Clark v. Louisville Jefferson County Metro Government et al

Filing 390

MEMORANDUM OPINION AND ORDER Signed by Chief Judge Greg N. Stivers on 1/4/2024. Plaintiffs' Motion to Exclude the Opinions and Testimony of Defendants Expert Witness Jack Reid DN 293 is DENIED. Defendant's Motion for Summary Judg ment DN 292 is GRANTED IN PART and DENIED IN PART. Plaintiffs' Motions to Exclude the Opinions and Testimony of Defendant's Expert Dr. Julie Howenstine DN 291 and to Exclude Opinions Falsely Attributed to Dr. George Nichols DN 328 are DENIED AS MOOT in light of the dismissal of Hardin's fabrication of evidence claims against Thurman. cc: Counsel (DeW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:17-CV-00419-GNS-CHL
JEFFREY DEWAYNE CLARK; and
GARR KEITH HARDIN

PLAINTIFFS

v.
LOUISVILLE-JEFFERSON COUNTY
METRO GOVERNMENT, KENTUCKY et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant Mark Thurman’s Motion for Summary
Judgment (DN 292) and Plaintiffs’ Motion to Exclude the Opinions and Testimony of Defendant’s
Expert Witness Jack Reid (DN 293). The motions are ripe for adjudication. For the reasons below,
Defendant’s motion is GRANTED IN PART and DENIED IN PART, and Plaintiffs’ motion is
DENIED.
I.

SUMMARY OF THE FACTS

Plaintiffs Jeffrey Dewayne Clark (“Clark”) and Garr Keith Hardin (“Hardin”) (jointly
“Plaintiffs”) initiated this civil rights action against Defendant Robert Thurman (“Thurman”) in
his individual capacity, and others.1 (Am. Compl. ¶¶ 176-267, DN 38; Am. Compl. ¶¶ 176-267,
DN 39 [collectively hereinafter Am. Compls.]).

1

Defendants James Clark, Kelly Jones, Robert Ennis, Charles Edelen, James Griffiths, and Ernie
Embry previously have been dismissed from this action. (See Am. Agreed Order, DN 275; Agreed
Order, DN 283; Agreed Order, DN 284; Agreed Order, DN 325; Agreed Order, DN 331).

The events giving rise to this matter began with the 1992 murder of Rhonda Sue Warford
(“Warford”), who was found stabbed to death in Meade County, Kentucky, after disappearing from
Louisville. (Am. Compls. ¶ 40). Detective Mark Handy (“Handy”) and the Louisville Police
Department (“LPD”) jointly investigated the murder alongside the Meade County Sheriff’s Office
and Sheriff Joseph Greer (“Greer”). (Am. Compls. ¶ 46). Handy, Meade County, and LouisvilleJefferson County Metro Government, as successor to LPD’s interests,2 are also Defendants. (Am.
Compls. ¶¶ 26-34). Plaintiffs were investigated as suspects, and Handy purportedly directed the
investigation to fit his theorized motive that Plaintiffs committed the murder as part of a satanic
ritual.3 (Am. Compls. ¶¶ 51-112).
During the investigation, Hardin’s home was searched, and police discovered a
bloodstained handkerchief which Hardin claimed was from a cut he sustained when cleaning up a
broken wine glass. (Am. Compls. ¶ 61). Thurman, a forensic serologist with the Kentucky State
Police, tested the handkerchief and confirmed only that the stain was blood without a determination
whether animal or human. (Am. Compls. ¶ 63). Plaintiffs contend that Thurman falsely reported
that no further testing could be conducted on the handkerchief, when in fact Thurman either: (1)
tested the blood to determine whether the blood was human, concluded it was, and suppressed the
result because it contradicted Handy’s theory of the blood being from animal sacrifices; or (2)
deliberately failed to test whether the blood was human to avoid undermining Handy’s theory.

The City of Louisville merged with Jefferson County in January 2003 to create the LouisvilleJefferson County Metro Government, which “is the post-merger successor to the City of
Louisville . . . .” Metro Louisville/Jefferson Cnty. Gov’t v. Abma, 326 S.W.3d 1, 14 (Ky. App.
2009) (citation omitted). LPD also merged with the Jefferson County Police Department to create
the Louisville Metro Police Department. See Killary v. Thompson, No. 2020-CA-0194-MR, 2022
Ky. App. LEXIS 63, at *2 n.1 (Ky. App. June 24, 2022).
3
Hardin acknowledges that he previously “practiced modern Satanism” but states that this belief
“forbids blood sacrifice and killing of any kind.” (Am. Compls. ¶¶ 52, 55).
2

2

(Am. Compls. ¶¶ 63-64). Moreover, Plaintiffs assert that Thurman falsely reported a hair
recovered from Warford’s clothing was a “match” to Hardin. (Am. Compls. ¶¶ 97-99).
Plaintiffs were indicted in May 1993, convicted by jury, and sentenced to life
imprisonment. (Am. Compls. ¶¶ 116, 124). The prosecution purportedly relied on Handy’s satanic
ritual theory and representations that the bloody handkerchief was from animal sacrifices and that
Hardin was the source of a hair found on Warford’s body, which were based on Thurman’s testing.
(Am. Compls. ¶¶ 65, 101, 117-24). Plaintiffs unsuccessfully sought relief through direct appeals
and post-conviction proceedings. (Am. Compls. ¶¶ 125-26); see Clark v. Commonwealth, Nos.
95-SC-453-MR, 96-SC-146-TG, 1997 Ky. Unpub. LEXIS 1 (Ky. Oct. 2, 1997); Clark v.
Commonwealth, No. 2003-CA-001184-MR, 2004 Ky. App. Unpub. LEXIS 720 (Ky. Dec. 3,
2004); Clark v. O’Dea, 257 F.3d 498 (6th Cir. 2001); Hardin v. Commonwealth, No. 95-SC-461MR, 1996 Ky. Unpub. LEXIS 1 (Ky. Aug. 29, 1996); Hardin v. Commonwealth, No. 2001-CA001782-MR, 2003 Ky. App. Unpub. LEXIS 1024 (Ky. App. May 16, 2003). In 2013, physical
evidence relating to Warford’s murder was released so DNA testing could be conducted. (Am.
Compls. ¶ 130); see Hardin v. Commonwealth, 396 S.W.3d 909 (Ky. 2013). Based on the testing,
Plaintiffs’ convictions were ultimately vacated and a new trial was ordered. (Am. Compls. ¶¶ 13133); see Commonwealth v. Clark, 528 S.W.3d 342 (Ky. 2017). The indictments were dismissed
in February 2018. (Am. Compls. ¶¶ 135-41; see Pls.’ Resp. Defs.’ Mot. Summ. J. Ex. 97, DN 31498; Pls.’ Resp. Defs.’ Mot. Summ. J. Ex. 100, DN 314-101).
Plaintiffs allege two claims against Thurman pursuant to 42 U.S.C. § 1983: (1) violation
of their rights to Due Process; and (2) violations of their Fourth, Fifth,4 and Fourteenth

