to qualified immunity.") In contrast, it is not clearly established that a forensic analyst must inform law enforcement of the precise error rate or confidence interval of tests performed during the pre-arrest phase of any investigation. Kennedy v. Peele, 552 Fed. App'x 787, 792-93 (10th Cir. 2014). C.
Heck v. Humphrey
In order to succeed in a claim for wrongful conviction, it is axiomatic that the conviction must truly have been wrongful. Nevertheless, many prisoners attempt to sue for wrongful conviction from jail, thereby challenging the validity of their criminal conviction in a civil action.
With regard to Section 1983
claims, the Supreme Court resolved this dilemma in Heck v. Humphrey: 18
We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a ยง 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. ยง 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under ยง 1983. Thus, when a state prisoner seeks damages in a ยง 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit. Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). As a result of Heck, most civil claims arising from an alleged wrongful conviction will be dismissed unless the plaintiff can demonstrate that the underlying conviction has been invalidated.
Griffin v. Baltimore Police Dept.,
2014 U.S. Dist. LEXIS 70178 (4th Cir. 2015)(Civil Brady claim for withholding exculpatory evidence barred); Lewis v. Mills, 677 F.3d 324, 333 (7th Cir. 2012)(fabrication of evidence); Patrick v. City of Chicago, No. 14-cv-3658, 2015 WL 1880389 (N.D. Ill. Apr. 23, 2015)(Whether a Fifth Amendment coercion of confession claim is Heck-barred is a case-by-case analysis, not a categorical rule. This is commonly known as Heck's "favorable termination" requirement.) Some claims are not barred by Heck, however. Generally, false arrest claims are not barred. See Easterling v. Moeller, 334 Fed. App'x 22, 23 (7th Cir. 2009)(detailing non-Heck-barred false arrest claims in Seventh Circuit); but 19
see Goldston v. City of Monroe, No. 14-30557, 2015 WL 4548832 (5th Cir. Jul. 29, 2015)(facts of wrongful arrest claim implied invalidity of conviction). Additionally, in Skinner v. Switzer the Supreme Court held that a suit to compel DNA testing was cognizable under § 1983, because the testing would not “necessarily” undermine the validity of a prisoner's conviction. 562 U.S. 521, 534, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011). Instead, the results might prove exculpatory, inconclusive, or might further incriminate the prisoner. Id. at 1298.
Similarly, in some excessive force cases, a Section 1983 claim might
survive Heck if the allegation of improper force does not challenge the underlying criminal conviction. See Havens v. Johnson, 783 F.3d 776, 782-84 (10th Cir. 2015)(discussing Heck's application to excessive force claims). D.
Statute of Limitations
The Court in Heck recognized that statute of limitations issues can arise when wrongful convictions are set aside years, and sometimes decades, later.3 Thus, the Court further held that "a § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated." Heck, 512 U.S. at 490, 114 S.Ct. at 2374. Even with that holding, the accrual date for a claim can remain in dispute. For example, in Bradford v. Scherschligt, 803 F.3d 382 (9th Cir. 2015), the plaintiff's conviction was vacated on August 1, 2008 based upon DNA evidence, but he was recharged, tried and ultimately acquitted on
A section 1983 claim is characterized as a personal-injury claim and thus is governed by the applicable state's statute of limitations for personal-injury claims. Cito v. Bridgewater Twp. Police Dep't, 892 F.2d 23, 25 (3d Cir.1989). 3
20
February 10, 2010. He filed suit based upon fabrication of evidence almost three years after acquittal. The defendants moved to dismiss, arguing that his claim accrued on the date of vacatur.
Based upon the unique facts of that
case, the Ninth Circuit held that the claim accrued on the date of acquittal. See also Owens v. City of Baltimore Attorney's Office, 767 F.3d 379 (4th Cir. 2014)(claim does not accrue until proceedings terminate in plaintiff's favor and cannot be revived). Heck's deferred accrual rule only applies to unconstitutional convictions or sentences.
