Taylor v. Pima, County of et al

Filing 869

ORDER: IT IS ORDERED, the under-advisement portion of Plaintiff's 397 Motion in Limine to Preclude the Testimony of Holmes is denied to the extent the Court declines to rule on whether Holmes's testimony is admissible under Daubert for th e purpose of proving that the Pioneer Hotel fire was arson. IT IS FURTHER ORDERED withdrawing as an unnecessary ruling the following portion of the Court's Order on Plaintiff's Motion in Limine re: Prior Testimony of Robert Jackson: 566 a t 4:18 to 5:5, including footnotes. IT IS FURTHER ORDERED withdrawing as an unnecessary ruling the following portion of the Court's Order on Plaintiffs Motion in Limine re: Cyrillis Holmes: Doc. 569 at 4:2-13. Plaintiff's 349 Motion for Summary Judgment and Cross-Motion for 371 Summary Judgment are denied. IT IS FURTHER ORDERED, Defendants' (Docs. 332 , 351 ) Motions for Summary Judgment are granted in part and denied in part as reflected in this Order. Parties shall file a Joint Proposed Pretrial order within 30 days of the date this Order is filed. On or before 2/16/24, the parties shall submit a stipulated description of the case and 15 stipulated juror questionnaire questions. Motions in limine and Daubert motions are due on or before 3/4/24. Responses are due on or before 3/18/24. No replies shall be permitted absent leave of Court. (See attached PDF for complete information). Signed by Judge Rosemary Marquez on 1/19/24. (BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Nina Alley,

No. CV-15-00152-TUC-RM
Plaintiff,

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v.

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County of Pima, et al.,

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ORDER

Defendants.

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Pending before the Court are Defendant City of Tucson’s Motion for Summary

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Judgment (Doc. 332), Defendant Pima County’s Motion for Summary Judgment (Doc.

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351), and Plaintiff Nina Alley’s (“Plaintiff” or “Taylor”)1 Motion for Partial Summary

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Judgment (Doc. 349), Cross-Motion for Summary Judgment (Doc. 371), and Motion in

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Limine re: Cyrillis Holmes (Doc. 397).2
I.

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Unless otherwise stated, there is no genuine dispute concerning the following

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facts.4

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Background3

On December 19-20, 1970, a fire killed 28 people at the Pioneer Hotel in

Taylor’s Guardian and Conservator, Nina Alley, has been substituted in place of Taylor
as the named plaintiff in this action. (Doc. 624.) The Court uses the term “Plaintiff”
herein to refer interchangeably to Taylor.
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Other pending motions will be resolved separately. The Court finds that oral argument
is not necessary to resolve the pending summary judgment motions, which are
extensively briefed.
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The record citations herein refer to the docket and page numbers generated by the
Court’s electronic filing system. Where the same evidence appears multiple times on the
docket, the Court cites to only one location and not to duplicates.
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In response to numerous paragraphs of both Pima County’s and the City of Tucson’s
Statements of Facts, Plaintiff asserts a global objection that “many facts are not necessary
. . . or even relevant” and “many factual statements misstate the evidence . . . and provide

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downtown Tucson, Arizona. (Doc. 343 at ¶ 56; Doc. 365 at ¶ 56; Doc. 374 at ¶ 56; see

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also Doc. 338-1 at 52-53.) On March 21, 1972, an all-white jury convicted Louis

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Taylor—who is part African-American and part Hispanic—of 28 counts of murder

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arising from the deaths. (Doc. 340-9 at 10-12; see also Doc. 169 at ¶¶ 5, 15; Doc. 239 at

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¶¶ 5, 15; Doc. 240 at ¶¶ 5, 15; Doc. 339-7 at 135.) Taylor was sentenced to life

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imprisonment.

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Conviction Relief, and the Pima County Attorney’s Office began a review of his case.

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(Doc. 348-3; Doc. 341-4 at 2-15; see also Doc. 335 at ¶¶ 624, 631, 642; Doc. 367 at ¶¶

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624, 631, 642.) Following the review, the Pima County Attorney offered Taylor a plea

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by which Taylor received a time-served sentence and was released from prison in

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exchange for pleading no-contest to the original 28 counts of murder. (Doc. 348-10;

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Doc. 348-11.) After his release, Plaintiff filed the above-entitled civil action, raising

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claims under 42 U.S.C. § 1983.

(Doc. 340-9 at 36-37.)

In 2012, Taylor filed a Petition for Post-

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A. Criminal Trial Proceedings

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The Honorable Charles L. Hardy of the Maricopa County Superior Court presided

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over Taylor’s trial, which began on January 31, 1971, and lasted nearly two months, with

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Public Defender Howard Kashman and Deputy Public Defender William Lane

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representing Taylor, and Deputy County Attorneys Horton Weiss and Carmine Brogna

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representing the prosecution.

(Doc. 337-7 at 52-70, 78.)5 The following is a condensed

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inadmissible editorial and narrative on a document that speaks for itself.” (Doc. 367 at 2;
Doc. 372 at 2.) The Court discusses herein only the evidence that it considers relevant to
the parties’ summary judgment motions. See Sandoval v. Cnty. of San Diego, 985 F.3d
657, 665 (9th Cir. 2021) (“objections for relevance are generally unnecessary on
summary judgment because they are duplicative of the summary judgment standard
itself” (internal quotation marks omitted)). The Court relies on its own review of the
underlying evidence rather than the parties’ characterizations of that evidence.
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Taylor was initially charged as a juvenile in Tucson, Arizona, but his case was
transferred to the Pima County Superior Court and later, at Taylor’s request, to the
Maricopa County Superior Court. (Doc. 336-3 at 165-167, 173; Doc. 341-3 at 20, 22, 26,
36-39.) Prior to transferring Taylor for prosecution as an adult, the juvenile court held a
multi-day evidentiary hearing and found probable cause that Taylor had committed arson
and murder. (Doc. 335-3 at 34-200; Doc. 335-4; Doc. 335-5; Doc. 335-6; Doc. 335-7;
Doc. 335-8; Doc. 335-9 at 1-55; Doc. 341-3 at 36.) The Arizona Court of Appeals
affirmed, In re Anonymous, Juv. Ct. No. 6358-4, 484 P.2d 235 (Ariz. App. 1971), and the
Arizona Supreme Court denied review (Doc. 341-3 at 40). The Pima County Superior
Court also held a multi-day probable cause hearing and found probable cause that Taylor
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summary of the testimony presented during the trial.

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On December 19, 1970, Taylor—who was sixteen years old at the time—woke up

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at around noon and then spent hours meandering in and around downtown Tucson. (Doc.

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339-7 at 84-116.) He walked around his neighborhood, played some games of pool at a

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pool hall downtown, went into the Pioneer Hotel and observed someone setting up tables

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in the ballroom, played ping pong at a recreation center, visited a park, ate supper at his

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house, stopped by an acquaintance’s house, and then returned downtown. (Id. at 84-102.)

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At around 5 p.m., an acquaintance named Frank Armenta was driving through downtown

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Tucson, saw Taylor walking, and stopped to talk. (Doc. 338-6 at 273-74; Doc. 338-7 at

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2-5; Doc. 339-7 at 103-108; Doc. 339-8 at 46.) To “get rid of [Armenta],” Taylor stated

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that he was headed in to work at the Pioneer Hotel, even though Taylor had never been an

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employee or a guest of the hotel. (Doc. 338-7 at 3; Doc. 339-7 at 77, 107-108; Doc. 339-

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8 at 46.) After his encounter with Armenta, Taylor continued wandering in and near

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downtown, visiting acquaintances’ houses, a bar, and a pool hall, and stopping by the

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Greyhound bus station to drink a coke and watch television. (Doc. 339-7 at 108-116.)

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At some point during the evening, Taylor ended up back at the Pioneer Hotel.

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(Doc. 339-7 at 117.) He entered the hotel through the parking lot and went to the

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ballroom, where he watched people dancing and drinking.

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Approximately 300-400 employees of Hughes Aircraft were attending a Christmas party

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in the ballroom that evening. (Doc. 335 at ¶¶ 37-38; Doc. 367 at ¶¶ 37-38; Doc. 338-7 at

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17-18, 30; Doc. 339-3 at 82.) After spending 15-20 minutes watching the Hughes party,

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Taylor went to the men’s restroom and then sat on a bench near a cigarette vending

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machine. (Doc. 339-7 at 121-123.) Sometime between 11:00 and 11:45 p.m., while

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Taylor was sitting on the bench, a Hughes employee named Dingle approached him and

(Id. at 118-121.)

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had committed arson and murder. (Doc. 335-9 at 57-167; Doc. 335-10; Doc. 336-1; Doc.
336-2; Doc. 336-3 at 4-22; Doc. 341-3 at 42-45.) Taylor was represented by Kashman
throughout his criminal proceedings. (See Doc. 341-1 at 185-191.) The prosecution was
initially represented by Deputy County Attorney Fred Belman and Chief Deputy
Attorney David Dingeldine, and later represented by Weiss and Brogna. (See Doc. 335 at
¶¶ 5, 20, 340, 372-373; see, e.g., Doc. 335-2 at 2; 335-9 at 59; Doc. 336-3 at 26; Doc.
337-7 at 78, 187.)
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asked where the cigarette vending machine was. (Doc. 338-7 at 16, 22-23; Doc. 339-7 at

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123-124.) Taylor gave Dingle directions and, after Dingle purchased cigarettes, Taylor

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asked him for one. (Doc. 338-7 at 23-24; Doc. 339-7 at 123-125.) Dingle asked Taylor

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if he needed a light, and Taylor said no, indicating he had a book of matches. (Doc. 338-

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7 at 24.)

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Hotel guests first began to smell and see smoke at around midnight. (See, e.g.,

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Doc. 338-1 at 190-193, 211, 240-242; 291-295; Doc. 339-4 at 180-181.) Taylor testified

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that, after his encounter with Dingle, he observed two women who were checking coats

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for attendees of the Hughes party. (Doc. 339-7 at 127-129.) Taylor further testified that

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he observed a man tell one of the women there was a fire, that he saw the woman pick up

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a phone, and that he then followed the man to the third floor, where he smelled smoke

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and began pounding on doors to tell guests to evacuate. (Id. at 134-137, 147-149.) While

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pounding on doors, he saw flames in a staircase on the north side of the third-floor

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hallway. (Id. at 149-150.) Freda Lampton, who was working in coat check for the

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Hughes party that evening, confirmed that she had received a report of fire; however, she

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testified that Taylor was the individual who reported the fire to her. (Doc. 340-6 at 15-

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21.) Lampton called the hotel’s front desk to relay the report of fire. (Id. at 20-21.)

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Robert Cooper, who was working the front desk that evening, received the first

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call reporting a fire at approximately 12:15 a.m. (Doc. 338-2 at 243.) Cooper informed

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bellman Andy Palm of the reported fire, and Palm went with custodian David Johnson to

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the third floor to investigate. (Doc. 338-2 at 244-246; Doc. 338-7 at 71-72, 78-79; Doc.

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339-1 at 198-199, 202-203, 206-207.) After smelling smoke and seeing fire in the

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staircase, Palm went back downstairs and told Cooper to call the fire department. (Doc.

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338-2 at 249-250, 309; Doc. 339-1 at 207-211; Doc. 339-2 at 2.) At 12:19 a.m., the

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Tucson Fire Department received three overlapping calls reporting the fire, including a

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call from the hotel. (Doc. 338-2 at 253-254; Doc. 338-2 at 345-348; Doc. 338-3 at 3-4.)

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When Palm returned to the lobby to tell Cooper to call the fire department,

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Johnson stayed on the third floor and encountered Taylor staring at the fire in the

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stairwell. (Doc. 338-7 at 84-87; Doc. 339-1 at 211.) Taylor told Johnson to get a fire

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extinguisher. (Doc. 338-7 at 87, 95-96; Doc. 339-7 at 151.) Johnson retrieved an

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extinguisher and used it to put out some of the fire, then went downstairs to look for

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another extinguisher. (Doc. 338-7 at 87-90; Doc. 339-7 at 151-153.) Taylor stayed

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behind and attempted to use a hose from a fire hose cabinet but could not get it to

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function. (Doc. 339-7 at 153-154.) Beverage Manager Giles Scoggins helped Johnson

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find more extinguishers and accompanied him back to the third floor. (Doc. 338-7 at

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230, 232.) At that time, Taylor was standing in the third-floor hallway near the fire hose

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cabinet. (Doc. 338-7 at 92-93; Doc. 338-7 at 224-225, 233-234.) Scoggins testified that

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Taylor told him the fire was started by “two colored boys with afro haircuts” who were

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fighting. (Doc. 338-7 at 236.) Taylor testified that he told Scoggins he had seen two

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boys running. (Doc. 339-7 at 158.) Taylor further testified that he had not, in fact, seen

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two boys running or fighting, nor had he seen anyone start the fire, and he was not sure

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why he lied to Scoggins. (Id. at 158-159.)

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Scoggins managed to get the fire hose to work and used it for a couple minutes

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before hearing an explosion and advising the group that they should leave. (Doc. 338-7

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at 236-238, 242-243; Doc. 339-7 at 159-161.) Taylor testified that he remained on the

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third floor, pounding on doors and telling guests to get out, in English and Spanish.

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(Doc. 339-7 at 161-163.) A man approached him, and Taylor and the man used a fire

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extinguisher on the fire in the staircase. (Id. at 163-166.)6 Taylor then went downstairs

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and outside the hotel, where he saw a police car arrive. (Id. at 167-169.)

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Tucson Police Department (“TPD”) Officers Claus Bergman and William

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Briamonte were the first emergency responders to get to the hotel, arriving moments

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before the first fire truck. (Doc. 340-4 at 125-126; Doc. 340-7 at 96-99.) Taylor testified

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Taylor may have been referring to janitor Glenn Idail, who testified that he went to the
third floor and saw Scoggins and Johnson using a fire extinguisher but did not see anyone
else on the third floor at the time. (Doc. 339-2 at 54-55, 60, 68-69.) After Scoggins and
Johnson left, Idail stayed behind, and Taylor came around the corner to the stairwell with
a fire extinguisher. (Doc. 339-2 at 59-62, 71.) Idail and Taylor used the extinguisher for
a few moments, then Idail went back down to the mezzanine level. (Doc. 339-2 at 62-64,
69.)
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that Officer Bergman asked him to help, and that Taylor accompanied him back into the

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hotel, to the third floor. (Doc. 339-7 at 170-172.)7 For approximately two to three hours,

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Taylor helped evacuate guests from the hotel, intermittently encountering Scoggins, who

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was also helping with the evacuation. (See, e.g., Doc. 338-8 at 3-8, 97-98; Doc. 339-2 at

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189-194, 200-201; Doc. 339-3 at 7-14; Doc. 339-6 at 28-31, 36-37, 40-45; Doc. 339-7 at

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161-163, 173-184.)

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At approximately 2:10 a.m., Scoggins notified TPD Officer Louis Adams that he

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had found Taylor on the third floor trying to put out the fire, and that Taylor had told him

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he had observed two boys start the fire. (Doc. 338-8 at 8-11, 130-132.) Adams and

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Scoggins searched for Taylor inside and outside the hotel. (Doc. 338-8 at 10-11, 18, 132-

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135.) On the third floor, Taylor tapped Adams on the shoulder and told him that there

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were some boys on the upper floors who didn’t belong there. (Doc. 338-8 at 130, 135;

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Doc. 339-7 at 193-194.) Scoggins told Adams that Taylor was the boy they were looking

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for. (Doc. 338-8 at 18, 136.) Adams asked or told Taylor to come outside with him, and

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the two went downstairs. (Doc. 338-8 at 137; Doc. 339-7 at 194-195.) En route, Taylor

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said: “I wanted to leave but the man asked me to help so I did. It is sure bad about all

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those people. It’s terrible somebody—it’s awful that somebody would set a fire like

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that.” (Doc. 338-8 at 138.)

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Outside the hotel, Adams spoke to a police sergeant who told Adams to take

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Taylor to the police station for a statement. (Doc. 338-8 at 140-141.) Adams and Taylor

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walked to Adam’s police vehicle, and Taylor started to get in the back, but Adams told

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him he could sit up front. (Doc. 338-8 at 142; Doc. 339-7 at 198-199; Doc. 339-8 at 2.)

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Adams pat searched Taylor for weapons, then Taylor got in the front passenger seat of

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the car. (Doc. 338-8 at 142-143; Doc. 339-8 at 2-3.) The pair arrived at the police station

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at 2:44 a.m. (Doc. 338-8 at 168-169.) Adams left Taylor with other officers in the coffee

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Bergman testified at the criminal trial that, after he entered the hotel, he saw Taylor
standing on the third floor. (Doc. 340-7 at 104.) He confirmed that Taylor assisted him
with evacuating guests. (Doc. 340-7 at 110-119.) During a deposition taken in the
above-captioned civil case, Bergman testified that he first encountered Taylor outside the
hotel, walking north on Stone Avenue. (Doc. 343-15 at 62.)
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room, went to speak to the desk sergeant, then returned and took Taylor to a briefing

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room. (Doc. 338-8 at 145-147.) Over the next several hours, various officers and

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detectives interrogated Taylor. (See, e.g., Doc. 338-8 at 147-155; Doc. 338-9 at 19-23,

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103-105; Doc. 339-8 at 5-19.) The interrogation was not recorded or transcribed. (Doc.

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338-9 at 79-80.) Even though Taylor was a minor, his mother was not notified. (Doc.

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335-6 at 145-146, 165-166, 192; Doc. 336-4 at 17.) Partway through the interrogation,

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Taylor was read his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). (Doc.