4

Only Hardin alleges a Fifth Amendment violation. (See Am. Compl. ¶¶ 187-93, DN 38).
3

Amendments rights. (Pls.’ Resp. Def.’s Mot. Summ. J. 29-35, DN 316 [hereinafter Pls.’
Resp.]; Am. Compls. ¶¶ 176-93).5 Thurman moves for summary judgment in his favor. (Def.’s
Mot. Summ. J., DN 292).
II.

JURISDICTION

The Court exercises subject-matter jurisdiction over this matter through federal question
jurisdiction and supplemental jurisdiction over the state law claims. 28 U.S.C. §§ 1331, 1367(a).
III.

STANDARD OF REVIEW

Summary judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The party moving for summary judgment bears the burden of demonstrating the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If this lack of
material fact is established, the burden then shifts to the nonmoving party to present specific
evidence indicating a genuine issue of a disputed material fact essential to the case, beyond “some
metaphysical doubt.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986). Specifically, the nonmoving party must present facts demonstrating that a material factual
dispute must be presented to “a jury or judge to resolve the parties’ differing versions of the truth
at trial”; the evidence, however, is “not required to be resolved conclusively in favor of the party
asserting its existence . . . .” First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89
(1968). If the record taken as a whole could not support a finding of fact in favor of the nonmoving
party, the motion should be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

5

Plaintiffs initially alleged eight claims against Thurman but have abandoned all except for the
two mentioned above. (See Am. Compls. ¶¶ 194-203, 213-228, 249-267; Pls.’ Resp. 29 n.8). As
such, summary judgment is granted in Thurman’s favor as to the abandoned claims. See Brown v.
VHS of Mich., Inc., 545 F. App’x 368, 372 (6th Cir. 2013).
4

IV.
A.

DISCUSSION

Plaintiffs’ Motion to Exclude Jack Reid

During the investigation into Warford’s murder, Thurman examined four unknown hairs
discovered on Warford’s body and compared them against a hair sample provided by Hardin. (See
Am. Compls. ¶¶ 97-99). Thurman concluded in his report that one of the hairs was microscopically
similar to Hardin’s sample. (Am. Compl. ¶¶ 97-99; Pls.’ Resp. Def.’s Mot. Summ. J. Ex. 35, at 9,
DN 316-36 [hereinafter Lab Reports]). The unknown hairs were later subjected to DNA testing,
labelled Q1, Q2, Q3, and Q4; the slide preserving the hairs had a blue checkmark adjacent to Q1
and Q4.6 (Pls.’ Mot. Exclude Ex. A, at 2, DN 293-1; Pls.’ Mot. Exclude Ex. C, DN 293-3; Melton
Aff. ¶¶ 3-4, DN 293-2). Q2 and Q3 were entirely consumed by testing, but a 0.2-centimeter section
of Q1 and a 2-centimeter portion of Q4 remain. (Pls.’ Mot. Exclude Ex. A, at 2). DNA testing
excluded Plaintiffs as the sources of Q1, Q2, and Q4, but Q3 did not produce any results. (Pls.’
Mot. Exclude Ex. A, at 6-7).
Jack Reid (“Reid”), a supervisor at the Kentucky State Police Lab, reviewed Thurman’s
notes and report and compared the remaining segment of Q4 with the Hardin’s 1992 sample. (Pls.’
Mot. Exclude Ex. E, at 1-3, DN 293-5 [hereinafter Reid Report]). Reid opined that: (1)
“Thurman’s description in his notes of [Q4] . . . and the head hair standard collected from [] Hardin
was consistent with other trained hair analysts’ notes at the time the hairs were examined”; (2) he
“observed the microscopic characteristics listed in [] Thurman’s notes to be present in [Q4]”; (3)
he “observed the microscopic characteristics listed in [] Thurman’s notes to be present in the head
hair standard collected from [] Hardin”; and (4) he agreed with Thurman’s conclusion that Q4 and

6

Thurman previously testified in the criminal action that, when an evaluated hair appeared similar
in microscopic characteristics to the standard, he would place a blue checkmark next to the
evaluated hair as a reminder. (See Def.’s Reply Mot. Summ. J. Ex. 4, at 2, DN 339-4).
5

the sample from Hardin were similar in color and microscopic characteristics. (Reid Report 1).7
Plaintiffs move to exclude Reid’s opinions as irrelevant, unreliable, prejudicial, and inadmissible.
(Pls.’ Mot. Exclude 7-16, DN 293; see Pls.’ Mot. Exclude 3 (noting that Plaintiffs do not contest
Reid’s qualifications)).
Fed. R. Evid. 702 governs expert witness testimony, which is admissible if: (1) the expert
is qualified by knowledge, skill, experience, training, or education; (2) the testimony is relevant,
so it assists the jury in understanding the evidence or determining a fact in issue; and (3) the
testimony is reliable. In re Scrap Metal Antitrust Litig., 527 F.3d 517, 529 (6th Cir. 2008) (quoting
Fed. R. Evid. 702). Thus, courts act as gatekeepers to ensure conformity with these requirements.
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993).
The proffering party bears the burden of establishing the admissibility of expert testimony,
and “[a]ny doubts . . . should be resolved in favor of admissibility.” Commins v. Genie Indus.,
Inc., No. 3:16-CV-00608-GNS-RSE, 2020 U.S. Dist. LEXIS 43123, at *8 (W.D. Ky. Mar. 12,
2020) (alteration in original) (quoting Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 251 (6th
Cir. 2001); In re Scrap Metal Antitrust Litig., 527 F.3d at 530 (quoting Fed. R. Evid. 702 advisory
committee’s note to the 2000 amendment). “Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596 (citation omitted).