As a result, if a claim does not impugn the underlying
conviction, the claim accrues at the moment of the constitutional violation. Thus, in Wallace v. Kato, the Supreme Court found that a claim for false arrest or false imprisonment accrues at the time the individual is brought before a magistrate or arraigned on charges. 549 U.S. 384, 127 S.Ct. 1091, 166 L.Ed.2d 973; see also Williams v. Trenton Police Dept., 591 Fed. App'x 56, 58 (3d Cir. 2015)(Wallace "held that the Heck rule does not apply to false arrest claims."); but see Panzica v. Corrections Corp. of Amer., 559 Fed. App'x 461, 465 (6th Cir. 2014)(false imprisonment based upon failure to properly calculate good time credits accrues on the date released from prison). Based upon Wallace, many claims for false arrest or false imprisonment are time-barred. E.
Monell Claims Against Governmental Entities
Governmental entities are liable for constitutional violations only if the violation was the result of a municipal policy or practice. Monell v. Department of Social Svcs. 436 U.S. 658, 691 (1978). Frequently, plaintiffs will bring claims 21
against municipalities based upon a "failure to train" on the requirements of Brady v. Maryland. Nevertheless, the existence of a single Brady violation is insufficient to support municipal liability under Section 1983.
Connick v.
Thompson, 563 U.S. 51 (2011). Indeed, to hold a municipality liable for failure to train police officers on Brady, a plaintiff must show that the municipality knew its Brady training for police officers was insufficient yet still made a “deliberate or conscious” choice in the face of such information “to endanger constitutional rights." Truvia Connick, 577 Fed. App'x 317, 326 (5th Cir. 2014). Because successful claims for wrongful conviction are almost always based upon actions of a "rogue" prosecutor or police officer, it is exceedingly difficult to prove a successful Monell claim. Even so, a recent decision from the Second Circuit provides a cautionary tale to municipalities on their obligations for retrieving DNA evidence for defendants. Newton v. City of New York, 779 F.3d 140 (2d Cir. 2015). In Newton, the plaintiff was convicted in 1985 of rape, robbery and assault.
In 1988, he requested DNA testing of the rape kit
involved in the case, but the County Chief Medical Examiner found no testable spermatozoa. In 1994, the plaintiff filed a request in state court for re-testing of the sample based upon technological advances, but the District Attorney's Office claimed that the rape kit was never returned after the 1988 testing. In 1995, the plaintiff filed a habeas corpus petition seeking to have the rape kit re-tested.
Again, the District Attorney's Office claimed that the kit was not
returned.
That Office also secured the testimony of a police sergeant who
explained that a "voucher" describing the location of the rape kit was not in its 22
last listed location and that the kit “must have been destroyed." In 2005, the plaintiff's attorney asked a new Assistant District Attorney to again search for the rape kit. This time, the missing "voucher" and the rape kit were found, and the plaintiff was ultimately exonerated. The Second Circuit found that the plaintiff possessed a Fourteenth Amendment liberty interest in demonstrating his innocence with newly discovered evidence. Newton, 779 F.3d at 146-47. Moreover, the Court found that the State of New York possessed sufficient procedures for protecting that right but that the New York Police Department's evidence management system was so inadequate as to nullify those procedures.
Id. at 151.
The Court
affirmed the trial court's jury instructions that the City could be liable if it directly caused the constitutional violation by a policy, custom or practice, i.e. “a persistent, widespread course of conduct by municipal officials or employees that has become the usual and accepted way of carrying out policy, and has acquired the force of law, even though the municipality has not necessarily formally adopted or announced the custom.� Id. at 152-53. Finally, the Court was careful to distinguish this case from a "failure to preserve evidence" case, which would require a finding of bad faith on the part of the City. "[T]he issue here is whether a municipality may be held liable for its reckless maintenance of a system that made it impossible to retrieve evidence that had been preserved, that State law recognized as particularly significant, and that ultimately exonerated the defendant." Id. at 157-58 (emphasis in original). F.
Lack of Proximate Causation 23
"[C]onstitutional torts, like their common law brethren, require a demonstration of both but-for and proximate causation." Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012).
As a result, civil defendants frequently
argue that independent decisions by prosecutors, grand juries and/or judges break any causal connection to a constitutional violation.
For example, in
Townes v. City of New York, 176 F.3d 138 (2d Cir.1999), the Second Circuit Court found that a police officer's search—even if illegal—was not a proximate cause of the plaintiff's conviction and incarceration because the trial court's independent refusal to suppress the evidence constituted a superseding cause. Townes, 176 F.3d at 146. Similarly, the First Circuit has held that a neutral magistrate's determination that probable cause exists for an individual's arrest is an intervening act that disrupts the argument that the defendant officer caused a continuing unlawful seizure.