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338-8 at 150-152; Doc. 338-9 at 32-34; Doc. 339-8 at 8-9.)

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At Taylor’s trial, TPD officers testified that Taylor gave numerous conflicting

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statements during his interrogation regarding why he had been at the Pioneer Hotel and

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what he had observed when the fire began. (See, e.g., Doc. 338-8 at 149-154, 170-171,

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215-217; Doc. 338-9 at 25-39, 106-108; Doc. 338-10 at 4.) They further testified that

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Taylor gave conflicting statements regarding whether he had seen individuals on the third

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floor at the time the fire started, in addition to conflicting descriptions of individuals he

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claimed to have seen. (See, e.g., Doc. 338-8 at 150, 217; Doc. 338-9 at 3-5, 27-28; 37-

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38, 107-108; Doc. 338-10 at 5.) During his trial testimony, Taylor admitted he lied at

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times during the interrogation. (Doc. 339-8 at 119.)8

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Sometime between 8:30 and 9:30 a.m., Taylor was formally placed under arrest

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for arson and transported to the Pima County Juvenile Court Center. (Doc. 338-9 at 114-

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116; Doc. 338-10 at 5-6; Doc. 339-8 at 21-22.)9 At the Juvenile Court Center, TPD

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Detective David Smith searched Taylor and found several books of matches. (Doc. 338-

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10 at 9-14; Doc. 339-8 at 23.)

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Two expert witnesses testified during Taylor’s criminal trial, one for the

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prosecution and one for the defense, and both testified that the Pioneer Hotel fire was

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At a deposition taken in the above-captioned case, Taylor explained that he had been
interrogated for hours, was tired, and “just started telling them anything” because he
“wanted to get out of there.” (Doc. 341-2 at 74.)
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Plaintiff disputes the time at which he was arrested, asserting that he was in custody as
soon as he was approached by Adams at the hotel. (Doc. 367 at ¶ 1.) Whether or not
Taylor was in custody earlier for purposes of Miranda, uncontroverted evidence shows
he was formally arrested the morning of December 20, 1970, after his interrogation.
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arson. (Doc. 338-5 at 45-48, 64; Doc. 340-3 at 42-43.) The prosecution’s expert witness,

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Cyrillis Holmes, testified that there were two simultaneous areas of origin on the fourth

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floor of the hotel, with a probable third simultaneous area of origin in the stairwell

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leading from the third to the fourth floor. (Doc. 338-4 at 132-133, 144-146, 160-161;

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Doc. 338-5 at 45-46.) The defense’s expert witness, Marshall Smyth, testified that the

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fire started in one area on the fourth floor with the use of an accelerant. (Doc. 339-8 at

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170-171; Doc. 339-9 at 19-20; Doc. 339-10 at 155-156; Doc. 340-2 at 154; Doc. 340-3 at

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42-43.)

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The prosecution called several

individuals, including Bruce Wallmark

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(“Wallmark”) and Robert Jackson (“Robert”), who claimed to have spoken to Taylor

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about the trial while housed with him in the Juvenile Court Center. Wallmark testified

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that Taylor told him that he and two others had been in the Pioneer Hotel the evening of

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the fire to steal wallets and money from rooms, and that the fire had started from a lit

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book of matches or a lighter that dropped on the carpet as they were running away from a

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hotel employee. (Doc. 338-10 at 57-60, 64-65, 91-92.)10 After the defense rested, the

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prosecution successfully moved to reopen its case-in-chief to present testimony from

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Robert. (Doc. 340-3 at 219-221.) Robert testified that Taylor told him he had started the

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Pioneer Hotel fire by squirting lighter fluid on a wall and lighting it with a match. (Doc.

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340-3 at 222-224, 228-230; Doc. 340-4 at 7, 27.) Taylor admitted during his trial

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testimony that he had come into contact with Wallmark and Robert at the Juvenile Court

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Center, but he denied telling Wallmark that he saw the fire start and denied telling anyone

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that he had started the fire. (Doc. 339-8 at 27-32.)

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B. Post-Trial Proceedings

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For over a decade after his convictions, Taylor unsuccessfully sought relief in state

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and federal court.

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discovered evidence of witness recantations. (See Doc. 341-5 at 98-99, 101-102.) On

In April 1972, Taylor moved for a new trial based on newly

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Wallmark fled before the defense finished its cross-examination of him. (Doc. 338-10
at 99-101.) However, he was later apprehended, and the defense was able to conclude the
cross-examination. (Doc. 338-10 at 184-190.)
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May 12, 1972, Robert made a recorded but unsworn statement averring that his trial

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testimony was false, and that Taylor had told him he did not start the Pioneer Hotel fire.

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(Doc. 347-8 at 6-7, 17.) Robert stated that the only thing Taylor told him about the fire

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was that Taylor was at a party at the hotel when the fire broke out and that he helped

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people get out of the hotel. (Id. at 3, 17-18.) Robert further stated that TPD officers

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threatened him with criminal charges if he did not provide inculpatory testimony against

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Taylor; that Weiss and Pima County investigator Rex Angeley told him what to say on

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the stand; that Angeley knew he was lying during his testimony; and that Angeley later

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threatened him with criminal charges if he did not sign a statement affirming his trial

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testimony. (Id. at 4-14, 27-28.) The trial court held a hearing on May 18, 1972, during

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which Robert took the stand and affirmed his trial testimony. (Doc. 340-9 at 118-119,

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156.) The trial court denied Taylor’s motion for new trial. (Id. at 193.)

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On August 30, 1972, Robert’s brother, Albert Jackson (“Albert”), signed a

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notarized affidavit in which he stated that officers from TPD and the Pima County

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Attorney’s Office coerced Wallmark and Robert to testify against Taylor by threatening

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to imprison them. (Doc. 347-7 at 1-3.) Albert stated that Angeley and TPD Detective

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Lawrence Hust threatened him and Robert with criminal charges, called them “n****r

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lovers,” and said they would ensure they had a “n****r for a daddy” in prison. (Id. at 2.)

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Taylor unsuccessfully moved for a new trial based on Albert’s affidavit. (Doc. 342-3 at

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23-30.)

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Taylor filed a direct appeal, raising numerous allegations of error, and the Arizona

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Supreme Court affirmed. Arizona v. Taylor, 537 P.2d 938 (Ariz. 1975). In relevant part,

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the Arizona Supreme Court rejected Taylor’s claims (1) that the prosecution’s witness

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lists, which contained the names of 250 to 650 people, denied Taylor due process; (2) that

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the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963); (3) that Weiss’s

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numerous objections denied Taylor a fair trial; (4) that there was insufficient evidence to

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support the jury’s verdict; (5) that the trial court erred in permitting the prosecution’s

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expert witness to testify regarding the origin and cause of the fire; (6) that police officers

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violated Miranda when questioning Taylor; (7) that Taylor’s statements to police officers

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were involuntary; (8) that the trial court abused its discretion in allowing the prosecution

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to re-open its case-in-chief to present Robert’s testimony; and (9) that the trial court

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abused its discretion in denying Taylor’s motion for a new trial. Taylor, 537 P.2d at 947-

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54. The United States Supreme Court denied Taylor’s petition for a writ of certiorari.

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Taylor v. Arizona, 424 U.S. 921 (1976).

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Taylor then filed a petition for a writ of habeas corpus in the United States District

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Court for the District of Arizona, arguing, in relevant part, that he was unconstitutionally

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interrogated on December 20, 1970, and that Weiss engaged in misconduct by (1)

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causing witnesses to commit perjury; (2) submitting overly lengthy witness lists; (3)

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violating Brady through incomplete disclosure; (4) raising numerous meritless objections

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and interruptions during trial; and (5) tampering with witness Robert and allowing his

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perjured testimony to stand. (Doc. 341-5 at 73-76.) The district court denied habeas

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relief. (Id. at 72-77.) The Ninth Circuit Court of Appeals vacated and remanded for an

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evidentiary hearing on the voluntariness of the statements Taylor made during his

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December 20, 1970 interrogation. Taylor v. Cardwell, 579 F.2d 1380 (9th Cir. 1978).

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On remand, the district court held an evidentiary hearing and ruled that Taylor’s

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statements to law enforcement were voluntary. (Doc. 342-4 at 126-132.) The Ninth

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Circuit reversed, finding that Taylor had been seized before the police had obtained

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probable cause to arrest him, and that the statements Taylor made during his interrogation

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should have been excluded as the product of an illegal detention. (Doc. 341-5 at 79-81.)

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The United States Supreme Court granted certiorari, reversed, and remanded for the

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Ninth Circuit to review the district court’s decision on whether Taylor’s statements were

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voluntary under the Fifth Amendment. Cardwell v. Taylor, 461 U.S. 571 (1983) (per

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curiam). On remand, the Ninth Circuit affirmed the district court’s finding that Taylor’s

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statements were voluntary. (Doc. 342-4 at 134-140.)

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On December 31, 1984, Taylor filed a state-court Petition for Post-Conviction

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Relief, arguing that the statements he made to law enforcement during his interrogation

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on December 20, 1970, should have been suppressed as the fruit of an illegal detention.

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(Doc. 342-5 at 2-18.) The trial court denied the Petition on May 1, 1985, and the Arizona

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Supreme Court denied review. (Doc. 342-5 at 20, 22.)

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C. 2012-13 Post-Conviction Relief Proceedings

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Taylor filed a second Petition for Post-Conviction Relief on October 23, 2012,

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arguing in relevant part: (1) that, in light of new developments in fire science, the Pioneer

7

Hotel fire cannot be classified as arson; and (2) that Taylor’s constitutional rights were

8

violated by prosecutorial misconduct—including the suppression of a report by Truesdail

9

Laboratories (the “Truesdail Report”) finding no evidence of accelerants in debris

10

samples taken from the hotel, an ex parte conversation between Weiss and the trial judge,

11

contact between Angeley and a dismissed juror, abusively inflated witness lists, and

12

Weiss’s baseless objections during trial. (Doc. 348-3.) The Petition relied on a 2008

13

report by a group of fire experts known as the Arson Review Committee (“ARC

14

Report”), which concluded that the Pioneer Hotel fire cannot be classified as arson.

15

(Doc. 348-2.) The ARC Report criticized Holmes’s opinions regarding the origins of the

16

fire, in part because Holmes relied on improper depth-of-char measurements made with

17

an uncalibrated, sharp pocketknife. (Id. at 11-12.)

18

Deputy Pima County Attorney Rick Unklesbay and arson prosecutor Malena

19

Acosta reviewed Taylor’s Petition for Post-Conviction Relief and, as part of that review,

20

asked the Tucson Fire Department to conduct another investigation into the Pioneer Hotel

21

fire. (Doc. 335 at ¶¶ 624, 631, 642; Doc. 367 at ¶¶ 624, 631, 642.) After completion of

22

the investigation, Wayne Cummings of the Tucson Fire Department concluded that the

23

cause of the Pioneer Hotel fire cannot be determined due to the lack of an exact point of

24

origin determination, the lack of elimination of all accidental fire causes, and flashover

25

conditions that occurred on the fourth floor of the hotel. (Doc. 348-4.)

26

The parties deposed Smyth and Holmes in connection with the Petition for Post-

27

Conviction Relief. Smyth testified at his deposition on September 21, 2012, that his

28

opinion regarding the cause of the Pioneer Hotel fire had changed, that he now felt the

- 11 -

1

cause of the fire should be identified as undetermined, and that there was no evidence the

2

fire was incendiary. (Doc. 341-1 at 29-32.) He further testified that Holmes’s opinions

3

were unreliable because Holmes used an uncalibrated, sharp pocketknife to measure

4

depth of char and because a portion of the fourth floor had reached flashover—a

5

phenomenon not recognized at the time of Taylor’s trial—which rendered depth-of-char

6

measurements misleading. (Id. at 58-59, 64, 71-74.)

7

At a November 1, 2012 deposition, Holmes affirmed his prior opinions that the

8

Pioneer Hotel fire was arson and that it had two areas of origin on the fourth floor, with a

9

potential third area of origin on the stairwell between the third and fourth floors. (Doc.

10

340-10 at 54-55.) In addition, Holmes testified that when he was in Tucson during his

11

investigation of the fire in 1970, he informed the city council, fire chief, police chief, and

12

other interested parties of his opinions regarding the type of person he believed may have

13

started the fire, specifically, that he felt the culprit “was probably black and that he was

14

probably 18.” (Id. at 83-85.) He testified that he believed the culprit was probably black

15

because “blacks at that point, their background was the use of fire for beneficial purposes.

16

In other words, they were used to clearing lands and doing cleanup work and things like

17

that and fire was a tool. So it was just a tool for them. . . . And if they get mad at

18

somebody, the first thing they do is use something they’re comfortable with, fire was one

19

of them.” (Id. at 86-87.)

20

Unklesbay and Acosta aver in affidavits prepared for the above-captioned case

21

that they continued to believe in Taylor’s guilt after conducting their review of Taylor’s

22

Petition for Post-Conviction Relief. (Doc. 341-4 at 4, 13.) Nevertheless, the Pima

23

County Attorney offered Taylor a no-contest plea in which Taylor would be convicted of

24

the original 28 counts of murder and sentenced to time-served. (Doc. 348-10.) Taylor

25

accepted the plea because he did not want to spend any more time in prison. (Doc. 341-2

26

at 223-224.)11

27

11

28

This fact comes from Taylor’s testimony at a September 30, 2021 deposition taken in
the above-captioned case. Taylor’s testimony regarding his motivations for taking the
plea is undisputed, although a reasonable juror could find based on the record evidence
that Taylor had additional, strategic reasons for accepting the plea—e.g., uncertainty
- 12 -

1

On April 1, 2013, Unklesbay filed a memorandum setting forth the factual basis

2

for the no-contest plea. (Doc. 344-2.) The memorandum discussed Taylor’s presence

3

near the fire shortly after it began, the inconsistent statements Taylor gave to law

4

enforcement, the matchbooks found on his person, the expert testimony of Holmes and

5

Smyth, the trial testimony of Wallmark and Jackson, Jackson’s later recantation, the ARC

6

report, the Tucson Fire Department’s report, and Holmes’s deposition testimony

7

affirming his opinion that the fire was arson. (Id. at 3-9.) The memorandum stated that,

8

if “a review of the original evidence using new advances and techniques in fire

9

investigation” were found to constitute newly discovered evidence for purposes of post-

10

conviction relief, “the State would be unable to proceed with a retrial, and the convictions

11

would not stand.” (Id. at 9.)

12

The Honorable Richard S. Fields of the Pima County Superior Court held a change

13

of plea hearing on April 2, 2013. (Doc. 348-11.) During the hearing, Unklesbay stated

14

that, if the Court found that the ARC Report and Tucson Fire Department report

15

constituted newly discovered evidence, “the State would be unable to proceed to a new

16

trial given the passage of time, the destruction of evidence, and the death of many of the

17

witnesses who testified.” (Id. at 21.) Based on the parties’ stipulation, Judge Fields

18

found sufficient newly discovered evidence to grant a new trial, with the practical effect

19

of vacating Taylor’s 1972 convictions. (Id. at 5; Doc. 343 at ¶ 170; Doc. 374 at ¶ 170.)

20

Taylor then pled no contest to 28 counts of murder for a sentence of time-served, and he

21

was released from prison that same day, after approximately 42 years of incarceration.

22

(Doc. 348-10; Doc. 348-11 at 15-25; Doc. 335 at ¶¶ 705, 707; Doc. 367 at ¶¶ 705, 707.)

23

D. Civil Litigation

24

Plaintiff initiated the above-entitled action in Pima County Superior Court, raising

25

claims under 42 U.S.C. § 1983 related to his 1972 convictions. (Doc. 1.) Defendant City

26

of Tucson removed the case to federal court, and Defendants moved for dismissal. (Id.;

27
28

regarding whether advancements in fire science constituted newly discovered evidence
meriting post-conviction relief. (See, e.g., Doc. 374 at ¶ 149.)
- 13 -

1

Docs. 5, 6, 54, 55.) On March 16, 2017, this Court ruled that—due to his outstanding

2

2013 convictions—Plaintiff is barred by Heck v. Humphrey, 512 U.S. 477 (1994), from

3

premising his § 1983 claims “on the alleged constitutional injuries of being wrongfully

4

charged, convicted, and imprisoned” and that Plaintiff was precluded from seeking

5

incarceration-based compensatory damages.

6

further held that the interplay between Heck and the statute of limitations sharply limited

7

Plaintiff’s claims.

8

limitations bars Plaintiff from premising his claims on allegations that he was arrested

9

without probable cause or that he was unlawfully interrogated. (Id. at 11-12.) The Court

10

found that neither Heck nor the statute of limitations bars Plaintiff from premising his

11

claims on allegations that “Plaintiff’s rights to due process and a constitutionally fair,

12

racially unbiased trial were violated during his original trial proceedings by the non-

13

disclosure of the Truesdail Report, the hiring of an expert who believed Plaintiff was

14

guilty because ‘black boys’ are more likely to start fires, and the presentation of false

15

testimony from two ‘jailhouse snitches.’”

16

interlocutory appeal the issue of whether Heck bars Plaintiff from seeking incarceration-

17

related damages, expressing concern that, if “the Pima County Attorney’s Office required

18

Plaintiff to accept a no-contest plea for the purpose of creating a Heck bar to § 1983

19

liability, . . . such conduct undermines the fairness and integrity of the justice system.”

20

(Doc. 81 at 10-11.)12

(Id. at 13-17.)