7

Reid also opined that “Thurman testified to his findings in an honest and accurate manner.” (Reid
Report 1). Plaintiffs have disclaimed Thurman’s trial testimony as a source of liability, so their
motion to exclude this opinion is denied as moot. (See Pls.’ Resp. 33 n.9).
6

1.

Hair Examination
a.

Relevance

Fed. R. Evid. 401 categorizes evidence as relevant if it “has any tendency to make a fact of
consequence in determining the action more or less probable,” with the phrase “any tendency”
indicating an “extremely liberal” standard. Frye v. CSX Transp., Inc., 933 F.3d 591, 598-99 (6th
Cir. 2019); see Cambio Health Sols., LLC v. Reardon, 234 F. App’x 331, 338 (6th Cir. 2007) (“The
Federal Rules of Evidence set a low bar for relevance.” (citation omitted)). “[A] piece of evidence
does not need to carry a party’s evidentiary burden in order to be relevant; it simply has to advance
the ball.” Dortch v. Fowler, 588 F.3d 396, 401 (6th Cir. 2009). Generally, relevant evidence is
admissible, subject to other evidentiary rules. See Fed. R. Evid. 402.
Evidence may be excluded if its probative value is substantially outweighed by the risk of
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needless
cumulative evidence. Fed. R. Evid. 403. “In order to exclude evidence under Rule 403, it must
be more than damaging to the adverse party; it must be unfairly prejudicial.” Koloda v. Gen.
Motors Parts Div., Gen. Motors Corp., 716 F.2d 373, 378 (6th Cir. 1983). Evidence is viewed “in
a light most favorable to its proponent, maximizing its probative value and minimizing its
prejudicial effect[,]” and “[t]he test is strongly weighted toward admission.” United States v.
Perry, 438 F.3d 642, 648 (6th Cir. 2006) (internal quotation marks omitted) (quoting United States
v. Zipkin, 729 F.2d 384, 389 (6th Cir. 1984)); United States v. Asher, 910 F.3d 854, 860 (6th Cir.
2018).
Reid’s testimony about Q4 is clearly relevant, as it relates to Thurman’s conclusion
regarding microscopic similarities and whether Thurman’s report was fabricated. See Fed. R.

7

Evid. 401. To the extent a jury must determine whether Thurman’s checkmark was indicative of
Q1 or Q4 is an issue of credibility and the weight given to Reid’s examination and testimony about
Q4, not admissibility. See Rose v. Truck Ctrs., Inc., 388 F. App’x 528, 535-36 (6th Cir. 2010)
(“[D]etermining the weight that should be afforded to [an expert witness]’s testimony is a function
that clearly belongs in the realm of the trier of fact.”); McLean v. 988011 Ontario, Ltd., 224 F.3d
797, 801 (6th Cir. 2000) (“[M]ere ‘weaknesses in the factual basis of an expert witness’
opinion . . . bear on the weight of the evidence rather than on its admissibility.’” (quoting United
States v. L.E. Cooke Co., 991 F.2d 336, 342 (6th Cir. 1993))); cf. V&M Star Steel v. Centimark
Corp., 678 F.3d 459, 468 (6th Cir. 2012) (“Expert opinion can also be based on an inference and
can embrace an ultimate issue.” (citing Fed. R. Evid. 704(a))). As for Hardin’s contentions that a
jury may erroneously afford Reid’s testimony more weight based on his employment or believe
that he conducted a more substantive review, these issues are best addressed with proper jury
selection, limiting instructions, and cross-examination. See Daubert, 509 U.S. at 596; Sutkiewicz
v. Monroe Cnty. Sheriff, 110 F.3d 352, 360 (6th Cir. 1997); Koloda, 716 F.2d at 378.
b.

Reliability

The Sixth Circuit has explained that the reliability “inquiry is ‘a flexible one,’ and ‘[t]he
focus . . . must be solely on principles and methodology, not on the conclusions they generate.’”
Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 527 (6th Cir. 2012) (alteration in
original) (quoting Daubert, 509 U.S. at 594); cf. L.E. Cooke Co., 991 F.2d at 342 (“[T]he law of
evidence . . . favors a broad rule of admissibility and is designed to permit the admission of all
evidence which is relevant and material to the issues in controversy, unless there is a sound and
practical reason for excluding it.” (citation omitted)). Hardin argues Q4 has been “radically”