See Hernandez-Cueva v. Taylor, 723
F.3d 91, 100 (1st Cir. 2013). This proximate cause argument has limitations. There is no break in the causal chain where a police officer: (1) “lied to or misled the prosecutors”; (2) “failed to disclose exculpatory evidence”; or (3) “unduly pressured the prosecutor to seek the indictment." Evans v. Chalmers, 703 F.3d 636, 647-48 (4th Cir. 2012); accord Bermudez v. City of New York, 790 F.3d 368, 374-75 (2d Cir. 2015). G.
Collateral Estoppel
There is some authority holding that collateral estoppel / issue preclusion will bar a civil rights action based upon illegally-obtained evidence if 24
that evidence was the subject of a suppression hearing in an underlying criminal trial.
Hatchett v. City of Detroit, 495 Fed. App’x. 567 (6th Cir.
2012)(Applying Michigan Law to claim of coerced testimony
based upon
admission after suppression hearing). Largely, this analysis will be determined on a case-by-case basis and will be dependent upon the law of collateral estoppel in the forum state. See Best v. City of Portland, 554 F.3d 698, 701-02 (7th Cir. 2009)(Suppression hearing not given preclusive effect under Indiana law). IV.
Discovery Issues A.
Bad Faith Destruction of Evidence
In DNA exoneration cases, there are often protracted periods of time between conviction, exoneration and civil suit. As a result, there is an inherent danger that DNA evidence can be destroyed over the passage of time. Potentially, the destruction of evidence can violate a criminal defendant's due process rights. In California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), the Supreme Court held that a State violates a defendant's Fourteenth Amendment due process rights when it destroys material exculpatory evidence. To constitute “material exculpatory evidence,” it “must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. at 48889.
25
The vast majority cases involving DNA evidence will not involve DNA evidence which is known (before testing) to be exculpatory. Instead, the value of untested DNA evidence is unknown. In Arizona v. Youngblood, the Supreme Court extended Trombetta to provide that, if the exculpatory value of the evidence is indeterminate and all that can be confirmed is that the evidence was “potentially useful� for the defense, then the defendant must show that the government acted in bad faith in destroying or failing to preserve the evidence. 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). As a result, most claims related to destruction of DNA evidence will require a showing that a government employee acted in "bad faith" to destroy the evidence, rather than according to some established evidence destruction procedure. But see Yarris v. County of Delaware, 465 F.3d 129, 142-43 (6th Cir. 2006)(where detectives "consciously
acted
to
frustrate"
defendant's
access
to
DNA
evidence,
Youngblood's "bad faith" requirement satisfied). B.
Deliberative Process Privilege
Saunders v. City of Chicago, No. 12 C 9158, 2015 WL 4765424 (N.D. Ill. Aug. 12, 2015) provides a comprehensive analysis of discovery issues that can arise in cases involving DNA exonerations. In Saunders, the State's Attorney's Office ("SAO") conducted a reinvestigation after the plaintiffs' convictions were vacated based upon DNA testing. After the SAO nolle prossed the cases, the plaintiffs filed a civil action.
They served discovery requests upon the SAO
seeking information on documents related to the post-vacation reinvestigation of the plaintiffs.
The SAO objected to the discovery requests and primarily 26
relied upon the deliberative process privilege, which the court summarized as follows: “The deliberative process privilege protects communications that are part of the decision-making process of a governmental agency.” U.S. v. Farley, 11 F.3d 1385, 1389 (7th Cir.1993) (citing N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 150–51 (1975)). The privilege “rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance the quality of agency decisions by protecting open and frank discussion among those who make them within the Government.” Department of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8–9 (2001) (internal quotations omitted). In keeping with this stated goal, the deliberative process privilege covers “documents reflecting advisory opinions, recommendations and deliberations comprising part of the process by which governmental decisions and policies are formulated.” Id. at 9. A document will be protected “only if it is ‘predecisional’—generated before the adoption of an agency policy—and ‘deliberative’—and reflective of the give and take of the consultative process.'' Allen v. Chicago Transit Auth., 198 F.R.D. 495, 502 (N.D.Ill.2001). This means that “[c]ommunications made subsequent to an agency decision are ... not ... protected.” Farley, 11 F.3d at 1389. Saunders, 2015 WL 4765424 at *9. The court conducted a comprehensive review of documents produced in camera as well as the arguments raised by the SAO.