(Doc. 63 at 10-11, 19-20.)

The Court

Specifically, the Court found that the statute of

(Id. at 16.)

The Court certified for

21

On interlocutory appeal, the Ninth Circuit Court of Appeals affirmed this Court’s

22

finding that Heck bars Plaintiff from seeking incarceration-related damages, holding that

23

“[a] plaintiff in a § 1983 action may not recover incarceration-related damages for any

24

period of incarceration supported by a valid, unchallenged conviction and sentence.”

25

Taylor v. Pima Cnty., 913 F.3d 930, 936 (9th Cir. 2019). The Honorable Mary M.

26
12

27
28

This Court also certified for interlocutory appeal the issue of whether Pima County is
entitled to Eleventh Amendment immunity. (Doc. 81 at 11.) The Ninth Circuit declined
to permit an interlocutory appeal of that issue under 28 U.S.C. § 1292 and found it lacked
jurisdiction under the collateral-order doctrine of 28 U.S.C. § 1291. Taylor v. Pima
Cnty., 913 F.3d 930, 933-34 (2019).
- 14 -

1

Schroeder dissented, finding that the “law is not” so “unjust” as to require “the

2

admittedly unfair holding” that Taylor’s 2013 plea “somehow validates or justifies the

3

original sentence that deprived [him] of a meaningful life.” Taylor v. Pima Cnty., 913

4

F.3d 930, 939 (9th Cir. 2019) (Schroeder, J., dissenting).

5

petitioned the United States Supreme Court for a writ of certiorari. (Docs. 98, 100.)

Plaintiff unsuccessfully

6

Plaintiff then moved for leave to amend his operative complaint to include a

7

request for a declaratory judgment expunging his 2013 convictions “as unconstitutional,

8

and thus invalid.” (Doc. 103; see also Doc. 169 at 26.) The Court granted Plaintiff leave

9

to file the now-operative Third Amended Complaint (“TAC”), determining that

10

“Plaintiff’s factual allegations concerning his 2013 post-conviction proceedings are

11

sufficient to raise an inference that this case may be one of the ‘unusual or extreme cases’

12

in which expungement” is appropriate under Shipp v. Todd, 568 F.2d 133 (9th Cir. 1978)

13

(per curiam). (Doc. 167 at 8.) The Court later granted the City of Tucson’s Motion to

14

Dismiss Counts Six and Seven of the TAC but denied Pima County’s Motion to Dismiss

15

the TAC’s request for declaratory judgment. (Doc. 227.)13

16

The remaining claims in this action are the 42 U.S.C. § 1983 claims alleged in

17

Counts One through Five of Plaintiff’s TAC, as well as Plaintiff’s request for declaratory

18

relief. (Doc. 169 at 11-24.) Count One raises a claim against the City of Tucson based

19

on a custom and practice of racial discrimination. (Id. at 11-16.) Count Two raises a

20

similar claim against Pima County (id. at 16-18), but Plaintiff has abandoned Count Two

21

at the summary judgment stage (Doc. 367 ¶¶ 714, 716-717). Count Three alleges that

22

Pima County failed to properly train and supervise Deputy County Attorneys. (Doc. 169

23

at 18-19.) Count Four alleges that Pima County failed to terminate Weiss’s employment

24

based on a custom of deliberate indifference to prosecutorial misconduct. (Id. at 19-20.)

25

Count Five raises a claim of civil conspiracy against Pima County and the City of

26

Tucson, alleging that co-conspirators improperly arrested, charged, and prosecuted

27

Plaintiff; deliberately withheld exculpatory evidence, and suborned false testimony from

28

13

Plaintiff later filed a Supplemental TAC (Doc. 251), but the Court granted Defendants’
Joint Motion to Dismiss the Supplemental TAC (Doc. 300).
- 15 -

1

Wallmark and Jackson. (Id. at 21-24.) Plaintiff alleges that, as a result of the conduct

2

described in each of the above counts, he was wrongly charged in 1970 with multiple

3

counts of homicide, wrongly convicted of those crimes in 1972, and wrongly imprisoned

4

for 42 years. (Id. at 15-17, 19-20, 24.)

5

II.

Motions for Summary Judgment and Motions in Limine

6

Pima County and the City of Tucson seek summary judgment in their favor on all

7

of Plaintiff’s claims. (Docs. 332, 351.) Defendants argue that the statute of limitations

8

bars any claims premised on Plaintiff’s arrest and interrogation; that Plaintiff’s claims are

9

Heck-barred and barred by the doctrine of issue preclusion; that Plaintiff cannot establish

10

any underlying violations of his constitutional rights; and that Plaintiff cannot establish

11

municipal liability under 42 U.S.C. § 1983. (Docs. 332, 351.) Pima County further

12

argues that it is entitled to Eleventh Amendment and/or prosecutorial immunity, that the

13

policies and practices of the Pima County Attorney’s Office relating to criminal

14

prosecution are the policies and practices of the State of Arizona rather than Pima

15

County; that Plaintiff’s 2013 plea agreement was constitutional and cannot be expunged;

16

and that Plaintiff cannot prove any non-incarceration-based damages. (Doc. 351 at 21,

17

25-28; see also id. at 18 n.6.)

18

Plaintiff seeks partial summary judgment on discrete issues, asking the Court to

19

rule that his 1972 and 2013 convictions are unconstitutional and void, that the Pioneer

20

Hotel fire was not arson, that he was arrested without probable cause, and that his

21

Miranda rights were violated. (Docs. 349, 371.) Plaintiff argues that his December 20,

22

1970 statements to law enforcement are inadmissible because the statements were

23

involuntary and obtained in violation of Miranda. (Doc. 349 at 25-28.) Plaintiff also

24

argues that the prosecution violated Brady and Giglio v. United States, 405 U.S. 150

25

(1972), during his 1972 criminal trial by withholding (1) the Truesdail Report; (2)

26

evidence of other arson suspects and other fires at the Pioneer Hotel; (3) evidence that

27

Holmes’s opinions were informed by racism; (4) exculpatory testimony from Bergman;

28

and (5) non-prosecution deals with Robert and Wallmark. (Id. at 1-12.) Plaintiff argues

- 16 -

1

the effect of the prosecution’s disclosure violations was exacerbated by other improper

2

prosecutorial conduct, including the prosecution’s ex parte contact with the trial judge

3

and with dismissed jurors, Weiss’s overly lengthy witness lists, and Weiss’s numerous

4

objections and interruptions during trial. (Id. at 12-16.) Plaintiff argues that the Court

5

should dismiss Taylor’s criminal charges due to prosecutorial misconduct and that the

6

double jeopardy clause of the Arizona Constitution nullifies his 2013 plea agreement and

7

bars further prosecution. (Id. at 16-20.) Alternatively, Plaintiff argues that this Court

8

should expunge his 2013 convictions pursuant to Shipp, because Pima County forced

9

Taylor to enter a no-contest plea even though it lacked sufficient evidence to convict him.

10

(Id. at 20-25.)

11

After the parties’ summary judgment motions were fully briefed, the Court re-

12

opened discovery for limited purposes and allowed the parties to submit supplemental

13

summary judgment briefs. (Doc. 444; Doc. 680; Doc. 775.) Some of the parties’

14

supplemental briefs are sealed and will be addressed in a separate, sealed Order. In the

15

publicly filed supplemental briefs, the parties address the September 15, 2023 deposition

16

of former Deputy County Attorney Jack Chin and the September 26, 2023 deposition of

17

current Pima County Attorney Laura Conover. (Docs. 816, 833, 837.) The depositions

18

and supplemental briefs concern an additional review of Taylor’s case that the Pima

19

County Attorney undertook in 2021-2022. (See Doc. 810-1; Doc. 810-2.) Chin headed

20

the review and drafted a motion to exonerate Taylor pursuant to Rule 24.2 of the Arizona

21

Rules of Criminal Procedure. (Doc. 810-2 at 19; Doc. 810-3.) Conover initially agreed

22

with the motion and planned to file it, but then changed her mind. (Doc. 810-1 at 17-20;

23

Doc. 810-2 at 19, 22.) The parties dispute whether the depositions of Conover and Chin,

24

and related evidence concerning the 2021-2022 review, support Plaintiff’s claim for

25

declaratory relief expunging his 2013 convictions. (Docs. 816, 833, 837.)

26

A. Motions in Limine

27

The parties filed Motions in Limine in conjunction with their Motions for

28

Summary Judgment. (Docs. 350, 377, 395, 396, 397.) Pima County moved to exclude

- 17 -

1

the testimony of Plaintiff’s expert witness Andrew Pacheco (Doc. 350), and Plaintiff

2

moved to exclude the testimony of Robert and Holmes and to limit the testimony of

3

Unklesbay and Acosta (Docs. 377, 395, 396, 397). The Court resolved portions of the

4

Motions and took other portions under advisement. (Doc. 566, 567, 568, 569.)

5

The Court found the majority of Pacheco’s opinions to be inadmissible but found

6

that Pacheco could permissibly opine (1) “that any prosecutor’s office with which he is

7

familiar would immediately note and act upon a published appellate opinion criticizing a

8

prosecutor by name”; (2) “that it is improper for a prosecutor to require a defendant to

9

plead no contest when the prosecutor knows guilt cannot be proven beyond a reasonable

10

doubt”; that former Pima County Attorney Barbara LaWall “improperly instructed

11

Unklesbay regarding the scope of his review” of Taylor’s 2012 Petition for Post-

12

Conviction Relief; and (4) “that any experienced prosecutor would understand that an

13

exonerated defendant poses a greater risk of financial exposure to the prosecutor’s office

14

than a convicted felon.” (Doc. 567 at 8.)

15

The Court found Robert’s prior testimony admissible under Federal Rule of

16

Evidence 804(b)(1). (Doc. 566 at 4-5.) The Court rejected Plaintiff’s Sixth Amendment

17

Confrontation Clause challenges to the testimony of Robert and Holmes. (Doc. 566 at 5

18

n.5; Doc. 569 at 4.) The Court found that the written report requirement of Federal Rule

19

of Civil Procedure 26(a)(2)(b) is inapplicable to the testimony of Unklesbay, Acosta, and

20

Holmes. (Doc. 568 at 7-8; Doc. 569 at 4-5.) The Court found that Unklesbay and Acosta

21

may not opine that the Pioneer Hotel fire was arson, that Holmes is credible, or that the

22

authors of the ARC report are not credible, but that they may testify to their personal

23

assessment of Taylor’s 2012 Petition for Post-Conviction Relief and how that assessment

24

informed their decision to offer Taylor a no-contest plea. (Doc. 568 at 8.) Further, the

25

Court found that Unklesbay and Acosta may testify as to whether or not they considered

26

Pima County’s financial interests in offering the no-contest plea. (Id.) The Court took

27

under advisement the issues of whether Unklesbay and Acosta’s affidavits should be

28

rejected as shams, and whether Holmes’s testimony that the Pioneer Hotel fire was arson

- 18 -

1

must be excluded under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

2

(1993). (Doc. 568 at 7; Doc. 569 at 5.)

3

The Court addresses below the parties’ arguments regarding whether Unklesbay

4

and Acosta’s affidavits should be disregarded as shams. The Court declines to rule on

5

whether Holmes’s testimony is admissible under Daubert to support a finding that the

6

Pioneer Hotel fire was arson, because the cause of the fire and Taylor’s guilt or innocence

7

are not directly at issue in this case, as explained further below.

8

withdraws the portions of its prior Orders addressing the admissibility of Robert’s

9

testimony under Federal Rule of Evidence 804(b)(1) and addressing Plaintiff’s Sixth

10

Amendment Confrontation Clause challenges to the testimony of Robert and Holmes.

11

Those rulings were unnecessary, as there will be no need for the parties to present the

12

testimony of Robert and Holmes at trial for the purpose of proving that the Pioneer Hotel

13

fire was arson or that Taylor started the fire.14

14

B. Summary Judgment Standard

The Court also

15

A court must grant summary judgment “if the movant shows that there is no

16

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

17

of law.” Fed. R. Civ. P. 56(a). The movant bears the initial responsibility of presenting

18

the basis for its motion and identifying those portions of the record, together with

19

affidavits, if any, that it believes demonstrate the absence of a genuine issue of material

20

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant fails to carry its

21

initial burden of production, the nonmovant need not produce anything. Nissan Fire &

22

Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if the movant

23
14

24
25
26
27
28

The parties may present the prior testimony of Robert and Holmes at the trial in the
above-captioned matter to the extent the testimony is relevant to Plaintiff’s claims in this
case, but for that purpose, the parties need only offer the testimony to show that it was
presented during Taylor’s criminal trial; offering the testimony in the trial in this matter
to prove the truth of the matters asserted therein will not be necessary. Plaintiff may
argue that the testimony would have been inadmissible had his 2012 Petition for PostConviction Relief resulted in a new trial. However, to the extent Plaintiff is seeking
damages based on new Sixth Amendment claims that are not alleged in his TAC, the
Court precludes him from raising those new claims at the summary judgment stage. See
Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292 (9th Cir. 2000) (a plaintiff cannot
raise an entirely new theory of liability at the summary judgment stage).
- 19 -

1

meets its initial responsibility, the burden shifts to the nonmovant to demonstrate the

2

existence of a factual dispute and to show (1) that the fact in contention is material, i.e., a

3

fact “that might affect the outcome of the suit under the governing law,” and (2) that the

4

dispute is genuine, i.e., “the evidence is such that a reasonable jury could return a verdict

5

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986);

6

see also Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995).

7

At summary judgment, the judge’s function is not “to weigh the evidence and

8

determine the truth of the matter but to determine whether there is a genuine issue for

9

trial.” Anderson, 477 U.S. at 249. In evaluating a motion for summary judgment, the

10

court must “draw all reasonable inferences from the evidence” in favor of the non-

11

movant. O’Connor v. Boeing N. Am., Inc., 311 F.3d 1139, 1150 (9th Cir. 2002). If “the

12

evidence yields conflicting inferences, summary judgment is improper, and the action

13

must proceed to trial.” Id. “The court need consider only the cited materials, but it may

14

consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).

15

At the summary judgment stage, the Court focuses on the admissibility of the

16

contents of evidence rather than the admissibility of the evidence’s form. Sandoval v.

17

Cnty. of San Diego, 985 F.3d 657, 665 (9th Cir. 2021). “If the contents of a document

18

can be presented in a form that would be admissible at trial—for example, through live

19

testimony by the author of the document—the mere fact that the document itself might be

20

excludable hearsay provides no basis for refusing to consider it on summary judgment.”

21

Id.

22

C. Claim for Declaratory Relief Expunging 2013 Convictions

23

In Shipp, the Ninth Circuit reversed the dismissal of a case brought under 42

24

U.S.C. § 1983 in which the plaintiff sought to have his state conviction declared “invalid

25

on federal constitutional grounds” and expunged, holding that “federal courts have

26

inherent power to expunge criminal records when necessary to preserve basic legal

27

rights,” although this power “should be reserved for unusual or extreme cases.” 568 F.2d

28

at 133-34 & 134 n.1. In granting Plaintiff leave to amend his operative complaint to

- 20 -

1

include a request for a declaratory judgment expunging his 2013 convictions, this Court

2

found that the above-captioned case may be one of the “unusual or extreme cases” in

3

which expungement under Shipp is appropriate, because Plaintiff’s factual allegations

4

concerning his 2013 post-conviction proceedings raise “a reasonable inference that the

5

Pima County Attorney leveraged Plaintiff’s incarceration on an existing sentence in order

6

to coerce him into pleading no-contest to charges unprovable at a re-trial, potentially for

7

the purpose of avoiding a civil damages judgment for wrongful conviction.” (Doc. 227 at

8

6; see also Doc. 167 at 8.)

9

In his Motion for Partial Summary Judgment, Taylor argues that this Court should

10

expunge his 2013 convictions under Shipp because the Pima County Attorney violated

11

his due process rights by forcing him to plead no contest to charges it could not prove

12

beyond a reasonable doubt at a retrial. (Doc. 349 at 20-25.)15 Pima County argues that it

13

is entitled to summary judgment in its favor on Plaintiff’s claim for declaratory relief

14

because there is no evidence that Taylor’s 2013 plea agreement was involuntary or that

15

the Pima County Attorney’s Office extended the plea for purposes of shielding Pima

16

County from civil liability. (Doc. 351 at 25-28; Doc. 373 at 12-15.)16

17

Pima County relies on the affidavits of Unklesbay and Acosta, who aver that after

18

conducting a review of Taylor’s 2012 Petition for Post-Conviction Relief, they continued

19

to believe in Taylor’s guilt and were prepared to retry him if necessary but instead

20

offered him a no-contest plea in order to avoid the risk of a retrial while maintaining the

21

integrity of the convictions. (Doc. 341-4 at 3-4, 6, 12-14.) The affidavits of Unklesbay

22

and Acosta are contradicted by the memorandum that Unklesbay filed with the court in

23

15

24
25
26
27
28

Plaintiff also argues that this Court should vacate his 2013 convictions because
prosecutorial misconduct during his 1972 trial violated his constitutional rights. (Doc.
349 at 16-19.) However, this is not the theory on which Plaintiff obtained leave to amend
his operative complaint, and the cases that Plaintiff relies on involved the dismissal of
federal criminal charges in the underlying federal criminal case and thus are clearly
distinguishable from the situation at issue here.
16
Pima County also argues there is no evidence that it had a policy or practice of
inducing unconstitutional plea agreements. (Doc. 351 at 28.) However, Plaintiff is not
seeking damages based on the 2013 convictions pursuant to Monell v. Department of
Social Services of New York City, 436 U.S. 658 (1978); rather, he is seeking
expungement pursuant to Shipp, and Pima County has not shown that proof of a policy or
practice is required or relevant under the Shipp inquiry.
- 21 -

1

support of Taylor’s 2013 no-contest plea.