8

altered to the extent it “no longer exists” as the sample which Thurman examined. (See Pls.’ Mot.
Exclude 7-10 (citing Rose v. Truck Centers, Inc., 388 F. App’x 528 (6th Cir. 2010))). In Rose, an
expert witness “concluded that ‘the cause of [the] accident was the loss of power steering fluid due
to . . . loose valve housing bolts.’” Rose, 388 F. App’x at 530 (alteration in original) (citation
omitted). Undermining this conclusion was the “assumption that on the day [the expert] inspected
the steering gear, the bolts were at the precise degree of looseness that they were at the time of the
accident.” Id. at 535. A photograph taken of the steering gear four months before the expert’s
inspection, however, “indicate[d] that the position of the bolts was altered between the time of the
accident and [the expert]’s examination.” Id. As the expert’s assumptions were “contradicted by
evidence in the record,” his conclusions were considered unreliable. Id. at 536 (citing Sigler v.
Am. Honda Motor Co., 532 F.3d 469, 481-82 (6th Cir. 2008)).
Q4 was originally a 4-centimeter strand of hair; a 2-centimeter segment remains. (Reid
Report 1; Pls.’ Mot. Exclude Ex. A, at 2). Neither party asserts that the color or microscopic
characteristics of the remaining section of Q4 was changed in any respect by the DNA testing.
(See Pls.’ Mot. Exclude 7-10; Def.’s Resp. Pls.’ Mot. Exclude 14-15, DN 313). Reid concedes he
cannot speculate regarding the microscopic characteristics of the consumed portion of Q4. (See
Reid Dep. 143:24-25, Sept. 15, 2022, DN 316-15). Unlike in Rose, however, there is no evidence
that the characteristics of Q4 examined by Reid were altered in a manner to render his review
unreliable.
Finally, Hardin insists “Reid did not employ the same methodology here as he would if he
were conducting an independent examination.” (Pls.’ Mot. Exclude 11). Indeed, experts must
“employ[] in the courtroom the same level of intellectual rigor that characterizes the practice of an

9

expert in the relevant field[,]” and their “testimony must be ‘the product of reliable principles and
methods’ and must ‘reliably appl[y] the principles and methods to the facts of the case.’” Garvin
v. Ethicon, Inc., 616 F. Supp. 3d 658, 680 (W.D. Ky. 2022) (third alteration in original) (quoting
Kumho Tire Co., 526 U.S. at 152; Fed. R. Evid. 702(c)-(d)). Reid concedes he did not create notes
or draft an official report but did “issue[] a letter stating [his] findings.” (Reid Dep. 98:24-99:3;
see Reid Dep. 99:14-100:3, 161:18-24 (explaining that his letter is not the same as an “official
state police laboratory report” during a police investigation); see also Reid Report). Moreover,
Reid used the same analytical technology and looked for the same characteristics as Thurman’s
initial review. (Reid Dep. 79:6-80:5, 141:20-142:5).
Therefore, Reid’s examination is relevant, reliable, not unfairly prejudicial, and
demonstrates a reasonable factual basis for his conclusions. As such, Reid’s opinions will not be
excluded. See Daubert, 509 U.S. at 596; Rogers, 328 F. Supp. 2d at 691.
2.

Credibility Testimony

Hardin contends that Reid’s conclusion in agreement with Thurman’s report merely
bolsters Thurman’s credibility and is inadmissible as expert testimony. (Pls.’ Mot. Exclude 1213; Reid Report 1). Indeed, the jury must weigh each witness’ credibility, and an expert witness
may not encroach on this role. Cf. Babb v. Maryville Anesthesiologists P.C., 942 F.3d 308, 316
(6th Cir. 2019) (affirming that “expert witnesses ‘may not testify about the credibility of other
witnesses’ because ‘[i]t is the province of the jury to assess the credibility of witnesses.’”
(alteration in original) (citation omitted)); Esch v. Cnty. of Kent, 699 F. App’x 509, 517 (6th Cir.
2017) (“Expert witnesses are generally not permitted to base their conclusions on an evaluation of
a witness’s credibility, because credibility determinations are not an appropriate subject for expert
testimony.” (citations omitted)).

10

As explained above, Reid reliably and independently reviewed Thurman’s conclusions. To
the extent Reid’s opinions align with Thurman’s observations, this does not impermissibly bolster
Thurman’s credibility. Cf. Youngberg v. McKeough, 534 F. App’x 471, 479 (6th Cir. 2013) (“It is
not helpful to the jury when expert testimony gives lay testimony interpreting the facts of the case
or ‘address[ing] matters that [are] equally within the competence of the jurors to understand and
decide.’” (alterations in original) (quoting McGowan v. Cooper Indus., Inc., 863 F.2d 1266, 1272
(6th Cir. 1988))). Rather, Reid explained his personal observations and did “not tell the jury ‘what
result to reach’ on ‘ultimate legal question[s]’ . . . .” Babb, 942 F.3d at 316 (alteration in original)
(citation omitted); cf. United States v. Volkman, 797 F.3d 377, 388 (6th Cir. 2015) (“An expert
may not opine on the overarching question of guilt or innocence, but he or she may ‘stat[e] opinions
that suggest the answer to the ultimate issue or that give the jury all the information from which it
can draw inferences as to the ultimate issue.’” (alteration in original) (quoting Berry v. City of
Detroit, 25 F.3d 1342, 1353 (6th Cir. 1994))). Therefore, exclusion is not warranted here.
3.

Comparability of Notetaking

Finally, Hardin contends that Reid cannot comment on Thurman’s notetaking and whether
it was “consistent with other trained hair analysts’ notes at the time the hairs were examined[,]” as
Reid did not begin working at the Kentucky State Police Lab until 2000 and did not perform hair
comparison analyses until 2002. (Pls.’ Mot. Exclude 15-16; Reid Report 1). Hardin asserts that
this testimony is irrelevant and that Reid does not have the specialized knowledge necessary to
opine about this information. (Pls.’ Mot. Exclude 15-16).
Reid’s opinion regarding Thurman’s notetaking is relevant to the issues in this action, given
that Hardin’s claim against Thurman chiefly relies on Thurman’s observation notes, as the opinion
pertains to whether Thurman properly detailed the hair descriptions he purportedly observed and

11

whether Thurman employed proper methodology when analyzing multiple hairs simultaneously.
See Fed. R. Evid. 401; Cambio Health Sols., LLC, 234 F. App’x at 338. As for Reid’s knowledge
of analyst notetaking techniques in 1992, “[e]xperts are permitted a wide latitude in their opinions,
including those not based on firsthand knowledge.” V&M Star Steel v. Centimark Corp., 678 F.3d
459, 468 (6th Cir. 2012) (quoting Jahn v. Equine Servs., PSC, 233 F.3d 382, 388 (6th Cir. 2000));
cf. Pride v. BIC Corp., 218 F.3d 566, 577 (6th Cir. 2000) (noting that the specialized knowledge
requirement of Rule 702 “has always been treated liberally . . . .”). Even then, Reid testified during
his deposition that he has previously reviewed hair analysis cases from 1992 to 1995. (Reid Dep.
112:17-113:4, 114:21-24. Accordingly, Reid has the specialized knowledge to discuss notetaking
techniques in 1992, so he may opine whether Thurman’s notes aligned with those techniques.
Therefore, Plaintiffs’ motion to exclude Reid’s opinions and testimony is denied.8
B.