Because the privilege
protects only deliberative material and not factual information, "purely factual information must be segregated from deliberative material and produced unless it is inextricably intertwined with the privileged material or would itself reveal 27
the deliberative process." Id. at *10. Ultimately, the court's decision hinged on the fact that the SAO sought to assert the privilege with regard to every document which was part of the reinvestigation.
See id. at *11 (finding the
SAO "has indiscriminately invoked the privilege over all materials from the reinvestigation."). The court found that almost all of the documents which the SAO sought to protect were not covered by the privilege, including investigative reports, summaries of the case, draft pleadings and handwritten notes. Insurance Coverage Considerations Most governmental entities obtain insurance which covers wrongful conviction claims. Coverage for these claims can be found in various types of policies, such as Public Entity Liability Insurance, Public Officials Errors and Omissions Liability Insurance, Law Enforcement Liability Protection, Police Professional Liability Coverage, and Personal Injury Liability Coverage for Police Officers. Because wrongful conviction claims often involve numerous wrongful acts committed by multiple bad actors over the span of many years, the coverage analysis can be quite complex. The starting point for the coverage analysis is whether the alleged wrongful conduct is covered in the first instance. Most public entity liability policies provide coverage for damage or “personal injury” caused by a “wrongful act” or “offense,” terms that are typically defined to encompass most aspects of wrongful conviction claims (subject to certain exclusions).
For example, in
some Public Entity Liability policies, the term “wrongful act” is broadly defined as “any actual or alleged error or misstatement or misleading statement or act 28
or omission or neglect or breach of duty including misfeasance, malfeasance and nonfeasance by you, as a public official or as an employee of yours.” In Law Enforcement Liability policies, the term “wrongful act” has been similarly defined as “an actual or alleged error, misstatement or misleading statement, act or omission, negligent act or breach of duty, while performing law enforcement duties.”
Other public entity policies cover an “offense,” which
usually includes by definition false arrest, false detention, false or improper service of process, false imprisonment, malicious prosecution, violation of civil rights, assault and battery, discrimination, etc. In other policies, the definition of
“personal
injury”
specifically
includes
“false
arrest,
detention
or
imprisonment, or malicious prosecution.” Determining which policy (or policies) apply from a timing standpoint can be complicated in scenarios involving multiple or continuing wrongful acts (arrest,
investigation,
detention,
indictment,
prosecution,
continued
imprisonment) involving multiple bad actors (police officers, investigators, prosecutors,
parole
board)
and
damage/injury
which
arguably
continuously from the time of the arrest to the time of exoneration.
occurs This
trigger-of-coverage issue is one of the most commonly litigated issues in public entity insurance coverage actions concerning wrongful conviction claims. For coverage to exist in the first instance, it is typically the injury or damage that must occur during the policy period.
However, under some
policies, both the injury and wrongful act/offense must occur during the policy period.
An argument to maximize coverage is that the wrongfully accused 29
claimant continuously suffers injury from repeated wrongful acts that occur from the time of arrest through imprisonment to exoneration, and that every insurance policy in effect during that time period is triggered – i.e. a continuous or multiple trigger theory.