2

Unklesbay averred that, if a new trial were ordered, “the State would be unable to

3

proceed with a retrial, and the convictions would not stand.” (Doc. 344-2 at 9.) At

4

Taylor’s change-of-plea hearing, Unklesbay again averred to the court that the

5

prosecution would be unable to proceed with a retrial. (Doc. 348-11 at 21.) Unklesbay

6

now states in his affidavit that his prior statement to the court regarding the prosecution’s

7

inability to proceed with a retrial was “inartful.”

8

Unklesbay and Acosta could have, and were prepared to, retry Taylor in 2013, then

9

Unklesbay’s statement in the memorandum in support of the no-contest plea, and his

10

similar statement to the court at the change-of-plea hearing, were not simply inartful but

11

false.

In that memorandum to Judge Fields,

(Doc. 341-4 at 8.)

However, if

12

The Court previously took under advisement the issue of whether Unklesbay and

13

Acosta’s affidavits should be rejected as shams due to the contradiction between the

14

affidavits and the statement in the 2013 memorandum. (Doc. 568 at 7.) Under the sham

15

affidavit rule, a party cannot create a genuine issue of material fact by submitting an

16

affidavit that contradicts his or her prior deposition testimony. Yeager v. Bowlin, 693

17

F.3d 1076, 1080 (9th Cir. 2012). To justify striking an affidavit under this rule, the

18

inconsistency “between a party’s deposition testimony and subsequent affidavit must be

19

clear and unambiguous,” and the district court must make a determination that the

20

contradiction between the affidavit and former deposition testimony is actually a “sham.”

21

Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998-99 (9th Cir. 2009). The sham

22

affidavit rule “should be applied with caution,” and the rule does not preclude a party

23

from “elaborating upon, explaining or clarifying prior testimony.” Id. (internal quotation

24

marks omitted).

25

There is a clear and unambiguous inconsistency between Unklesbay’s statements

26

in the 2013 memorandum in support of Taylor’s no-contest plea and the statements in

27

Unklesbay’s affidavit.

28

statement, because Acosta did not submit the memorandum, and because Unklesbay

However, because the 2013 memorandum was not a sworn

- 22 -

1

provides some explanation for the inconsistency, the Court does not find that the

2

affidavits of Unklesbay and Acosta must be disregarded under the sham affidavit rule.

3

In light of the affidavits of Unklesbay and Acosta, the Court finds there is a

4

material dispute of fact concerning whether the Pima County Attorney’s Office could

5

have and was prepared to retry Taylor if resolution of Taylor’s 2012 Petition for Post-

6

Conviction Relief had resulted in a new trial. A reasonable jury could accept Unklesbay

7

and Acosta’s averments that they could have retried Taylor. (Doc. 341-4 at 6, 8, 13-15.)

8

But reasonable jury could instead find that Unklesbay meant what he said in 2013: that if

9

a new trial had been ordered, the prosecution would have been unable to proceed, and

10

Taylor’s convictions would not have stood. (Doc. 344-2 at 9.)

11

A reasonable jury could also reach differing inferences regarding why the

12

prosecution would have been unable to proceed with a retrial. Unklesbay averred at the

13

change-of-plea hearing that the prosecution would have been unable to proceed “given

14

the passage of time, the destruction of evidence, and the death of many of the witnesses

15

who testified.”

16

reasonable jury could find that the prosecution’s difficulties in retrying the case would

17

have extended far beyond the effects of the passage of time on the evidence. Had a new

18

trial been ordered, the trial court may have ruled—as this Court rules below—that the

19

doctrine of issue preclusion did not bar Taylor from relitigating issues raised during his

20

original criminal proceedings. See Campbell v. SZL Props., Ltd., 62 P.3d 966, 969-70

21

(Ariz. App. 2003) (vacated judgment lacks preclusive effect). If the court so ruled,

22

Taylor could have persuasively argued for the suppression of his December 20, 1970

23

statements to law enforcement and the preclusion of the testimony of Robert and Holmes.

24

Even if unsuccessful in precluding the testimony of Robert and Holmes, Taylor could

25

have undermined that testimony using evidence that City and County officials coerced

26

Robert and Wallmark into testifying by threatening them with criminal charges, evidence

27

that Robert recanted his testimony, evidence of Holmes’s racist profiling opinions, and

28

evidence that Holmes’s methodologies are unreliable and outdated. Taylor could also

(Doc. 348-11 at 21.)

However, there is evidence from which a

- 23 -

1

have presented evidence from Cummings, Smyth, and the authors of the ARC Report that

2

the Pioneer Hotel fire cannot be classified as arson, as well as evidence in the form of the

3

Truesdail Report that no accelerants were found in debris samples from the hotel.

4

Neither this Court nor the jury need definitively determine how the state court

5

would have ruled on these evidentiary issues or what verdict a state court jury would

6

have reached at a retrial. The issue is not whether there is proof beyond a reasonable

7

doubt that the Pioneer Hotel fire was arson or that Taylor is guilty. The issue is whether

8

the Pima County Attorney’s Office believed it could have presented proof beyond a

9

reasonable doubt at a new trial, and the bases for that belief. A reasonable jury could find

10

that, if a new trial had been ordered in Taylor’s case, the prosecution knew it would have

11

been unable to prove guilt beyond a reasonable doubt, not only due to the effects of the

12

passage of time on the state of the evidence but due to new evidence that the Pioneer

13

Hotel fire cannot be classified as arson and due to serious problems concerning the

14

admissibility and credibility of key evidence presented during Taylor’s 1972 trial.

15

A reasonable jury could also find that the Pima County Attorney’s Office

16

leveraged Taylor’s existing incarceration in order to extract a no-contest plea from him,

17

despite Taylor’s protestations that he was innocent and had been wrongfully convicted,

18

and despite evidence undermining the integrity of the 1972 convictions. If Taylor had

19

rejected the no-contest plea agreement, he would have had to have spent months or even

20

years waiting in prison while the trial court resolved his Petition for Post-Conviction

21

Relief. The no-contest plea allowed him to instead obtain immediate release, and he has

22

testified that he agreed to the plea solely because he did not want to spend any more time

23

incarcerated. (Doc. 341-2 at 223-224.)

24

Even when not motivated by financial concerns, requiring a wrongfully convicted

25

defendant to plead no contest to the original charges in order to obtain release from

26

prison undermines the fairness and integrity of the justice system. The undersigned and

27

other judges17 have expressed deep concern regarding this practice, as has the American

28

17

(See, e.g., Doc. 81 at 9-10); Taylor v. Pima Cnty., 913 F.3d 930, 939 (9th Cir.
2019) (Schroeder, J., dissenting).
- 24 -

1

Bar Association. On February 6, 2017, the American Bar Association issued a resolution

2

stating that, when a prosecutor’s office supports a defendant’s motion to vacate a

3

conviction based on doubts about the defendant’s guilt or the lawfulness of the

4

conviction, “the office should not condition its support for the motion” on “a no contest

5

plea by the defendant to the original or any other charge.” 18 During the interlocutory

6

appellate proceedings in this case, the American Bar Association submitted an amicus

7

curiae brief in support of Plaintiff’s Petition for Certiorari, stating that the practice of

8

conditioning the release of a wrongfully convicted person on a new plea is contrary to

9

“prosecutorial standards, rules, and resolutions,” and “undermines public faith in, and the

10

very the integrity of, our criminal justice system.” (Doc. 343-4 at 22.)

11

This prosecutorial practice is particularly egregious when motivated by financial

12

interests. This Court has previously expressed concern that Heck has unintentionally

13

created a financial incentive for prosecutors to condition support for post-conviction

14

relief and release from imprisonment on a defendant’s agreement to plead no contest to

15

the original charges. (Doc. 81 at 9.) Unklesbay and Acosta aver in their affidavits that

16

they did not consider Pima County’s civil liability when deciding to offer Taylor a no-

17

contest plea. (Doc. 341-4 at 6, 14.) However, the record contains evidence from which a

18

reasonable jury could reach the opposite conclusion. First, given that Unklesbay and

19

Acosta reviewed significant evidence undermining the integrity of Taylor’s 1972

20

convictions, a reasonable jury could simply discount Unklesbay and Acosta’s explanation

21

that they offered Taylor a no-contest plea in order to maintain the integrity of those

22

convictions. The testimony of Pacheco also supports a finding that Unklesbay and

23

Acosta reasonably must have known that an exonerated defendant poses a greater risk of

24

financial exposure to the prosecutor’s office than a defendant with outstanding criminal

25

convictions. (Doc. 350-3 at 20; see also Doc. 567 at 8.)

26

Furthermore, a reasonable jury could find that subsequent conduct by the Pima

27

County Attorney’s Office and Pima County’s lawyers in this civil action indicate that the

28

18

See
https://www.americanbar.org/content/dam/aba/directories/policy/midyear2017/2017-midyear-112b.pdf (lasted visited Jan. 19, 2024).
- 25 -

1

Pima County Attorney is currently—and has been since Taylor’s 2012 Petition for Post-

2

Conviction Relief—motivated by financial considerations in its handling of Taylor’s

3

case. In early 2021, the Conviction and Sentencing Integrity Unit of the Pima County

4

Attorney’s Office, led by former Deputy County Attorney Chin, began a review of

5

Taylor’s case. (Doc. 810-2 at 11, 20-21.) As a result of that review, Chin believed the

6

charges against Taylor should have been dismissed, and he authored a motion to vacate

7

Taylor’s 2013 convictions. (Id. at 18-19; Doc. 810-3.) Chin testified at his September

8

15, 2023 deposition that Pima County Attorney Conover agreed with the motion and

9

authorized him to file it. (Doc. 810-2 at 19, 22.)19

10

In approximately May of 2022, Conover began contacting stakeholders to advise

11

them that the motion to exonerate would be filed. (Doc. 810-1 at 17, 34; Doc. 810-2 at

12

20.) On May 30, 2022, David Berkman, who had run the criminal division during the

13

prior Pima County Attorney administration under Barbara LaWall,20 sent an email to

14

County Supervisor Rex Scott regarding Conover’s plan to file a motion to exonerate

15

Taylor’s convictions, warning that if the convictions were to be set aside, Taylor would

16

“be able to get damages which may cost the County a ton.” (Doc. 575-7 at 2; see also

17

Doc. 810-1 at 47.) Berkman advised that the “lawyer for Pima County needs to be

18

directed to get involved.” (Doc. 575-7 at 2.)

19

Around the same time, Conover had a telephone conversation with Nick Acedo,

20

who represents Pima County in this civil action, and advised him that a motion to

21

exonerate would likely be filed in Taylor’s case. (Doc. 810-1 at 43.) Conover testified

22

that Acedo’s “volume and speech pattern increased dramatically,” and “he seemed to be

23

beside himself that this could possibly be happening and indicated that [Conover]

24

couldn’t undertake this because [she] was the county attorney, and it didn’t align with

25

what he wanted, and he referenced that he thought the state bar . . . would have

26
19

27
28

During her September 26, 2023 deposition, Conover disputed that she had
unequivocally decided to file the motion, stating that she had agreed with the motion and
had determined it would “likely” be filed. (Doc. 810-1 at 17.)
20
The Court takes judicial notice that LaWall was the Pima County Attorney at the time
of Taylor’s 2013 plea.
- 26 -

1

something to say about this.” (Id.) After speaking to Acedo, Conover changed her mind

2

and decided not to file the motion to exonerate. (Id. at 41-43; Doc. 810-2 at 22-25.)

3

Conover testified that she had significant concerns regarding Taylor’s 1972 trial and how

4

his case was handled in 2013 but that, after a lengthy meeting with her team, she

5

determined that her “hands were tied” due to Arizona’s stringent post-conviction

6

standards. (Doc. 810-1 at 18-20, 25, 33.) Taylor’s case was the only case in which the

7

Pima County Attorney did not follow Chin’s recommendation to set aside a conviction.

8

(Doc. 810-2 at 19.)

9

There are material disputes of fact concerning why Conover decided not to file a

10

motion to exonerate Taylor. A reasonable jury could conclude that her decision was

11

based solely on her evaluation of the legal merits of the draft motion to exonerate.

12

However, a reasonable jury could instead find that her decision was influenced by Pima

13

County’s financial considerations, given the testimony concerning her conversation with

14

Acedo and the proximity in time between that conversation and her dramatic change in

15

position regarding the motion to exonerate.

16

particularly in light of Berkman’s email, that if financial considerations led the Pima

17

County Attorney to decline to exonerate Taylor in 2022, they also likely played a role in

18

the Pima County Attorney’s decision to condition support for Taylor’s 2012 Petition for

19

Post-Conviction Relief on Taylor accepting a no-contest plea to the original 28 counts of

20

murder.

A reasonable jury could further find,

21

The Court finds as a matter of law that Shipp expungement is appropriate if the

22

jury finds (1) that the prosecution in 2013 leveraged Taylor’s existing incarceration in

23

order to obtain a no-contest plea to charges that it knew could not be proven beyond a

24

reasonable doubt at a retrial, and (2) that the prosecution did so for purposes of creating a

25

Heck bar to civil liability. Finding otherwise would be equivalent to concluding that the

26

judiciary is impotent when faced with clever but unethical prosecutorial tactics that

27

undermine the interests of justice. Because there are material disputes of fact concerning

28

whether Shipp expungement is appropriate, the Court denies summary judgment on

- 27 -

1

Taylor’s claim for declaratory relief expunging his 2013 convictions. If a jury makes

2

factual findings rendering Shipp expungement appropriate, the Heck bar in this case will

3

be lifted, and Taylor will no longer be precluded from seeking incarceration-based

4

damages.

5

D. Claims Regarding Actual Innocence and Taylor’s 1972 Convictions

6

Plaintiff asserts that he is innocent, and he asks the Court to find as a matter of law

7

that the Pioneer Hotel fire was not arson and that his 1972 convictions are

8

unconstitutional and void.

9

appropriate to reach those issues. Plaintiff’s TAC asserts constitutional violations arising

10

from Taylor’s original criminal proceedings and alleges that, as a result of Defendants’

11

conduct, he was wrongfully charged, convicted, and imprisoned.

12

discussed above, the issue of whether the prosecution could have proven guilt beyond a

13

reasonable doubt at a retrial in 2013 is relevant to Taylor’s claim for declaratory relief.

14

Taylor’s protestations of innocence may also be relevant to his damages. However, the

15

prosecution and conviction of an innocent person is not in and of itself a constitutional

16

violation. See Herrera v. Collins, 506 U.S. 390, 400 (1993) (claim of actual innocence

17

based on newly discovered evidence does not “state a ground for federal habeas relief

18

absent an independent constitutional violation occurring in the underlying state criminal

19

proceeding”). Neither this Court nor the jury need definitively determine whether Taylor

20

is guilty or innocent, or whether the Pioneer Hotel fire was or was not arson, in order to

21

resolve the claims at issue in this lawsuit.

(Doc. 349 at 1-2, 11, 22-23, 31.)

However, it is not

(Doc. 169.)

As

22

Furthermore, to the extent Plaintiff asks this Court to declare his 1972 convictions

23

unconstitutional and void, the Court notes that the 1972 convictions were vacated in

24

2013, and it would be premature for this Court to speculate on whether the 1972

25

convictions would be reinstated if a jury were to determine in the above-captioned case

26

that Taylor’s 2013 convictions should be expunged under Shipp. Taylor’s 2013 plea

27

agreement provides that if the plea is vacated “by any court,” then “the plea agreement

28

will become void,” “the parties to the plea agreement shall return to the positions they

- 28 -

1

were in before executing the plea agreement,” and “[a]ny charges that were dismissed

2

because of the plea agreement will be automatically reinstated.” (Doc. 348-10 at 6-7.)

3

This language appears to be boilerplate language adopted from standard plea agreements,

4

which are offered to resolve pending criminal charges. Taylor’s situation was unique in

5

that the Pima County Attorney offered him the no-contest plea to resolve his Petition for

6

Post-Conviction Relief rather than to resolve pending criminal charges. It is entirely

7

unclear how the boilerplate language of the plea agreement would apply in the event a

8

jury determines that Taylor’s 2013 convictions should be expunged under Shipp. No

9

charges were dismissed as a result of Taylor’s no-contest plea, and therefore the

10

agreement’s provision regarding the reinstatement of dismissed charges appears to be

11

inapplicable. If a jury finds the 2013 convictions should be expunged and the Pima

12

County Attorney wishes to enforce the plea agreement’s provision stating that the parties

13

will return to their pre-plea positions, then the Pima County Attorney would need to seek

14

judicial relief in state court.

15

E. Eleventh Amendment and Prosecutorial Immunity

16

Pima County argues that it is entitled to Eleventh Amendment immunity and

17

absolute prosecutorial immunity because Plaintiff’s allegations against it involve

18

prosecutorial actions and decisions taken on behalf of the State of Arizona. (Doc. 351 at

19

18 n.6.)21 Pima County further argues that the policies and practices of the Pima County

20

Attorney’s Office related to criminal prosecutions are the policies and practices of the

21

State of Arizona rather than Pima County, because the Pima County Attorney prosecutes

22

criminal cases on behalf of the state. (Id. at 21.)