Thurman’s Motion for Summary Judgment

Plaintiffs allege that Thurman fabricated evidence and suppressed exculpatory evidence,
which led to their “unjust criminal conviction[s]” and violated their rights to due process and a fair
trial. (Am. Compls. ¶¶ 176-93); see Mills v. Barnard, 869 F.3d 473, 485 (6th Cir. 2017)
(explaining that claims such as these should be analyzed separately). Thurman contends that he
did not violate Plaintiffs’ constitutional rights, so he is entitled to qualified immunity. (Def.’s
Mem. Supp. Mot. Summ. J. 30-42, DN 292-1 [hereinafter Def.’s Mem.]).
“Qualified immunity protects public officials from civil liability for damages when their
conduct does not violate the plaintiff’s ‘clearly established statutory or constitutional rights of

8

Plaintiffs also move to exclude Julie Howenstine, an expert witness for Thurman, and opinions
attributed to George Nichols, the forensic pathologist who performed the autopsy on Warford’s
body. (See Pls.’ Mot. Exclude, DN 291; Pls.’ Mot. Exclude, DN 328). These experts are not
addressed in the summary judgment motion.
12

which a reasonable person would have known.’” Jackson v. City of Cleveland, 64 F.4th 736, 745
(6th Cir. 2023) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)); cf. Palma v. Johns, 27
F.4th 419, 428 (6th Cir. 2022) (“Qualified immunity is intended to protect public officials from
unnecessary interference with their duties, while also holding them accountable ‘when they
exercise power irresponsibly.’” (citation omitted)). Once raised, the plaintiff bears the burden of
demonstrating that the defendant is not entitled to qualified immunity. See Jarvela v. Washtenaw
Cnty., 40 F.4th 761, 764 (6th Cir. 2022); cf. Harris v. City of Saginaw, 62 F.4th 1028, 1033 (6th
Cir. 2023) (“The individualization of the analysis is axiomatic to qualified immunity, as [the
plaintiff] must show that each defendant personally violated his rights.” (citation omitted)). This
is established by “plausibly alleg[ing] facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was clearly established at the time of the challenged
conduct.” Jackson, 64 F.4th at 745 (internal quotation marks omitted) (quoting Moderwell v.
Cuyahoga Cnty., 997 F.3d 653, 659-60 (6th Cir. 2021)). Unless both aspects are established,
qualified immunity shields a defendant against liability. See Shumate v. City of Adrian, 44 F.4th
427, 439 (6th Cir. 2022); Spurlock v. Satterfield, 167 F.3d 995, 1005 (6th Cir. 1999).
1.

Claims by Clark

Thurman first argues that Clark’s claims must be dismissed, given that Clark never alleged
that he was erroneously incriminated by Thurman or that Thurman committed misconduct
implicating Clark. (Def.’s Mem. 27-29). Clark disputes this conclusion, as Plaintiffs “were tried
jointly on the theory they participated in the crime together” and the Kentucky Supreme Court
affirmed the vacating of both their convictions. (Pls.’ Resp. 33); see Clark, 528 S.W.3d at 346.
Indeed, the only allegation of misconduct by Thurman in Clark’s Amended Complaint
relates to Hardin. (See Am. Compls. ¶¶ 61-65 (testing of Hardin’s handkerchief), ¶¶ 97-101

13

(whether Hardin was the source of a hair on Warford’s pants)). Thurman did not report any
similarities between Clark’s hair sample and the evidence collected by officers. (See Lab Reports
8-9). Moreover, Thurman testified at trial that Clark was excluded as the source of the hair on
Warford’s body and clothing. (See Thurman Test. 206:7-207:23, 209:16-210:22, Mar. 2, 1995,
DN 292-15). While Plaintiffs rely on their joint trial and the prosecution’s theory of the case, this
does not excuse Plaintiffs’ burden to show individually a genuine issue of material fact as to each
claim in their respective Amended Complaints, just as it did not affect the prosecution’s burden of
proving each charge against them individually. See Matsushita Elec. Indus. Co., 475 U.S. at 58687; cf. United States v. Frazier, 584 F.2d 790, 795 (6th Cir. 1978) (“The jury must be presumed
capable of sorting out the evidence and considering the case of each defendant separately.”
(citation omitted)). Therefore, Thurman is entitled to qualified immunity against Clark’s claims,
and summary judgment is granted on these claims.
2.

Hardin’s Fabrication of Evidence Claims

“The basis of a fabrication-of-evidence claim under § 1983 is an allegation that a defendant
‘knowingly fabricated evidence against [a plaintiff], and [that] there is a reasonable likelihood that
the false evidence could have affected the judgment of the jury.’” Mills, 869 F.3d at 484
(alterations in original) (quoting Stemler v. City of Florence, 126 F.3d 856, 872 (6th Cir. 1997));
Gregory v. City of Louisville, 444 F.3d 725, 737 (6th Cir. 2006) (citation omitted)). “But the
relevant question is not whether the fabricated evidence was shown to the jury; it is whether the
statement affected the decision of the jury.” Jackson v. City of Cleveland, 925 F.3d 793, 816 (6th
Cir. 2019). Thus, a Section 1983 claim may lie when the “fabricated evidence that ‘is used as [the]
basis for a criminal charge’ . . . because, absent that evidence, there would have been no jury.” Id.
(alteration in original) (citation omitted); cf. Webb v. United States, 789 F.3d 647, 670 (6th Cir.