However, the majority of courts
addressing the issue have rejected this argument and have instead adopted a single trigger of coverage, which occurs when the wrongfully accused first experiences injury. Under this manifestation/first injury approach, the trigger is the time of the arrest, incarceration, indictment or, at the latest, the conviction. As the Eighth Circuit has explained: [I]n malicious prosecution cases, there is no interval between arrest and injury that would allow an insurance company to terminate coverage. The plaintiff faces incarceration, humiliation and damage to reputation as soon as charges are filed. Perhaps for this reason, no federal or state court has adopted the multiple trigger theory in malicious prosecution cases. Genesis Ins. Co. v. City of Council Bluffs, 677 F.3d 806, 815-16 (8th Cir. 2012) (Rejecting multiple trigger approach and holding that triggering event is when the underlying criminal charges are filed, representing the majority view); Chicago Ins. Co. v. City of Council Bluffs, 713 F.3d 963, 971 (8th Cir. 2012) (same); City of Erie v. Guaranty National Ins. Co., 109 F.3d 156 (3d Cir. 1997) (same); Coregis Ins. Co. v. City of Harrisburg, 2006 U.S. Dist. LEXIS 20340 (M.D. Pa. 2006) (Rejecting multiple trigger theory in civil rights context, noting that
“the
multiple
trigger
theory
has
been
adopted
in
very
limited
circumstances, such as asbestosis, where the injuries caused by exposure do not manifest themselves until a substantial time after the exposure causing the 30
injury.”); Indian Harbour Ins. Co. v. City of Waukegan, 2015 Ill. App. LEXIS 147 (Ill. Ct. App. Mar. 6, 2015) (Holding that coverage for malicious prosecution claim is triggered at the time of arrest not exoneration); North Broward Ins. Co. v. Broward Sheriff’s Office, 428 F. Supp. 2d 1284 (S.D. Fla. 2006) (Adopting the manifestation trigger theory, rejecting argument that the trigger of coverage should continue during the imprisonment and up to the exoneration); Selective Ins. Co. v. City of Paris, 681 F. Supp. 2d 975 (C.D. Ill. 2010) (Adopting manifestation trigger and holding that trigger for malicious prosecution claim is when the claimant is first incarcerated, rejecting date of exoneration as trigger date); Billings v. Commerce Ins. Co., 458 Mass. 194, 936 N.E. 2d 408 (Mass. 2010) (Holding that trigger of coverage for malicious prosecution claim is the filing of the underlying complaint, not the termination of the underlying action); City of Lee’s Summit v. Missouri Public Entity Risk Mgmt., 390 S.W.3d 214 (Miss. Ct. App. 2012) (same). The minority view, while also rejecting the continuous trigger theory, holds that two trigger dates potentially apply - the date of exoneration for allegations of malicious prosecution/wrongful conviction, and the date of arrest for allegations of false arrest/imprisonment.
National Casualty Co. v.
McFatridge, 604 F.3d 335 (7th Cir. 2010); American Safety Cas. Ins. Co. v. City of Waukegan, 678 F. 3d 475 (7th Cir. 2012); Northfield Ins. Co. v. City of Waukegan, 701 F. 3d 1124 (7th Cir. 2012). Notably, both approaches reject the continuous trigger theory - the theory that would maximize the potential coverage available for the insured 31
and exonerated prisoner.
The majority approach, which adopts a single
triggering event that occurs at the time of arrest, incarceration or conviction, is the most restrictive approach in terms of the number of policies that will potentially be available to respond to a wrongful conviction claim. However, the majority approach can be seen as the most logically sound in that the triggered policy will be the one most temporally connected to the alleged wrongful conduct and injury, and it is also consistent with the policy language which focuses on whether the injuries and/or wrongful conduct occurred during the policy period. This is to be contrasted with the minority approach, which triggers the policy in effect at the time of exoneration at a time when the claimant suffers no injury and which often occurs decades after the insured commits the wrongful conduct or offense. As one court aptly explained: Years before the Policy was a glimmer in the [insureds’] collective eye, Messrs. Lee and Townsend were allegedly wrongfully deprived of their liberty and falsely imprisoned – and any alleged malicious prosecution resulted in their imprisonment at that time. Not only would it strain logic to hold that a policy could be applied retroactively to activities undertaken twenty years earlier, but as a matter of public policy, it would be imposing on [the insurer] a risk based on the fortuitous occasion of the date of exoneration as opposed to the date when the damage first manifests itself, i.e., the date of incarceration. While [the insurer] has a duty to defend lawsuits against officers for malicious prosecution or false imprisonment claims occurring during the policy period, it is inconceivable that the calculation of premium that [the insured] paid to [the insurer] in order to purchase the Policy included an analysis of any earlier prosecutions in Broward County and the likelihood of malfeasance over the course of those prosecutions. The better rule…is to consider the time of the arrest and incarceration as the “trigger” in both malicious prosecution and false imprisonment cases. 32
North River Insurance, supra, 428 F. Supp. 2d at 1290.
33