23

This Court previously rejected Pima County’s argument “that absolute

24

prosecutorial immunity shields a municipality from liability . . . for claims alleging that

25

the municipality’s constitutionally deficient training, supervision, and hiring/retention of

26

21

27
28

Pima County also argues that it cannot be sued under 42 U.S.C. § 1983 because at the
time Taylor’s 1972 convictions became final, Monroe v. Pape, 365 U.S. 167 (1961),
precluded § 1983 actions against local government entities. (Doc. 351 at 20.) However,
Pima County concedes that this Court is bound by Tosti v. City of Los Angeles, 754 F.2d
1485, 1488 (9th Cir. 1985), which held that Monell v. Dep’t of Soc. Servs. of N.Y. Cty.,
436 U.S. 658 (1978), applies retroactively. (Id.)
- 29 -

1

prosecutors exhibited deliberate indifference to criminal defendants’ constitutional

2

rights.”

3

prosecutorial immunity is contrary to longstanding Supreme Court precedent establishing

4

that “unlike various government officials, municipalities do not enjoy immunity from

5

suit—either absolute or qualified—under § 1983.”

6

Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166 (1993); see also Owen v.

7

City of Independence, 445 U.S. 622, 638, 650 (1980).

(Doc. 35 at 9-10.)

Pima County’s position that it is entitled to absolute

Leatherman v. Tarrant Cnty.

8

This Court also previously addressed Pima County’s Eleventh Amendment

9

immunity arguments and found that the Eleventh Amendment does not extend to

10

counties. (Doc. 63 at 18.) The Court interpreted cases addressing counties’ assertions of

11

Eleventh Amendment immunity as standing for the proposition that a county cannot be

12

held liable under § 1983 for the actions of state, rather than county, policymakers. (Id. at

13

18-19.) In the interlocutory appeal in this case, Judge Graber wrote a concurring opinion

14

affirming that Pima “County is not entitled to Eleventh Amendment immunity” because it

15

is not a state and has not asserted that it is an arm of the state. Taylor, 913 F.3d at 936-37

16

(Graber, J., concurring).

17

County’s arguments are relevant to whether Plaintiff can establish proof of municipal

18

liability under Monell v. Department of Social Services of New York City, 436 U.S. 658

19

(1978). See Taylor, 913 F.3d at 937 (Graber, J. concurring).

Judge Graber recognized—as did this Court—that Pima

20

Determining whether a county officer acts as a state or county official for purposes

21

of Monell liability “is made on a function-by-function approach by analyzing under state

22

law the organizational structure and control over” the official. Goldstein v. City of Long

23

Beach, 715 F.3d 750, 753 (9th Cir. 2013). The Pima County Attorney is elected by Pima

24

county voters, Ariz. Const. Art. 12 § 3; is defined by statute as a county officer, A.R.S. §

25

11-401(a)(5); and is required to live in Pima County, A.R.S. § 11-404(6). The budget of

26

the Pima County Attorney is set by the Pima County Board of Supervisors. A.R.S. § 11-

27

201(A)(6).

28

consent pursuant to A.R.S. § 11-409 to the county attorney’s appointment of deputy

As this Court has already found, the county board of supervisors must

- 30 -

1

county attorneys, and the board fixes the deputies’ salaries. (Doc. 63 at 18.) The Pima

2

County Attorney is defined by statute as “the public prosecutor of the county,” although

3

the same statute provides that the county attorney conducts prosecutions for public

4

offenses “on behalf of the state.” A.R.S. § 11-532(A)(1). The Arizona Attorney General

5

does not have “day-to-day control over the operation of county attorneys’ offices.” Milke

6

v. City of Phoenix, No. CV-15-00462-PHX-ROS, 2016 WL 5339693, at *17 (D. Ariz.

7

Jan. 8, 2016).

8

Because the Pima County Attorney prosecutes public offenses on behalf of the

9

State of Arizona but acts as a county official in other functions, this Court must determine

10

whether the actions challenged by Plaintiff fall within the Pima County Attorney’s

11

prosecutorial functions or within “administrative or other non-prosecutorial duties.”

12

Ceballos v. Garcetti, 361 F.3d 1168, 1183-84 (9th Cir. 2004), rev’d on other grounds by

13

Garcetti v. Ceballos, 547 U.S. 410 (2006). Other courts within this district have found

14

that, in Arizona, county attorneys act as “local policymaker[s] when it comes to

15

administrative policies such as direct supervision of other prosecutors and office policies,

16

such as the disclosure of evidence.”

17

Montgomery, No. CV-18-02684-PHX-EJM, 2019 WL 2515950, at *17-19 (D. Ariz. June

18

8, 2019) (finding county attorney acted on behalf of county with respect to claims

19

specific to county attorney’s administrative role); see also Gobel v. Maricopa Cnty., 867

20

F.2d 1201, 1208-09 (9th Cir. 1989), abrogated on other grounds by Merritt v. Cnty. of

21

Los Angeles, 875 F.2d 765 (9th Cir. 1989) (recognizing county attorney may be final

22

county policymaker under Arizona law); City of Phoenix v. Yarnell, 909 P.2d 377, 388

23

(Ariz. 1995) (recognizing that county attorneys and even deputy county attorneys may be

24

final county policymakers with respect to decisions to pursue prosecutions and withhold

25

Brady material); Ceballos, 361 F.3d at 1184 (recognizing personnel decisions as

26

“squarely within” a county attorney’s “administrative function”).

Milke, 2016 WL 5339693, at *17; Briggs v.

27

Here, Plaintiff alleges that Pima County failed to properly train and supervise

28

county prosecutors and exhibited deliberate indifference to the constitutional rights of

- 31 -

1

criminal defendants in its personnel decisions. The Court finds that the Pima County

2

Attorney acted as a municipal rather than a state official in implementing the

3

administrative practices and policies at issue in this case.22 The Court denies Pima

4

County summary judgment on the issue of whether it is entitled to Eleventh Amendment

5

or absolute prosecutorial immunity, and whether Plaintiff’s Monell claims fail on the

6

ground that the Pima County Attorney acted as a state official.

7

F. Issue Preclusion

8

Defendants argue that Plaintiff is precluded from relitigating issues that were

9

resolved against him during his criminal proceedings, including: (1) Miranda violations

10

and voluntariness of statements; (2) Brady violations; (3) Robert’s trial testimony; (4)

11

Weiss’s alleged misconduct; and (5) insufficient evidence. (Doc. 332 at 5-7, 16-17; Doc.

12

364 at 2-5, 12-13; Doc. 373 at 5, 11.) Plaintiff argues that issue preclusion is inapplicable

13

to vacated convictions. (Doc. 366 at 24; Doc. 371 at 6-7; Doc. 384 at 2; Doc. 385 at 7.)

14

Plaintiff further argues that issue preclusion is inapplicable because the courts were not

15

aware of all evidence relevant to his claims. (Doc. 349 at 15; Doc. 371 at 7.) Defendants

16

contend

17

notwithstanding the vacatur of Taylor’s 1972 convictions, relying on Vargas v. City of

18

Los Angeles, 857 Fed. App’x 360 (9th Cir. 2021) (mem.). (Doc. 383 at 4; Doc. 386 at 13

19

n.13.) Defendants further argue that, regardless of the preclusive effect of the state

20

criminal proceedings, Taylor is precluded from relitigating any issues decided against

21

him during his federal habeas proceedings, as the federal habeas corpus judgment has not

22

been vacated. (Doc. 383 at 4; Doc. 386 at 13 n.13.)

23
24
25
26
27
28

that

Plaintiff’s

state

criminal

proceedings

retain

preclusive

effect

State law governs the application of the doctrine of issue preclusion—also known
Pima County argues it had no authority to terminate Weiss’s employment, citing
Hounshell v. White, 202 P.3d 466, 470 (Ariz. App. 2008). (Doc. 351 at 23.) In
Hounshell, the Arizona Court of Appeals found that only the county sheriff—and not the
county board of supervisors—has authority to dismiss or suspend the sheriff’s deputies.
202 P.3d at 470. This Court has previously rejected Pima County’s reliance on
Hounshell (Doc. 63 at 17-18), and the Court continues to find Hounshell unavailing for
purposes of the issue at hand. By insisting that its identity aligns only with that of the
county board of supervisors rather than the county attorney, Pima County ignores that the
Pima County Attorney acts as a county officer with respect to administrative functions
such as personnel decisions.
22

- 32 -

1

as collateral estoppel—to a state court judgment in a federal civil rights action. Mills v.

2

City of Covina, 921 F.3d 1161, 1169 (9th Cir. 2019).

3

preclusion binds a party to a decision on an issue litigated in a prior case if: “(1) the issue

4

was actually litigated in the previous proceeding, (2) the parties had a full and fair

5

opportunity and motive to litigate the issue, (3) a valid and final decision on the merits

6

was entered, [and] (4) resolution of the issue was essential to the decision.” Campbell, 62

7

P.3d at 968.23 “The party seeking to invoke preclusion must establish all its elements.”

8

Crosby-Garbotz v. Fell ex rel. Pima Cnty., 434 P.3d 143, 148 (Ariz. 2019).

Under Arizona law, issue

9

A vacated judgment is not a valid and final decision and thus does not have “any

10

collateral estoppel effect.” Campbell, 62 P.3d at 969-70. Accordingly, under Arizona

11

law, the doctrine of issue preclusion does not preclude Plaintiff from relitigating issues

12

decided against him during the state criminal proceedings arising from his now-vacated

13

1972 convictions.

14

memorandum disposition in Vargas is inapposite, because Vargas applied California law

15

on issue preclusion rather than Arizona law. See 857 Fed. App’x at 361.

Defendants’ reliance on the Ninth Circuit’s non-precedential

16

Furthermore, under Arizona law, issue preclusion “does not apply where

17

circumstances are different, based on new evidence.” Crosby-Garbotz, 434 P.3d at 148.

18

Plaintiff notes the Arizona Supreme Court was not aware at the time it evaluated Taylor’s

19

prosecutorial misconduct claim on direct appeal that the prosecution had engaged in ex

20

parte communications with the trial judge and dismissed jurors, nor was the court aware

21

that Weiss had suppressed the Truesdail Report, Bergman’s exculpatory testimony,

22

evidence of Robert’s coerced and perjured testimony, and evidence of an alternative

23

suspect named Donald Anthony. (Doc. 349 at 15-16.) Indeed, the Arizona Supreme

24

Court and the District of Arizona rejected Taylor’s Brady claim on direct appeal because

25

Taylor relied on a “bare assumption that something was withheld,” without specifically

26

identifying any suppressed Brady material. Taylor, 537 P.2d at 948; (see also Doc. 341-5

27
23

28

When issue preclusion is used offensively, there must also be common identity of the
parties. Campbell, 62 P.3d at 968. Here, Defendants are invoking the doctrine of issue
preclusion defensively and thus the common-identity element is not required. See id.
- 33 -

1

at 75.) The new evidence supporting Plaintiff’s claims provides further reason to decline

2

to apply preclusive effect to the decisions made during the state-court proceedings related

3

to Taylor’s 1972 criminal trial.

4

Federal law determines the preclusive effect of a prior federal habeas decision in a

5

42 U.S.C. § 1983 lawsuit. Hawkins v. Risley, 984 F.2d 321, 325 (9th Cir. 1993). Federal

6

courts have found that prior federal habeas proceedings arising from subsequently

7

vacated criminal convictions have no preclusive effect in a § 1983 case. See Chandler v.

8

Louisville Jefferson Cnty. Metro Gov’t, No. 3:10-CV-470-H, 2011 WL 781183, at *2

9

(W.D. Ky. Mar. 1, 2011) (“a federal court’s habeas rulings based upon discredited and

10

vacated state proceedings” are not “worthy of preclusive effect”); Glenn v. City of

11

Hammond, No. 2:18-CV-150-TLS-JEM, 2021 WL 4078063, at *9 (N.D. Ind. Sept. 7,

12

2021) (same). This Court agrees that, given the nature of federal habeas proceedings,

13

federal habeas rulings based upon vacated state proceedings do not have preclusive effect

14

in a subsequent § 1983 lawsuit.

15
16
17

The Court denies Defendants’ Motions for Summary Judgment to the extent
Defendants argue that Plaintiff’s claims are barred by the doctrine of issue preclusion.
G. Municipal Liability Under 42 U.S.C. § 1983

18

Defendants argue that Plaintiff cannot prove any underlying constitutional

19

violations and cannot make the required showings to support municipal liability under 42

20

U.S.C. § 1983. (Doc. 332 at 4-25; Doc. 351 at 20-25.) The Court addresses, first, the

21

parties’ arguments concerning underlying constitutional violations and then addresses the

22

parties’ arguments concerning municipal liability.

23
24

1. Underlying Constitutional Claims
a. Unlawful Arrest and Interrogation

25

Plaintiff argues that the Tucson Police Department violated his Miranda rights

26

because he was arrested at the Pioneer Hotel and interrogated before being given

27

Miranda warnings. (Doc. 349 at 25-28.) He asks this Court to rule as a matter of law

28

that there was no probable cause for his arrest and that his Miranda rights were violated.

- 34 -

1

(Doc. 371 at 1.) Plaintiff also argues that his statements were involuntary because he was

2

held at gunpoint at the police station, as shown by the deposition testimony of Bergman.

3

(Doc. 349 at 27-28; see also Doc. 343 at ¶ 52; Doc. 343-15 at 50-51.) Defendants argue

4

that Plaintiff’s claims regarding his arrest and interrogation are time-barred, that

5

Plaintiff’s TAC does not allege Miranda violations or involuntary statements, and that

6

Bergman’s deposition testimony concerning Plaintiff being held at gunpoint is not

7

credible and is contradicted by all other evidence in the record, including the trial

8

testimony of Bergman and Taylor. (Doc. 332 at 6; Doc. 364 at 5; Doc. 365 at ¶ 52; Doc.

9

373 at 4; Doc. 374 at ¶ 52; Doc. 383 at 4-5.)

10

This Court has already ruled that the statute of limitations bars claims premised on

11

Taylor being arrested without probable cause or unlawfully interrogated. (Doc. 63 at 11-

12

12.) Plaintiff appears to concede that he cannot recover damages related to his arrest.

13

(Doc. 384 at 4.)

14

interrogation are relevant to the overarching question of the constitutionality of his

15

convictions, because his statements should have been precluded in 1972 and would have

16

been precluded in a retrial if the Pima County Attorney had not coerced him into

17

accepting a no-contest plea in 2013. (Id.)

However, he argues that the issues concerning his arrest and

18

The Court agrees that evidence related to the timing of Taylor’s arrest and the

19

voluntariness of his statements to law enforcement may be relevant to whether the Pima

20

County Attorney believed in 2013 that it had sufficient evidence to prove Taylor’s guilt

21

beyond a reasonable doubt at a retrial and, thus, relevant to the issue of Shipp

22

expungement. However, resolution of the Shipp expungement issue does not require this

23

Court or the jury to reach definitive determinations regarding the voluntariness of

24

Taylor’s statements or whether they were obtained in violation of Miranda. Accordingly,

25

to the extent Plaintiff asks the Court to rule as a matter of law that his statements were

26

involuntary or that his Miranda rights were violated, the Court declines to do so.

27

Furthermore, the Court grants summary judgment in Defendants’ favor to the extent that

28

Plaintiff cannot obtain damages based on his arrest or interrogation.

- 35 -

1

b. Truesdail Report

2

On December 23, 1970, Tucson Fire Department Captain Lyn Gilmore and private

3

investigator Glen Miller collected debris samples from the Pioneer Hotel. (Doc. 348-3 at

4

25.)24

5

February 16, 1971, the Technical Director of Truesdail Laboratories issued a report

6

addressed to Miller stating that no evidence of accelerants had been detected in the debris

7

samples. (Doc. 343-6.) Sometime before Taylor’s trial, Miller and Gilmore spoke on the

8

phone regarding the results of the analysis of the debris samples. (Doc. 343-9.)25 Miller

9

summarized the findings of the Truesdail Report and promised to send Gilmore a copy of

10

the report. (Id. at 3-5.) Gilmore stated that “the County Attorney did want some

11

indications so that he might know what to expect.” (Id. at 4.) Miller indicated Taylor’s

12

defense attorney had called him seeking a copy of the report, but that Miller did not

13

provide a copy to the defense attorney. (Id. at 4-5.) In an affidavit and at a deposition

14

taken in the above-captioned case, Kashman averred that the Truesdail Report was never

15

disclosed to the defense, and that it would have been critical to cross-examining Robert

16

and informing Smyth’s opinions. (Doc. 341-1 at 201-203, 206-209, 263-264; Doc. 343-

17

12 at 3.)

18

The samples were submitted to Truesdail Laboratories for analysis, and on

Plaintiff alleges that Defendants violated his constitutional rights by withholding

19

the Truesdail Report.

20

insufficient evidence to demonstrate that the Tucson Fire Department or the prosecution

21

possessed the Truesdail Report prior to Taylor’s criminal trial; that the evidence shows

22

Kashman was aware of the existence of the report prior to trial; and that Plaintiff cannot

23

prove that the Truesdail Report was material. (Doc. 364 at 6-16; Doc. 373 at 5-6.) The

24

City of Tucson also argues that Plaintiff should be precluded from asserting his Brady

25

claim because he was aware of the Truesdail Report prior to his trial but failed to raise

26

24

27
28

(Doc. 169 at 7-9, 22-23.)

Defendants argue that there is

This fact is taken from Taylor’s 2012 Petition for Post-Conviction Relief and does not
appear to be in dispute. (See, e.g., Doc. 333 at ¶ 41; Doc. 372 ¶ 41.)
25
All parties rely on an undated transcript of this phone call in support of their summary
judgment motions. (See Doc. 333-3 at 182-87; Doc. 341-4 at 60-65; Doc. 343-9.)
Accordingly, it appears that the admissibility of the contents of the transcript is
undisputed.
- 36 -

1

any arguments concerning it in his prior state criminal and federal habeas proceedings.