14

2015) (“[E]ven if independent evidence establishes probable cause against a suspect, it would still
be unlawful for law-enforcement officers to fabricate evidence in order to strengthen the case
against that suspect.” (citation omitted)); Sanford v. City of Detroit, 815 F. App’x 856, 859 (6th
Cir. 2020) (“The Fourteenth Amendment bars an officer from knowingly creating false evidence
to obtain a conviction.” (citations omitted)). This applies likewise to forensic examiners. See
Ferris v. City of Cadillac, 726 F. App’x 473, 478 (6th Cir. 2018); Moldowan v. City of Warren,
578 F.3d 351, 397 (6th Cir. 2009) (“[E]xpert forensic examiners ‘act in an investigatory fashion
when they interpret and document physical evidence,’ and thus . . . ‘the intentional fabrication of
a forensic report’ is subject to the same considerations applied to the intentional fabrication of
evidence by a police officer or prosecutor.’” (quoting Gregory, 444 F.3d at 740)).
a.

Handkerchief

The first basis for Hardin’s fabrication of evidence claim is Thurman’s testing, or lack
thereof, concerning the bloody handkerchief.

(Am. Compls. ¶¶ 63-64). Thurman’s report

indicated that chemical tests of the handkerchief showed the presence of blood, but the record does
not contain any evidence to suggest that Thurman conclusively determined whether the blood was
human or animal, nor did he document such information in his reports. (Def.’s Mot. Summ. J. Ex.
35, at 5, DN 292-37). Rather, Thurman noted that further analysis was unsuccessful “due to the
age and condition of the blood . . . .” (Def.’s Mot. Summ. J. Ex. 35, at 5). Hardin does not address
or dispute Thurman’s report concerning the handkerchief and only takes issue with Thurman’s hair
analysis. (See Pls.’ Resp. 28-33). Therefore, Thurman is entitled to qualified immunity, and
summary judgment is proper with respect to Hardin’s claims against Thurman based upon the
handkerchief. See Humphrey v. U.S. Att’y Gen.’s Off., 279 F. App’x 328, 331 (6th Cir. 2008).

15

b.

Hair Comparison

Hardin primarily advances his claim based on Thurman’s assessment that Hardin’s hair
was similar in color and microscopic characteristics to a hair discovered on Warford’s body. (Am.
Compls. ¶¶ 97-99). As previously noted, Hardin disclaims “seek[ing] to hold [Thurman] liable for
his trial testimony” and instead limits his claim only to the alleged “pre-trial fabrications of
evidence included in his report and representations to Greer and [the prosecutor]” concerning the
results of the hair analysis. (Pls.’ Resp. 33 n.9). In his 1992 report, Thurman articulated, “One (1)
Caucasian head hair found on Exhibit 16 was similar in color and microscopic characteristics to
Exhibit 21C and may have common origin.” (Lab Reports 9; see Lab Reports 2, 7-8 (noting that
Exhibit 16 was Warford’s pants and Exhibit 21C was the hair sample provided by Hardin)). Hardin
proffers two grounds supporting his contention that Thurman fabricated his conclusions: (1)
“DNA testing definitively proved that the hair could not have come from Hardin”; and (2) “[b]ased
on [Thurman’s] own analysis, the microscopic characteristics of this hair were dissimilar to
Hardin’s hair.” (Am. Compls. ¶ 98; Pls.’ Resp. 17 (citations omitted)).
It must be recognized initially that the DNA testing does not establish that Thurman
fabricated his conclusions. The DNA results do not indicate the color or characteristics of the four
unknown hairs that Thurman microscopically observed, nor have the parties so suggested. Rather,
Hardin agrees with Thurman that “even when hairs are microscopically indistinguishable, they
often come from different people.” (Am. Compls. ¶ 99; Def.’s Mem. 40). Thus, even if Thurman
examined a hair that appeared microscopically similar to Hardin’s, non-corroborating DNA testing
would not establish that fabrication occurred.
Hardin next points to Thurman’s observation notes regarding the microscopic
characteristics of the hairs.

He contends that any distinctions in color or microscopic

16

characteristics would render Hardin’s sample dissimilar from the hairs discovered on Warford’s
clothing, and that Thurman’s conclusion to the contrary shows deceit. (See Pls.’ Resp. 16-20, 2934). Thurman’s notes documented characteristics that he purportedly observed when examining
the hairs under a microscope, such as color, length, diameter, scaling, and pigmentation. (See Pls.’
Resp. Def.’s Mot. Summ. J. Ex. 7, DN 316-8 [hereinafter Exam Notes]). Thurman chronicled that
Hardin’s hair was brown, fine-to-medium in diameter, and had a medium width medulla; the
unknown hair9 was light-brown-to-brown, fine in diameter, and had a medium-to-thick medulla.
(Exam Notes 4, 7). At the bottom of his notes to Exhibit 16, Thurman noted “[s]everal hairs
dissimilar to Ex. 19C and 21C”. (Exam Notes 7; see Thurman Dep. 186:23-188:12, Feb. 13, 2020,
DN 316-5 (indicating that “several” meant “three or more” hairs); Trial Tr. 23:15-25, Mar. 3, 1995,
DN 292-4 (same); see also Lab Reports 2, 4 (noting that Exhibit 21C is Hardin’s known head hair
standard and Exhibit 19C is Clark’s known head hair standard)). When reviewing his observation
notes, Thurman arguably conceded that his notes may not have precisely reflected that the
unknown hair was similar in color and microscopic characteristics to Hardin’s hair. (See Thurman
Dep. 181:3-182:3). Even then, Reid is the only expert witness in the record who observed the
unknown hairs microscopically, and he stated that he observed “the microscopic characteristics
listed in [] Thurman’s notes to be present in [Q4]” and “in the head hair standard collected from []
Hardin” and that he agreed with “[Thurman’s] conclusion of ‘similar in color and microscopic
characteristics.’” (Reid Report 1).