2

(Doc. 364 at 12-13.)

3

Plaintiff argues that a reasonable juror could infer Defendants possessed the

4

Truesdail Report prior to Taylor’s criminal trial because the report was ultimately found

5

in the files of the Tucson Fire Department, Glen Miller promised prior to trial to send the

6

report to the Tucson Fire Department, and Weiss inquired about the report prior to trial.

7

(Doc. 384 at 5.) Plaintiff further argues that Brady required disclosure of the report.

8

(Doc. 371 at 8-16; Doc. 384 at 5-8.) Finally, Plaintiff argues that his Brady arguments

9

concerning the Truesdail Report are not precluded because he was unaware of the report

10

when he filed his post-conviction and habeas proceedings. (Doc. 384 at 8-9.)

11

In Brady, the Supreme Court held that the “suppression by the prosecution of

12

evidence favorable to an accused . . . violates due process where the evidence is material

13

either to guilt or to punishment, irrespective of the good faith or bad faith of the

14

prosecution.” 373 U.S. at 87. Favorable exculpatory or impeachment evidence “is

15

material, and constitutional error results from its suppression by the government, if there

16

is a reasonable probability that, had the evidence been disclosed to the defense, the result

17

of the proceeding would have been different.” Kyles v. Whitley, 514 U.S. 419, 433

18

(1995) (internal quotation marks omitted). “The question is not whether the defendant

19

would more likely than not have received a different verdict with the evidence, but

20

whether in its absence he received a fair trial,” meaning “a trial resulting in a verdict

21

worthy of confidence.” Id. at 434.

22

Police officers and prosecutors alike have an obligation to disclose material,

23

exculpatory evidence. Carrillo v. Cnty. of Los Angeles, 798 F.3d 1210, 1219 (9th Cir.

24

2015). Furthermore, a “prosecutor has a duty to learn of any favorable evidence known

25

to others acting on the government’s behalf in the case.” Kyles, 514 U.S. at 437; see also

26

Carriger v. Stewart, 132 F.3d 463, 479-80 (9th Cir. 1997) (en banc) (“prosecution has a

27

duty to learn of any exculpatory evidence known to others acting on the government’s

28

behalf”).

A prosecutor’s obligations under Brady are “not excused by a defense

- 37 -

1

counsel’s failure to exercise diligence with respect to suppressed evidence. However,

2

defense counsel cannot lay a trap for prosecutors by failing to use evidence of which

3

defense counsel is reasonably aware.” Amado v. Gonzalez, 758 F.3d 1119, 1135 (9th Cir.

4

2014).

5

The transcript of the phone call between Miller and Gilmore shows that the

6

Tucson Fire Department was aware of the findings of the Truesdail Report prior to

7

Taylor’s trial. (Doc. 343-9 at 3-5.) A reasonable jury could find that the Tucson Fire

8

Department also possessed a copy of the report prior to trial, as Miller promised during

9

the phone call to send a copy to Gilmore.26 Gilmore’s knowledge is imputed to the
See Kyles, 514 U.S. at 437.27

10

prosecution for purposes of Brady.

11

reasonable jury could infer from the phone call between Miller and Gilmore that Weiss

12

was made aware of the contents of the Truesdail Report prior to trial, as Gilmore

13

indicated in the phone call that Weiss had inquired about the report’s findings.

Furthermore, a

14

Defendants argue that Weiss complied with his Brady obligations by disclosing

15

the names of the author and recipient of the Truesdail Report in a witness list containing

16

hundreds of witness names. (Doc. 364 at 11-12; see also Doc. 341-5 at 64-70.) The

17

Court disagrees. The record reflects that Weiss did not disclose the Truesdail Report or

18

any information concerning it, nor did he explain what relevant information was

19

possessed by the witnesses he disclosed. Discerning from Weiss’s expansive witness list

20

that the Truesdail Report found no evidence of accelerants in debris samples from the

21

Pioneer Hotel would have required significant investigatory efforts by defense counsel.

22
26

23
24
25
26
27
28

Taylor also identifies evidence indicating the Truesdail Report was ultimately found in
the Tucson Fire Department’s files (Doc. 343-10 at 2), although Defendants challenge the
admissibility of that evidence (Doc. 364 at 7-8).
27
The Ninth Circuit has held that police officers’ obligation to disclose material and
exculpatory evidence “follows logically from Brady’s rationale . . . [b]ecause police
officers play an essential role in forming the prosecution’s case.” Carrillo, 798 F.3d at
1220; see also Barbee v. Warden, Md. Penitentiary, 331 F.2d 842, 846 (4th Cir. 1964)
(finding police obligated to disclose Brady material); United States v. Butler, 567 F.2d
885, 891 (9th Cir. 1978) (same). Here, the Tucson Fire Department officers investigating
the Pioneer Hotel fire played an essential role in forming the prosecution’s case, and the
evidence indicates they worked closely with the police and the prosecution. Accordingly,
based on the rationale of Brady, Tucson Fire Department officers were obligated at the
time of Taylor’s 1972 trial to disclose Brady material.
- 38 -

1

A prosecutor cannot “excuse his failure [to disclose Brady material] by arguing that

2

defense counsel could have found the information himself.” Amado, 758 F.3d at 1136.

3

For similar reasons, the Court finds that Kashman’s knowledge that a report

4

possibly existed is insufficient to excuse the prosecution’s disclosure obligations under

5

Brady. Miller indicated in the phone call with Gilmore that Kashman had inquired about

6

the report, but he also indicated that he declined to provide the defense with a copy of the

7

report or any information about the report’s contents. (Doc. 343-9 at 4-5.) There is no

8

evidence that Kashman was aware of the findings of the Truesdail Report prior to trial.

9

Kashman moved for the pretrial disclosure of “all evidence favorable to the defendant,”

10

including “[a]ny reports by fire or arson investigators that indicate the Pioneer Hotel fire .

11

. . was not man-caused.” (Doc. 341-4 at 67-69.) The Court granted the motion, ordering

12

the prosecution to disclose any evidence favorable to Taylor “which might be material”

13

to guilt, including the specifically requested reports by fire or arson investigators. (Id. at

14

74.) Nevertheless, the prosecution did not disclose the Truesdail Report. Finding under

15

these circumstances that Kashman had a duty to subpoena Truesdail Laboratories for a

16

copy of the Truesdail Report would impose a requirement of due diligence on defense

17

counsel that would flip a prosecutor’s disclosure obligations. Amado, 758 F.3d at 1136.

18

“[D]efense counsel may rely on the prosecutor’s obligation to produce that which Brady

19

and Giglio require him to produce.” Id.

20

The Truesdail Report was favorable to the defense, as it undermined evidence that

21

the Pioneer Hotel fire was arson. The report was material because it “could reasonably

22

be taken to put the whole case in such a different light as to undermine confidence in the

23

verdict.” Kyles, 514 U.S. at 435. Had the defense possessed a copy of the report prior to

24

trial, it may have revised its strategy and argued that the Pioneer Hotel fire was not arson.

25

(See Doc. 341-1 at 202-03; Doc. 343-12 at 3-4; Doc. 346-3 at 3.) Had Smyth seen the

26

report, he may have revised his opinions concerning the cause of the Pioneer Hotel fire,

27

as he now has done. (See Doc. 341-1 at 29, 52, 203; Doc. 343-12 at 4.) Furthermore, the

28

report would have been critical to cross-examination of Robert, who testified that Taylor

- 39 -

1

told him he started the fire using an accelerant. (Doc. 340-3 at 229-230; Doc. 340-4 at 7,

2

27; Doc. 343-12 at 3.)

3

The Court denies Defendants’ Motions for Summary Judgment to the extent

4

Defendants argue that Plaintiff cannot prove an underlying violation of his constitutional

5

rights under Brady based on the prosecution’s failure to disclose the Truesdail Report.

6

c. Holmes’s Racist Profiling Opinions

7

In addition to alleging that Defendants violated Taylor’s constitutional rights

8

under Brady, Plaintiff’s TAC alleges that Defendants violated Taylor’s constitutional

9

rights by hiring an expert who believed Taylor was guilty because “black boys” are more

10

likely to start fires. (Doc. 169 at 8-9.) In his Motion for Partial Summary Judgment,

11

Plaintiff argues that Defendants violated his constitutional rights by failing to disclose

12

Holmes’s racist opinions to the defense. (Doc. 349 at 11-12.) Pima County argues that

13

Plaintiff cannot obtain relief on this theory because he failed to plead it in his TAC.

14

(Doc. 373 at 3-4, 8.) Defendants also argue that the theory is meritless because there is

15

no evidence Holmes’s opinion that the Pioneer Hotel fire was arson was based on

16

Taylor’s race, and Defendants cannot be held liable for failing to disclose in 1972

17

deposition testimony that Holmes gave in 2012. (Doc. 364 at 19-20, 23-24; Doc. 373 at

18

8-10.) Plaintiff argues that the City was aware of Holmes’s racist opinions before

19

Taylor’s trial because Holmes told City officials the opinions. (Doc. 384 at 11.) He

20

further argues that Holmes’s race-based opinions were material and favorable evidence

21

because they confirmed Holmes’s conclusion that the Pioneer Hotel fire was arson, and

22

they would have been critical to impeaching Holmes. (Id. at 13-14.)

23

Under Rule 8 of the Federal Rules of Civil Procedure, a complaint must contain “a

24

short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.

25

R. Civ. P. 8(a)(2). Rule 8 “does not require detailed factual allegations.” Ashcroft v.

26

Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

27

complaint must “give the defendant fair notice of what the claim is and the grounds upon

28

which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal

- 40 -

However, a

1

quotation and alteration marks omitted).

2

Here, Plaintiff’s TAC raises claims under 42 U.S.C. § 1983 premised on an

3

alleged custom of racial discrimination by the City of Tucson that resulted in a violation

4

of his constitutional rights; claims against Pima County premised on failure to train and

5

supervise prosecutors and deliberate indifference to prosecutorial misconduct in

6

personnel decisions; and a claim against both Defendants alleging a conspiracy to violate

7

Plaintiff’s constitutional rights. (Doc. 169 at 11-24.) The TAC makes clear that the

8

underlying constitutional violations at issue include failure to disclose exculpatory

9

evidence under Brady and hiring a racist expert witness. (Id. at 7-9.) Inherent in the

10

allegation that Defendants knowingly hired a racist expert is the allegation that

11

Defendants did not disclose the expert’s racism to Taylor. The Court finds that the TAC

12

is sufficient to put Defendants on notice of Plaintiff’s theory that Defendants violated his

13

rights by failing to disclose Holmes’s racism.

14

The Court further finds that Plaintiff has identified sufficient evidence to raise a

15

material issue of fact concerning this theory of liability. At his November 1, 2013

16

deposition taken in connection with Taylor’s 2012 Petition for Post-Conviction Relief,

17

Holmes testified that he met with city council members, the chief of police, and the fire

18

chief during the afternoon of December 30, 1970, before he had concluded his

19

investigation. (Doc. 348-5 at 83-84.) He told the group that he “felt that the culprit was

20

probably black and that he was probably 18.” (Id. at 83-84.) By that time, Holmes had

21

“reached a preliminary determination that the fire was arson” and “the physical

22

circumstances” gave him “the race” because “blacks” were “comfortable with” fire and

23

would use it if they got “mad at somebody.” (Id. at 84-86.) Although Plaintiff did not

24

learn of Holmes’s racist profiling opinions until the 2012 deposition, a reasonable jury

25

could find that Defendants knew of them prior to Taylor’s trial, as Holmes testified that

26

he told various city officials of the opinions on December 30, 1970, and the knowledge of

27

the city officials is imputed to the prosecution for purposes of Brady. See Kyles, 514 U.S.

28

at 437.

- 41 -

1

Evidence of Holmes’s racist profiling opinions is favorable and material under

2

Brady, as it would have been critical to the defense’s cross-examination of Holmes at

3

trial. The racist opinions undermine Holmes’s credibility in general and—contrary to

4

Defendants’ arguments—a reasonable jury could find the racist profiling opinions

5

infected Holmes’s opinions regarding the cause of the Pioneer Hotel fire.

6

testified that he was not aware on December 30, 1970, that Taylor had been arrested for

7

starting the Pioneer Hotel fire. (Doc. 338-5 at 73.) However, he reached racist opinions

8

regarding who may have started the fire on the first day of his investigation, and a

9

reasonable jury could find that his opinions regarding arson were influenced by his racist

10

beliefs. Furthermore, Holmes’s opinions regarding the fire’s areas of origin shifted over

11

time. Initially, Holmes concluded there were two areas of origin on the fourth floor of

12

the hotel. (See Doc. 335-8 at 130-131, 170; Doc. 335-10 at 75-77.) However, at Taylor’s

13

trial, Holmes testified there was a probable third area of origin in the third-floor

14

stairwell—precisely where Taylor had been observed by hotel employees shortly after the

15

fire started. (Doc. 338-5 at 212.) A reasonable jury could find that Holmes’s racist

16

profiling theories influenced him to opine that there was a third area of origin at the

17

location Taylor had been found.

Holmes

18

The Court denies Defendants’ Motions for Summary Judgment to the extent they

19

argue Plaintiff cannot prove an underlying violation of his Brady rights premised on the

20

prosecution’s failure to disclose Holmes’s racist profiling opinions.

21

d. “Jailhouse Snitch” Testimony

22

In his TAC, Plaintiff alleges that Defendants violated his constitutional rights by

23

procuring testimony from Robert and Wallmark that they knew or should have known

24

was false. (Doc. 169 at 7-8, 23-24.) In his summary judgment briefs, Plaintiff argues

25

that the prosecution coerced Robert into falsely testifying at Taylor’s 1972 trial. (Doc.

26

349 at 6-8; Doc. 384 at 3-4.)

27

constitutional rights under Giglio by failing to disclose non-prosecution deals with Robert

28

and Wallmark. (Doc. 349 at 8.) Defendants argue that Robert and Wallmark testified

He also argues that the prosecution violated his

- 42 -

1

voluntarily and truthfully, that Plaintiff’s TAC does not raise any allegations concerning

2

a Giglio violation premised on failure to disclose non-prosecution agreements with

3

Robert and Wallmark, and that there is no evidence of any non-prosecution agreements.

4

(Doc. 332 at 16-19; Doc. 364 at 2-4; Doc. 373 at 3-4, 6; Doc. 383 at 12.)

5

Inherent in the TAC’s allegation that Defendants knowingly procured false

6

testimony from Robert and Wallmark is the allegation that they did not disclose to the

7

defense the circumstances by which they procured the false testimony. Furthermore, the

8

TAC alleges Weiss had a history of unethical and overzealous behavior similar to that

9

exhibited in Taylor’s case, including Brady and Giglio violations. (Doc. 169 at 5-6.) The

10

Court finds that the TAC’s allegations are sufficient to put Defendants on notice of

11

Plaintiff’s theory that Defendants failed to disclose the circumstances by which they

12

procured false testimony from Robert and Wallmark.

13

The “deliberate deception of a court and jurors by the presentation of known false

14

evidence is incompatible with rudimentary demands of justice.” Giglio, 405 U.S. at 153

15

(internal quotation marks omitted). In his May 12, 1972 statement, Robert averred that

16

his trial testimony was false, that Angeley knew it was false, and that TPD officers

17

threatened him with criminal charges if he did not provide inculpatory testimony against

18

Taylor. (Doc. 347-8.) In his August 30, 1972 affidavit, Robert’s brother Albert averred

19

that city and county officers coerced Wallmark and Robert to testify against Taylor by

20

threatening them with criminal charges and imprisonment. (Doc. 347-7.) Defendants

21

argue that the statements of Robert and Albert are inadmissible hearsay, and that the

22

testimony of Robert and Wallmark confirm that both witnesses told the truth during

23

Taylor’s 1972 trial. (See Doc. 365 at ¶¶ 137-141; Doc. 374 at ¶¶ 137-141.)

24

A district court may consider hearsay documents on summary judgment if the

25

contents of the documents could be presented in admissible form at trial. Sandoval, 985

26

F.3d at 665. This Court’s task in applying that rule is complicated by the fact that many

27

of the relevant witnesses in this case are deceased. The parties have indicated that both

28

Robert and Albert Jackson are deceased.

However, Plaintiff could offer Robert’s

- 43 -

1

recantation at the trial in this matter as a statement against interest under Federal Rule of

2

Evidence 804(b)(3)(A), as the recantation exposed Robert to criminal liability for

3

perjuring himself at Taylor’s trial.28 Albert’s statement may be admissible under the

4

residual exception of Rule 807. To the extent Robert and Albert discuss statements made

5

to them by city and county officials, it appears the officials’ statements would be

6

admissible as opposing party statements under Rule 801(d)(2). Accordingly, based on

7

Robert’s and Albert’s statements, the Court finds there are material disputes of fact

8

concerning whether Defendants procured false testimony from Robert and Wallmark by

9

threatening them with criminal charges and imprisonment.

10

e. Alternative Suspects

11

Plaintiff argues that Defendants violated his constitutional rights by failing to

12

disclose evidence of other suspects, including an October 9, 1970 letter from the Tucson

13

Fire Department discussing recent fires at the hotel, evidence of a known arsonist named

14

Donald Anthony, and evidence of an individual named Mario Corral who admitted he

15

had started the fire. (Doc. 349 at 10-11.) Pima County argues that Plaintiff failed to

16

plead these theories in his TAC. (Doc. 373 at 3-4.) Defendants also argue that Plaintiff’s

17

claims regarding other suspects are unsubstantiated and refuted by undisputed evidence.