9

It is unclear which of the four unknown hairs was described in Thurman’s notes, given that the
checkmark was at the end of Q1 and to the side of Q4. (See Dimick Dep. 49:8-16, 57:5-10; Pls.’
Mot. Exclude Ex. C; Melton Aff. ¶¶ 3-4). This ambiguity does not alter this Court’s conclusion,
considering Hardin’s lack of expert testimony about the color and microscopic characteristics for
any of the unknown hairs to dispute Thurman’s reported conclusions, which is discussed below.
17

When viewing this evidence in the light most favorable to the nonmovant, Hardin only
demonstrates that Thurman’s notes may be inconsistent with his final report. See Matsushita Elec.
Indus. Co., 475 U.S. at 587; see also Ferris, 726 F. App’x at 480-83 (affirming summary judgment
in favor of a forensic pathologist, despite the plaintiff’s expert witnesses purportedly “identif[ying]
numerous errors in the analysis and conclusions of Defendants[,]” because “[t]he question . . . is
not whether a self-interested litigant can find an expert to say the defendants got it wrong, but
whether the evidence . . . creates a genuine issue of material fact that Defendants fabricated that
evidence.”). Hardin presents no expert proof from actual examination of the color and microscopic
characteristics of the unknown hairs, nor has any expert opined that Thurman’s conclusions in his
report were factually incorrect, let alone fabricated. (See Pls.’ Resp. 33 n.9 (limiting his claim to
Thurman’s report)); see also Ferris, 726 F. App’x at 479 (noting that Sixth Circuit precedent
“simply recognized that whether evidence is ‘fabricated’ will often turn on circumstantial evidence
and some expert reports can be so grossly deficient that they raise a triable issue of fact as to
whether the explanation for their deficiency is fabrication.”); Fields v. Wharrie, 740 F.3d 1107,
1110 (7th Cir. 2014) (“Fabricated testimony is testimony that is made up; it is invariably false.
False testimony is the equivalent; it is testimony known to be untrue by the witness and by whoever
cajoled or coerced the witness to give it.”). Hardin instead offers testimony from Luanne Thomas
(“Thomas”), Thurman’s former supervisor at the Kentucky State Police Lab. (Thomas Dep.
190:17-194:4, Aug. 5, 2020, DN 316-9). Thomas did not microscopically examine the unknown
hairs, and she reiterated the same conclusion Thurman arguably conceded: his notes may not have
reflected that Hardin’s hair was similar to one of the unknown hairs. (See Thomas Dep. 192:5193:1). Notably, Thomas acknowledged there was some subjectivity when examining hairs and
that analysts may have different interpretations of the characteristics of the same hair. (Thomas

18

Dep. 275:19-278:19; accord Reid Dep. 168:16-19); see Caminata v. Cnty. of Wexford, 664 F.
App’x 496, 501 (6th Cir. 2016) (affirming qualified immunity and summary judgment considering
the lack of evidence showing deliberate fabrication of evidence and because “Plaintiff’s expert
witness acknowledged that fire investigators viewing the same body of evidence sometimes reach
different conclusions, and that he found no evidence that [the defendant] removed evidence from
the scene, planted evidence at the scene, or fabricated evidence.”). Thomas further emphasized
that “the conclusion is made looking at the hairs. You can’t really look at the [notes] sheet and
come to a conclusion. You have to be looking at the hairs.” (Thomas Dep. 75:3-6). Thus, although
Thomas found inconsistency between Thurman’s notes and his finding of similarity, she did not
dispute Thurman’s finding that one of the hairs taken from the victim’s clothing was
microscopically similar to Hardin’s. To the contrary, Thomas explicitly stated that disproving
Thurman’s conclusion of similarity would require actual comparison of the two samples.
Apparently no expert, aside from Reid, has conducted such a comparison, so that there is no expert
proof that Thurman’s reported finding of similarity was false or fabricated.
In Gregory, the Sixth Circuit affirmed the denial of qualified immunity and summary
judgment to a forensic examiner, one who worked in the same lab as Thurman and who allegedly
fabricated evidence and withheld exculpatory evidence. Gregory, 444 F.3d at 744-45. The
examiner reported that five hairs were recovered from a rape scene, despite knowing that seven
were recovered, and that all the hairs were similar in color and microscopic characteristics to a hair
from the plaintiff, though it was unclear whether any of them were actually similar. Id. at 732.
Moreover, the plaintiff’s expert witnesses opined that the examiner’s findings were “far afield of
what any reasonable forensic examiner would find from the evidence[,]” which the Sixth Circuit
held was “sufficient evidence from which a jury might reasonably infer that [the examiner]

19

fabricated her report. Id. at 744. Similarly, the Sixth Circuit affirmed the denial of qualified
immunity and summary judgment to two firearm examiners where “the record indicate[d] the
officers’ error was so egregious that a jury could find their actions were knowing or intentional.”
Ricks v. Pauch, No. 20-1778, 2021 U.S. App. LEXIS 30978, at *14 (6th Cir. Oct. 13, 2021). There,
“[o]ne of [the plaintiff]’s experts found the officers’ error so ‘catastrophic’ as to be incompetence
at best and intentional misconduct at work, surmising ‘an error of this magnitude would never be
made by a competent firearms examiner, let alone two firearm examiners.’” Id. “Even the
officers’ own expert believed that their conclusion was either ‘a horrible mistake’ or ‘deliberate.’”
Id. Finally, the Sixth Circuit reversed the dismissal of a fabrication of evidence claim against an
analyst who allegedly knew “the DNA results . . . were unmistakably exonerating but [] chose to
report that they were consistent with Mills’ liability in order to support the prosecution’s case and
a guilty verdict.” Mills, 869 F.3d at 485.
These holdings further support the need for expert testimony to support Hardin’s assertion
that Thurman’s conclusion was demonstrably false and that Thurman knew his finding of
microscopic similarity was wrong at the time, as a jury would otherwise be left only to speculate
about the accuracy of Thurman’s finding that the hairs were microscopically similar. See EQT
Prod. Co. v. Phillips, 767 F. App’x 626, 632 (6th Cir. 2019) (concluding that expert testimony is
required when “the relevant inquiry is not ‘so apparent that a layperson with general knowledge
would have no difficulty recognizing it . . . .’” (citation omitted)).
The conclusions in Thurman’s report are dissimilar and distinguishable from the actions of
the defendants in Gregory, Ricks, and Mills. Hardin has not marshalled any qualified proof that
microscopic comparison of the two hairs were not similar. See Caminata, 664 F. App’x at 501
(affirming qualified immunity precluding claims of fabrication of evidence and malicious