18

(Doc. 364 at 20-23; Doc. 383 at 10-12.) Specifically, Defendants argue that Kashman

19

possessed the October 9, 1970 letter prior to trial and questioned Tucson Fire Department

20

Chief R.B. Slagel about it during the pretrial and trial proceedings. (Doc. 364 at 23; Doc.

21

373 at 7-8.) Defendants further contend that Anthony’s name does not appear anywhere

22

in the thousands of pages of police reports and documentation related to the fire, and

23

there is no evidence he was a suspect in 1970. (Doc. 332 at 21; Doc. 364 at 21-22.)

24

Defendants concede that police reports indicate Corral may have been with Taylor on the

25

night of the Pioneer Hotel fire, but Defendants argue the reports are not Brady material

26

because they implicate Taylor as a guilty party. (Doc. 364 at 22.) Defendants further

27

argue that Plaintiff fails to show that the defense was not provided with the police reports

28

28

The Court notes that Robert expressed concern at numerous points during the
statement regarding his criminal exposure for perjury. (See, e.g., Doc. 347-8 at 39-41.)
- 44 -

1

during his criminal proceedings, and it is undisputed he possessed them by the time of the

2

above-captioned case because he disclosed them in this matter. (Id. at 22.) Finally,

3

Defendants argue that Taylor himself identified Corral as a suspect prior to trial and was

4

free to tell his defense attorney about him. (Id. at 22-23.)

5

In reply, Plaintiff argues that evidence regarding Anthony and Corral would have

6

been in the City’s control at the time of his trial and that it was material because it may

7

have allowed Kashman to link the suspects to the prior fires at the Pioneer Hotel

8

referenced in the October 9, 1970 letter and thereby convince the trial judge the letter was

9

admissible. (Doc. 384 at 12-13.) He argues that City Fire Investigator William Martin

10

admitted in a 60 Minutes interview that he was aware prior to Taylor’s trial that Anthony

11

was a suspect in other downtown Tucson arsons. (Doc. 385 at 10.) Plaintiff further

12

argues that Corral’s claim that he was with Taylor when the fire started does not render

13

his admissions inculpatory because Corral is unreliable and his statements to police

14

regarding Taylor would have carried little weight. (Doc. 384 at 12-13.)

15

In his TAC, Plaintiff alleges that Anthony was a suspect in three fires that

16

occurred shortly before December 1970 at the Pioneer Hotel but that he “was never

17

questioned and there is no record that the possibility of his involvement” in the December

18

30, 1970 “fire was ever investigated.” (Doc. 169 at 3.) The TAC does not allege that

19

Defendants failed to disclose evidence that Anthony was a suspect in Taylor’s case; in

20

fact, its allegation that Defendants failed to investigate Anthony as a suspect is at odds

21

with that allegation. The TAC’s reference to three prior fires appears to stem from the

22

October 9, 1970 letter, but the TAC does not specifically mention the letter or allege a

23

failure to disclose it. The TAC does not mention Corral or allege that Defendants failed

24

to disclose evidence that Corral was a suspect.

25

A plaintiff cannot add an entirely new theory of liability at the summary judgment

26

stage, as doing so would prejudice the defendants, who rely on the complaint for “notice

27

of the evidence [they] need[] to adduce in order to defend against the plaintiff’s

28

allegations.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292 (9th Cir. 2000). The

- 45 -

1

Court finds that the TAC’s allegations are not sufficient to put Defendants on notice of

2

Plaintiff’s theory that Defendants violated his constitutional rights by failing to disclose

3

evidence of other suspects.29

4

f. Testimony of Claus Bergman

5

Plaintiff argues that Defendants violated his constitutional rights under Brady by

6

suppressing Bergman’s exculpatory testimony, including his testimony that Taylor was

7

inside the Pioneer Hotel the night of the fire because Bergman directed him to go inside

8

to help with the rescue efforts; that it was normal for Taylor, who smoked, to possess

9

matches; that Bergman believed Taylor was innocent; and that Taylor was held at gun

10

point at the police station. (Doc. 349 at 2-4, 8-10.) Pima County argues that the TAC

11

does not allege that Defendants violated Plaintiff’s constitutional rights under Brady by

12

failing to disclose Bergman’s testimony, and that Plaintiff cannot insert the issue into the

13

case at the summary-judgment stage. (Doc. 373 at 3-4.) Defendants also argue that they

14

cannot have violated Brady by failing to disclose testimony that Bergman gave in 2022,

15

that Bergman’s deposition was taken to preserve his testimony for trial and Plaintiff

16

therefore should not be allowed to rely on the deposition testimony for purposes of

17

summary judgment, and that Bergman’s deposition testimony is incredible and a sham.

18

(Doc. 364 at 19-20; Doc. 373 at 6-7; Doc. 386 at 17 & n.20.) Plaintiff contends that

19

Defendants were aware of Bergman’s exculpatory testimony prior to Taylor’s 1972 trial,

20

and he disputes the contention that the deposition testimony is a sham. (Doc. 384 at 9-

21

11.)

22

The Court rejects the argument that Plaintiff should be precluded from relying on

23

Bergman’s deposition testimony for purposes of summary judgment because the

24

deposition was a trial deposition. (Doc. 386 at 17 n.20.) While it is true that Plaintiff

25

sought leave to preserve Bergman’s testimony for trial (Doc. 303), this Court found good

26

29

27
28

The Court also notes that the record of Taylor’s trial proceedings indicates Kashman
possessed the October 9, 1970 letter prior to trial (see Doc. 339-5 at 196-201); that
Plaintiff has not identified any police reports or other documents showing that Anthony
was investigated as an alternative suspect; and that police records indicate Taylor
identified Corral in 1970 as a suspect, and Corral implicated Taylor as a guilty party (see
Doc. 333-10 at 79-84).
- 46 -

1

cause to re-open discovery for the purpose of allowing Bergman’s deposition, without

2

limiting the purposes for which Plaintiff could use the deposition (Doc. 313). The Court

3

also declines to disregard Bergman’s deposition testimony as a sham. The sham affidavit

4

rule applies when a party attempts to create a genuine issue of material fact by submitting

5

an affidavit that contradicts his or her own prior testimony. Yeager, 693 F.3d at 1080.

6

The rationale underlying the rule “is that a party ought not be allowed to manufacture a

7

bogus dispute with himself to defeat summary judgment.” See Nelson v. City. of Davis,

8

571 F.3d 924, 928 (9th Cir. 2009) (emphasis in original). The Court finds the sham

9

affidavit rule does not apply to Plaintiff’s use of Bergman’s deposition testimony. See id.

10

Furthermore, Bergman explains the differences between his deposition testimony and the

11

testimony he gave during Taylor’s criminal proceedings, namely, that he was threatened

12

with firing and jail if he provided exculpatory testimony during the criminal proceedings.

13

(See Doc. 343-15 at 22-23); see Van Asdale, 577 F.3d at 999 (sham affidavit rule does

14

not preclude a party from “elaborating upon, explaining or clarifying prior testimony”).

15

Accordingly, the Court finds that Plaintiff may rely on Bergman’s deposition testimony

16

in support of his existing claims, both at summary judgment and at trial.

17

However, Plaintiff cannot assert a new theory of liability that Defendants violated

18

his constitutional rights by failing to disclose Bergman’s exculpatory testimony prior to

19

Taylor’s 1972 trial. Plaintiff did not allege in his TAC that Defendants violated his

20

constitutional rights by failing to disclose exculpatory testimony from Bergman. Plaintiff

21

learned of Bergman’s exculpatory testimony after the close of discovery in this case, and

22

he did not move to amend his TAC to assert new claims based on the testimony.

23

Defendants were not on notice of Plaintiff’s Brady claim concerning Bergman’s

24

testimony prior to the summary judgment stage, and they did not have an opportunity to

25

conduct discovery regarding it.

26

g. Other Prosecutorial Misconduct Claims

27

Plaintiff argues that Weiss engaged in improper trial conduct that increased the

28

impact of the prosecution’s Brady violations. (Doc. 349 at 12-16.) Specifically, Plaintiff

- 47 -

1

argues that Weiss disclosed inflated witness lists that prevented the defense from

2

preparing for trial; that he made an excessive number of improper objections and

3

interruptions during trial; that he engaged in ex parte communications with the trial

4

judge; that his investigator Angeley engaged in ex parte contact with at least one and

5

possibly two dismissed jurors; that he delayed presenting and arguing Robert’s testimony

6

to prevent the defense from adequately responding; and that he was racist. (Id. at 12-19.)

7

Pima County disputes Plaintiff’s factual contentions and argues that Plaintiff fails to

8

identify any specific prejudice resulting from the alleged prosecutorial misconduct.

9

(Doc. 373 at 11; see also Doc. 374 at ¶¶ 69-107.) Pima County further argues that

10

Plaintiff did not raise these allegations of prosecutorial misconduct in his TAC. (Doc.

11

373 at 3-4.)

12

Plaintiff’s TAC alleges that Weiss engaged in unethical and unconstitutional

13

prosecutorial misconduct before, during, and after his 1972 trial. (Doc. 169 at 20.) The

14

TAC asserts that Weiss was under pressure to ensure Taylor was convicted, and that he

15

knew there was insufficient evidence if Taylor was given a fair trial. (Id. at 7.) The TAC

16

alleges that Defendants violated Brady by failing to disclose the Truesdail Report, and

17

that Defendants called Robert to testify near the end of the trial when the testimony

18

would have a greater impact on the jury, despite knowing Robert’s testimony was

19

contradicted by the Truesdail Report. (Id. at 7-8.) The TAC further alleges that Weiss

20

had a history of unethical and overzealous behavior, including committing Brady and

21

Giglio violations, and making frequent, baseless interruptions. (Id. at 5-6.) Although the

22

TAC does not specifically allege that the prosecution inflated its witness lists and

23

engaged in ex parte communications with the trial judge or dismissed jurors, these

24

allegations were known to Defendants because they were included in Taylor’s 2012

25

Petition for Post-Conviction Relief, which is specifically mentioned in Taylor’s TAC.

26

(See Doc. 169 at 9; Doc. 348-3.) Under the circumstances, the Court finds that the TAC

27

is sufficient to put Defendants on notice of Plaintiff’s theory that Weiss’s other

28

prosecutorial misconduct increased the prejudice from his Brady violations.

- 48 -

1

As discussed above, there are material disputes of fact concerning whether Weiss

2

violated Taylor’s constitutional rights under Brady. Furthermore, a reasonable jury could

3

find, based on the transcript of Taylor’s 1972 trial and other record evidence, that Weiss

4

committed prosecutorial misconduct by excessively objecting and interrupting during

5

trial, delaying the presentation of and argument concerning Robert’s testimony, inflating

6

the prosecution’s witness lists, and engaging in ex parte communications with the trial

7

judge and a dismissed juror. (See, e.g., Doc. 333-3 at 193-196; Doc. 333-4 at 1-7; Doc.

8

346-4; Doc. 347-1.) A reasonable juror could also find that Weiss’s other challenged trial

9

conduct increased the prejudicial effect of his disclosure violations. See Parle v. Runnels,

10

505 F.3d 922, 928 (9th Cir. 2007) (“the combined effect of multiple trial errors may give

11

rise to a due process violation if it renders a trial fundamentally unfair”).

12

h. Conspiracy

13

Defendants argue that Plaintiff has presented no evidence to demonstrate that

14

Pima County and the City of Tucson had a unity of purpose or common design and

15

understanding to violate Taylor’s constitutional rights. (Doc. 351 at 25; Doc. 364 at 6;

16

Doc. 383 at 13; Doc. 386 at 14-15.) Plaintiff argues that there is evidence that Weiss and

17

TPD officers conspired to suppress Bergman’s testimony, withhold the Truesdail Report

18

and information about alternative suspect Anthony, and present false testimony from

19

Robert and Wallmark. (Doc. 366 at 14-16; Doc. 384 at 4-5.)

20

“A civil conspiracy is a combination of two or more persons who, by some

21

concerted action, intend to accomplish some unlawful objective for the purpose of

22

harming another which results in damage.” Lacey v. Maricopa Cnty., 693 F.3d 896, 935

23

(9th Cir. 2012) (internal quotation omitted). To prove a civil conspiracy, a plaintiff must

24

show “an underlying constitutional violation,” id., and “an agreement or meeting of the

25

minds to violate constitutional rights,” Mendocino Envtl. Ctr. v. Mendocino Cnty., 192

26

F.3d 1283, 1301 (9th Cir. 1999) (internal quotation marks omitted); see also Gilbrook v.

27

City of Westminster, 177 F.3d 839, 856 (9th Cir. 1999) (plaintiff must “show that the

28

conspiring parties reached a unity of purpose or a common design and understanding, or

- 49 -

1

a meeting of the minds in an unlawful arrangement” (internal quotation marks omitted)).

2

A plaintiff may prove an agreement or meeting of the minds through circumstantial

3

evidence. Mendocino, 192 F.3d at 1301. “Whether defendants were involved in an

4

unlawful conspiracy is generally a factual issue and should be resolved by the jury, so

5

long as there is a possibility that the jury can infer from the circumstances that the alleged

6

conspirators had a meeting of the minds and thus reached an understanding to achieve the

7

conspiracy’s objectives.”

8

omitted).

Id. at 1301-02 (internal quotation and alteration marks

9

Here, a reasonable jury could find that the City of Tucson and Pima County

10

reached an agreement to violate Taylor’s constitutional rights by suppressing the

11

Truesdail Report and by procuring false testimony from jailhouse informants while

12

failing to disclose the circumstances under which the testimony was procured.

13

reasonable jury could infer from the phone conversation between Miller and Gilmore that

14

both the City of Tucson and Pima County knew of the Truesdail Report and conspired to

15

suppress it. (See Doc. 343-9.) A reasonable jury could also infer from the statements of

16

Robert and Albert Jackson that officials from both the City of Tucson and Pima County

17

conspired to procure false testimony from Wallmark and Jackson and failed to disclose

18

the circumstances by which they procured the testimony. (See Doc. 347-7; Doc. 347-8.)

19

A

2. Municipal Liability

20

A municipality may be liable under 42 U.S.C. § 1983 “if the governmental body

21

itself subjects a person to a deprivation of rights or causes a person to be subjected to

22

such a deprivation.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (internal quotation

23

marks omitted). “Respondeat superior or vicarious liability will not attach under §

24

1983.” City of Canton v. Harris, 489 U.S. 378, 385 (1989). The municipality, “through

25

its deliberate conduct,” must be “the moving force” behind the constitutional injury at

26

issue.

27

(emphasis in original).

28

Bd. of Cnty. Comm’rs of Bryan Cnty. v Brown, 520 U.S. 397, 404 (1997)

Because a municipality can be held responsible under § 1983 only where the

- 50 -

1

municipality itself causes the constitutional violation at issue, plaintiffs seeking to impose

2

§ 1983 liability on local governments must show that the challenged acts were taken

3

“‘pursuant to official municipal policy,’” Connick, 563 U.S. at 60 (quoting Monell, 436

4

U.S. at 691).

5

lawmakers, the acts of its policymaking officials, and practices so persistent and

6

widespread as to practically have the force of law.” Id. at 61.

7

“Official municipal policy includes the decisions of a government’s

a. Count One

8

Count One of the TAC raises a claim against the City of Tucson based on a

9

custom and practice of racial discrimination. (Doc. 169 at 11-16.) In its Motion for

10

Summary Judgment, the City of Tucson argues that, even if Taylor could show that a

11

City of Tucson employee violated his constitutional rights in the 1970s, he still cannot

12

establish Monell liability because he has no evidence that the City of Tucson had a

13

racially discriminatory custom, policy, or practice that caused his alleged constitutional

14

deprivations. (Doc. 332 at 22-25.) In response, Plaintiff contends that there is sufficient

15

evidence that the City of Tucson had policies of racial discrimination at the time of

16

Taylor’s arrest, relying upon: (1) the opinions of his police practices expert Dr. Tommy

17

Tunson; (2) an affidavit by attorney Rubin Salter, Jr.; (3) evidence that Holmes told his

18

racist profiling opinions to City of Tucson officials, who accepted the opinions; and (4)

19

the statements of Robert and Albert Jackson. (Doc. 371 at 19-22.) The City of Tucson

20

indicates it will move in limine to exclude the testimony of Salter and Tunson, and the

21

admission of hearsay documents, at trial. (Doc. 383 at 3 n.2.) The City of Tucson also

22

argues that, even if Plaintiff’s evidence is assumed sufficient, for purposes of summary

23

judgment, to establish a policy of racial discrimination, the existence of a policy alone is

24

insufficient to establish Monell liability, and this case does not involve any of the

25

scenarios in which a municipality may be held liable for a single incident under Monell.

26

(Id. at 2-3.)

27

Assuming the admissibility at trial of the statements of Robert and Albert Jackson

28

and the testimony of Tunson and Salter, the Court finds there are material factual disputes

- 51 -

1

concerning whether the City of Tucson had a longstanding practice or custom of racial

2

discrimination. Tunson opines that the City of Tucson police and fire departments had

3

informal policies of racial discrimination at the time of Taylor’s arrest and prosecution,

4

although the Court notes that Tunson’s expert report consists of little more than

5

summaries of evidence in this case accompanied by legal conclusions. (See Doc. 343-

6

14.)

7

Attorney from 1964-1966 and the U.S. Attorney from 1967-1969 before entering private

8

practice, avers in an affidavit that he had frequent contact with TPD officers around the

9

time of Taylor’s arrest, and that “the City of Tucson Police Department engaged in

10

pervasive racially discriminatory law enforcement practices.” (Doc. 372-2 at 3.) As

11

discussed above, Albert Jackson’s August 30, 1972 statement indicates TPD officers used

12

racially derogatory language when threatening Robert and Wallmark with imprisonment,

13

and City of Tucson officials continued to employ Holmes after he informed them of his

14

racist profiling opinions. (See Doc. 340-10 at 84-87; Doc. 347-7.) Finally, Bergman

15

testified that Taylor was targeted as a suspect because he was “the wrong color.” (Doc.

16

343-15 at 26.)

Salter, an African-American lawyer who was employed by the Pima County

17

A reasonable jury could find that the City of Tucson’s persistent, widespread

18

practice of racial discrimination was the moving force behind Taylor’s alleged

19

constitutional violations, including Brady violations arising from the failure to disclose

20

Holmes’s racism and the racist threats used to procure Robert and Wallmark’s testimony.

21

Furthermore, Holmes’s testimony supports a finding that City of Tucson officials with

22

final policymaking authority were aware of Holmes’s racist profiling opinions, continued

23

to employ him, and did not disclose his racism to the defense. Accordingly, the jury may

24

find that action taken by the City of Tucson’s authorized decisionmakers violated

25

Taylor’s due process rights to a fair trial and his rights under Brady. See Bd. of Cnty.

26

Comm’rs of Bryan Cnty., 520 U.S. at 405 (municipal action is the moving force behind

27

the plaintiff’s injury if “the action taken or directed by the municipality or its authorized

28

decisionmaker itself violates federal law”); see also Christie v. Iopa, 176 F.3d 1231, 1235

- 52 -

1

(9th Cir. 1999) (single-incident liability under Monell can be established through proof

2

that the person causing the constitutional violation had final policymaking authority).

3

Because there are material disputes of fact concerning whether the City of Tucson

4

can be held liable under Monell for Plaintiff’s alleged constitutional violations, the Court

5

denies the City of Tucson’s Motion for Summary Judgment with respect to Count One of

6

the TAC.

7

b. Count Two

8

Count Two of the TAC raises a claim against Pima County based on a custom and

9

practice of racial discrimination. (Doc. 169 at 16-18.) Plaintiff has abandoned Count

10

Two. (Doc. 367 ¶¶ 714, 716-717.) Accordingly, the Court will grant summary judgment

11

in Pima County’s favor on Count Two.

12

c. Counts Three and Four

13

In Counts Three and Four of the TAC, Plaintiff alleges that Pima County failed to

14

properly train and supervise deputy county attorneys, and that Pima County had a custom

15

of deliberate indifference to prosecutorial misconduct, as shown by its continued

16

employment of Weiss. (Doc. 169 at 18-20.) Pima County argues that it is entitled to

17

summary judgment on Count Three of the TAC because there is no evidence Pima

18

County had a constitutionally deficient training program, no evidence Pima County

19

disregarded a known or obvious consequence of any deficiency in its training program,

20

no evidence that any deficiency in training caused Taylor’s alleged constitutional

21

violations, and no evidence of a pattern of similar constitutional violations by untrained

22

employees. (Doc. 351 at 22.) Pima County further argues it is entitled to summary

23

judgment on Count Four of the TAC because there is no evidence it was deliberately

24

indifferent to the risk that failing to terminate Weiss would result in constitutional

25

violations similar to those alleged by Plaintiff. (Id. at 22-23.)30

26

30

27
28

Pima County further argues that Pacheco’s opinions are impermissible legal
arguments; that Pima County had no authority to terminate Weiss’s employment or train
and supervise prosecutors in the Pima County Attorney’s Office; that Plaintiff cannot
prove Weiss violated his constitutional rights; that Plaintiff’s claims are barred by this
Court’s Heck ruling; that Plaintiff’s claimed constitutional violations and legal challenges
to Weiss’s conduct have been rejected by state and federal courts; and that Plaintiff did
- 53 -

1

Plaintiff argues that Weiss’s prior misconduct and ethical violations were so

2

widespread and well-known that a reasonable jury could find that Pima County was

3

deliberately indifferent. (Doc. 366 at 3-4.) In support of this argument, Plaintiff relies on

4

Pacheco’s testimony and appellate opinions criticizing Weiss. (Id. at 4-11.) Plaintiff

5

further argues that Pima County had no training program, that its failure to train and

6

supervise Weiss caused violations of Taylor’s constitutional rights and deprived him of a

7

fair trial, and that Pima County’s pattern of deliberate indifference to prosecutorial

8

misconduct under former Pima County Attorney LaWall’s administration continued

9

through at least 2013. (Id. at 3, 11-14.) In reply, Pima County contends that appellate

10

decisions issued after Taylor’s 1972 trial cannot prove Pima County was on notice of

11

Weiss’s misconduct, that Weiss’s alleged prior misconduct is not closely related to

12

Taylor’s alleged constitutional violations, that Taylor has no evidence Pima County was

13

aware of any deficiency in training, and that Dingledine’s undisputed good reputation

14

reflects an adequate training program. (Doc. 386 at 6-13.)

15

If a plaintiff seeks “to establish municipal liability on the theory that a facially

16

lawful municipal action” led to a municipal employee violating the plaintiff’s rights, then

17

the plaintiff “must demonstrate that the municipal action was taken with deliberate

18

indifference” to the constitutional rights of individuals with whom municipal employees

19

come into contact. Bd. of Cnty. Comm’rs of Bryan Cnty., 520 U.S. at 407 (internal

20

quotation marks omitted).

21

inadequate training and supervision, and inadequate personnel decisions. See City of

This deliberate indifference standard governs claims for

22
23
24
25
26
27
28

not raise all of his allegations of prosecutorial misconduct in his TAC. (Doc. 351 at 2223; Doc. 386 at 4-6, 11-14.) The Court addressed the argument concerning Pacheco
when resolving Pima County’s Motion in Limine to preclude Pacheco’s opinions. (Doc.
567 at 7-8.) The other arguments are addressed above. Specifically, the Court finds that
the Pima County Attorney acted as a county official with respect to the personnel and
training decisions at issue; that issue preclusion is inapplicable; that the Heck bar will be
lifted if the jury finds expungement of Taylor’s 2013 convictions appropriate; that the
TAC sufficiently alleges Brady violations arising from evidence of Holmes’s racist
beliefs and the circumstances by which Defendants procured the testimony of Robert and
Wallmark, and sufficiently alleges that Weiss’s other prosecutorial misconduct increased
the prejudice from the Brady violations; and that there are material factual disputes
concerning whether Weiss violated Taylor’s constitutional rights.
- 54 -

1

Canton, 489 U.S. at 388 (inadequate training); Davis v. City of Ellensburg, 869 F.2d

2

1230, 1235 (9th Cir. 1989) (inadequate supervision); Benavides v. Cnty. of Wilson, 955

3

F.2d 968, 974-75 (5th Cir. 1992) (inadequate hiring).

4

stringent standard of fault, requiring proof that a municipal actor disregarded a known or

5

obvious consequence of his action.” Connick, 563 U.S. at 61 (internal quotation and

6

alteration marks omitted).

“Deliberate indifference is a

7

In addition to establishing deliberate indifference, a plaintiff seeking to hold a

8

municipality liable under § 1983 for inadequate employee training must show that the

9

constitutional injury that he suffered is “closely related” to an “identified deficiency” in

10

the municipality’s training program. City of Canton, 489 U.S. at 388, 391. Furthermore,

11

“[a] pattern of similar constitutional violations by untrained employees is ordinarily

12

necessary to demonstrate deliberate indifference for purposes of failure to train.”

13

Connick, 563 U.S. at 62 (internal quotation marks omitted). However, “in a narrow range

14

of circumstances,” the “unconstitutional consequences of failing to train” may be “so

15

patently obvious” that a municipality “could be liable under § 1983 without proof of a

16

pre-existing pattern of violations.” Id. at 64.

17

A reasonable jury could find that Pima County was aware of Weiss’s tendency to

18

violate the constitutional rights of criminal defendants. Prior to Taylor’s trial, at least

19

four appellate opinions criticized Weiss by name, and he had been sentenced to jail for

20

criminal contempt of court. See Arizona v. Shook, 404 P.2d 724, 727 (Ariz. App. 1965)

21

(noting that Weiss “was severely admonished by the trial court on several occasions” for

22

his frequent objections and “threatened with a jail sentence”); Arizona v. Chaney, 428

23

P.2d 1004, 1009 (Ariz. App. 1967) (finding that Weiss “was guilty of improper conduct”

24

in that he “actively discouraged” police officers from discussing the case with defense

25

counsel, which “is inconsistent with the role of a prosecuting attorney”); Arizona v.

26

Lenahan, 471 P.2d 748, 750 (Ariz. App. 1970) (noting the trial court had “reprimanded

27

Mr. Weiss for making insinuating comments and trying to take over the courtroom”);

28

Arizona v. Mercer, 473 P.2d 803, 806 (1970) (“The over-zealous tactics of Mr. Weiss are

- 55 -

1

well known to this court and have been the subject of other appeals.”); Weiss v. Superior

2

Ct. of Pima Cnty., 480 P.2d 3, 4-7 (Ariz. 1971) (discussing five criminal contempt

3

convictions and a jail sentence stemming from Weiss’s trial conduct, and rejecting

4

Weiss’s contention that insufficient evidence supported the contempt convictions).

5

Shortly after Taylor’s trial, the Arizona Supreme Court reversed and remanded a matter

6

for a new trial based on “outrageous and improper” conduct by Mr. Weiss. Arizona v.

7

Moore, 495 P.2d 445, 452 (Ariz. 1972). The “outrageous and improper” conduct at issue

8

in Moore appears to have pre-dated Taylor’s trial. It also appears that Weiss had been

9

accused of Brady violations before or near the time of Taylor’s trial. See, e.g., Arizona v.

10

Skinner, 515 P.2d 880, 892 (Ariz. 1973). Pacheco opines that any prosecutor’s office

11

with which he is familiar would immediately note and act upon a published appellate

12

opinion criticizing a prosecutor by name. (Doc. 343-7 at 18-19; see also Doc. 567.)

13

Furthermore, Salter avers that during his employment at the Pima County Attorney’s

14

Office, he knew Weiss to push ethical limits and sometimes exceed them. (Doc. 372-2 at

15

3.)

16

Based on Weiss’s pattern of unconstitutional trial conduct and the lack of evidence

17

of any training program for deputy county attorneys, a reasonable jury could find that

18

Pima County was deliberately indifferent to the risk that its failure to train and supervise

19

deputy county attorneys and to terminate Weiss’s employment would result in the

20

violation of criminal defendants’ constitutional rights. A reasonable jury could also find

21

that Taylor’s alleged constitutional injuries were caused by Pima County’s deliberate

22

indifference.

23

Judgment with respect to Counts Four and Five of the TAC.

24

Accordingly, the Court denies Pima County’s Motion for Summary

d. Count Five

25

Count Five of the TAC raises a claim of civil conspiracy against Pima County and

26

the City of Tucson, alleging that co-conspirators improperly arrested, charged, and

27

prosecuted Plaintiff; deliberately withheld exculpatory evidence, and suborned false

28

testimony from Robert and Wallmark. (Doc. 169 at 21-24.) Pima County argues that

- 56 -

1

Plaintiff must present evidence that Defendants had a policy or practice of conspiring to

2

violate criminal Defendants’ constitutional rights in order to establish municipal liability

3

on his conspiracy claim, and that no such evidence exists. (Doc. 351 at 24-25; Doc. 386

4

at 14.) Plaintiff argues he need only establish an underlying Monell violation and a unity

5

of purpose to accomplish an unlawful goal, because conspiracy is not itself a

6

constitutional tort under § 1983. (Doc. 366 at 15.)

7

Pima County relies in its Motion on Baca v. Callahan, No. CV–10–00885–PHX–

8

GMS, 2011 WL 3759480 (D. Ariz. Aug. 25, 2011) and Gibson v. United States, 781 F.2d

9

1334 (9th Cir. 1986), abrogated on other grounds by United States v. Wong, 575 U.S.

10

402 (2015), Egbert v. Boule, 596 U.S. 482 (2022). (Doc. 351 at 24.) In Gibson, the

11

plaintiff alleged a “long-lasting conspiracy” to violate their civil rights and named as

12

defendants the United States of America, the City of Los Angeles, and individual agents

13

of the Federal Bureau of Investigation and the Los Angeles Police Department. 781 F.2d

14

at 1337. The Ninth Circuit upheld the district court’s dismissal of the City of Los

15

Angeles, finding that the plaintiff “failed to attribute the alleged tortious acts of city

16

agents to an established city policy or procedure” and therefore did “not allege facts

17

sufficient to satisfy the Monell predicate for municipal liability.” Id. at 1337-38. The

18

Ninth Circuit did not specifically hold that a § 1983 plaintiff asserting a conspiracy claim

19

against a municipality must establish a policy or practice of conspiring to violate

20

individuals’ constitutional rights. Similarly, in Baca, the district court dismissed a § 1983

21

conspiracy claim against a county based on the plaintiff’s failure to allege sufficient facts

22

to establish municipal liability, but the court did not specifically hold that a § 1983

23

plaintiff asserting a conspiracy claim against a municipality must establish a policy or

24

practice of conspiring to violate individuals’ constitutional rights.

25

3759480, at *4. The non-binding cases cited by Pima County in its Reply likewise do not

26

adequately support its position that a § 1983 plaintiff asserting a conspiracy claim against

27

municipalities must establish a pattern or practice of conspiring to violate individuals’

28

constitutional rights. (See Doc. 386 at 14.)

- 57 -

See 2011 WL

“Conspiracy is not itself a constitutional tort under § 1983.” Lacey, 693 F.3d at

1

Alleging a conspiracy may “enlarge the pool of responsible defendants by

2

935.

3

demonstrating their causal connections” to an alleged constitutional violation, but a

4

conspiracy allegation “does not enlarge the nature of the claims asserted by the plaintiff,

5

as there must always be an underlying constitutional violation.” Id. Because conspiracy

6

is not itself a constitutional tort, the Court agrees with Plaintiff’s position that a § 1983

7

plaintiff asserting a conspiracy claim against municipalities must establish Monell

8

liability with respect to the underlying constitutional violations at issue but need not

9

allege a pattern or practice of entering into conspiracies.

10

As discussed above, a reasonable jury could find that the City of Tucson and Pima

11

County reached an agreement to violate Taylor’s constitutional rights by suppressing the

12

Truesdail Report and procuring false testimony from jailhouse informants. A reasonable

13

jury could also find that the City of Tucson’s pattern and practice of racial discrimination

14

and Pima County’s deliberate indifference to criminal defendants’ constitutional rights

15

were the moving forces behind these constitutional violations. Proof of a pattern or

16

practice of conspiring to violate criminal defendants’ constitutional rights is not required.

17

Accordingly, the Court denies Defendants’ Motions for Summary Judgment with respect

18

to Count Five.

19

IT IS ORDERED that the under-advisement portion of Plaintiff’s Motion in

20

Limine to Preclude the Testimony of Holmes (Doc. 397) is denied to the extent the Court

21

declines to rule on whether Holmes’s testimony is admissible under Daubert for the

22

purpose of proving that the Pioneer Hotel fire was arson.

23

IT IS FURTHER ORDERED withdrawing as an unnecessary ruling the

24

following portion of the Court’s Order on Plaintiff’s Motion in Limine re: Prior

25

Testimony of Robert Jackson: Doc. 566 at 4:18 to 5:5, including footnotes.

26

IT IS FURTHER ORDERED withdrawing as an unnecessary ruling the

27

following portion of the Court’s Order on Plaintiff’s Motion in Limine re: Cyrillis

28

Holmes: Doc. 569 at 4:2-13.

- 58 -

IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment

1
2

(Doc. 349) and Cross-Motion for Summary Judgment (Doc. 371) are denied.
IT IS FURTHER ORDERED that Defendants’ Motions for Summary Judgment

3
4

(Docs. 332, 351) are granted in part and denied in part, as follows:

5

1. Defendant City of Tucson’s Motion for Summary Judgment (Doc. 332) is

6

denied to the extent it seeks dismissal of Counts One and Five of the Third

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Amended Complaint.

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2. Defendant Pima County’s Motion for Summary Judgment (Docs. 351) is

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granted with respect to Count Two of the Third Amended Complaint but

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denied with respect to Counts Three, Four, and Five.

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3. Counts One, Three, Four, and Five of the Third Amended Complaint

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remain at issue in this case; however, Plaintiff cannot premise the claims on

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underlying Brady violations arising from a failure to disclose evidence of

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other suspects or a failure to disclose exculpatory testimony from Claus

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Bergman.

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alleged unlawfulness of his arrest and interrogation.

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Furthermore, Plaintiff cannot obtain damages based on the

IT IS FURTHER ORDERED that the parties shall file a Joint Proposed Pretrial
order within thirty (30) days of the date this Order is filed.

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IT IS FURTHER ORDERED that, on or before February 16, 2024, the parties

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shall submit a stipulated description of the case and fifteen (15) stipulated juror

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questionnaire questions.

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IT IS FURTHER ORDERED that motions in limine and Daubert motions are

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due on or before March 4, 2024. Responses are due on or before March 18, 2024. No

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replies shall be permitted absent leave of Court.

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Dated this 19th day of January, 2024.

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