20

prosecution, notwithstanding expert testimony that “cast[s] doubt on the soundness of [an
investigator]’s conclusions,” when the plaintiff “fail[s] to show that [the investigator] acted
intentionally or recklessly in his investigation” or “offer[s] no testimony or affirmative evidence”
to dispute that evidence was not deliberately fabricated). Given that there is no expert proof that
Thurman’s finding of similarity was false, Hardin has certainly not demonstrated that Thurman’s
report was so “far afield”, “egregious”, or “catastrophic” to suggest that it was false or a knowing
or intentional fabrication. See Anderson v. Knox Cnty., No. 22-5280, 2023 U.S. App. LEXIS
17970, at *14 (6th Cir. July 13, 2023) (“But fabrication means more than just wrong information—
it means evidence offered ‘knowingly’ or in bad faith.” (citations omitted)); Halsey v. Pfeiffer,
750 F.3d 273, 295 (3d Cir. 2014) (incorrect testimony “should not be treated as fabricated merely
because it turns out to have been wrong” but instead requires “persuasive evidence supporting a
conclusion that the proponents . . . were aware that the [testimony] was incorrect, and . . . offered
the evidence in bad faith.”); Stinson v. Gauger, 868 F.3d 516, 533-34 (7th Cir. 2017) (en banc)
(Sykes, J., dissenting) (a fabrication of evidence claim “requires evidence from which a reasonable
jury could infer that the opinion was both wrong and that the expert knew it was wrong at the time
he gave it. In other words, it requires evidence that the expert was not just badly mistaken but that
he lied.” (emphasis in original)). As such, Thurman is entitled to qualified immunity, and summary
judgment is appropriate regarding the hair comparison conclusions in his report.
c.

Conversations with Law Enforcement

Thurman further contends that he did not falsely report his results to law enforcement,
specifically that Hardin’s hair was a “match” to the one found on Warford’s body; instead,
Thurman maintains he properly reported that the hair was similar in color and microscopic
characteristics. (See Def.’s Mem. 40-41). Hardin does not appear to dispute this conclusion, as

21

his arguments focus on whether the findings were fabricated, not Thurman’s purported
characterization to law enforcement. (See Pls.’ Resp. 29-33).
Thurman relayed his conclusions to Greer during an April 30, 1992, phone call and a May
4, 1992, visit by Greer to the Kentucky State Police Lab. (See Pls.’ Resp. Def.’s Mot. Summ. J.
Ex. 83, at 20-21, DN 316-79). Greer’s investigative log documented Thurman stating on the April
30 call “that one hair found on the red sweatpants worn by the victim at the time of death was
significantly similar to hair samples from suspect Keith Hardin.” (Pls.’ Resp. Def.’s Mot. Summ.
J. Ex. 83, at 21). Greer’s notes, however, do not purport to quote Thurman’s exact language.
During Greer’s visit to the Kentucky State Police Lab on May 4, 1992, Greer and Thurman
“discussed evidence that had been previously submitted,” and “Thurman advised that the reports
were completed . . . .” (Pls.’ Resp. Def.’s Mot. Summ. J. Ex. 83, at 21). The log does not detail
what was discussed or support the claim that Thurman relayed falsely fabricated evidence against
Hardin.
An affidavit supporting a search warrant request for Hardin’s home on May 4, 1992, stated
several grounds supporting probable cause for issuance, including that “[t]he physical evidence
submitted [by Plaintiffs] revealed . . . a hair sample, similar in microscopic characteristics to that
of Keith Hardin, was found on Rhonda Warford’s pants the day her body was found.” (Def.’s
Mot. Summ. J. Ex. 34, at 2, DN 292-36). A subsequent suppression hearing produced testimony
that this information was not from Thurman’s report but instead came from Greer, who was
relating his phone conversation with Thurman. (See Def.’s Mot. Summ. J. Ex. 37, at 2-4, DN 29239). Both Greer and the affiant testified that Thurman told them the hair samples had similar color
and microscopic characteristics. (See Def.’s Mot. Summ. J. Ex. 37, at 2-4). This evidence
demonstrates that Thurman conveyed his conclusions to Greer, who relayed the information to the

22

officer preparing the search warrant affidavit. To the extent Greer’s testimony to the grand jury
differs from his own notes regarding Thurman’s verbal report or from Thurman’s written report,
any such inconsistency cannot be blamed on Thurman. (See Def.’s Mot. Summ. J. Ex. 10, at 1314, DN 292-12).
There is no proof that Thurman classified the hairs as a “match,” as opposed to properly
reporting that the samples were “similar in microscopic characteristics.” As there is no genuine
issue of material fact to the contrary, Thurman is entitled to qualified immunity with respect to the
claim that he falsely reported his findings as a match. Even if the record plausibly suggested that
Thurman mischaracterized the comparison as a match, Thurman would be entitled to qualified
immunity in the absence of evidence demonstrating that any such characterization was intentional
or knowing. See Ferris, 726 F. App’x at 478-79. Accordingly, Thurman is entitled to qualified
immunity as to this claim, and summary judgment is appropriate in his favor.
3.

Brady Violation

The Supreme Court has held “that the suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland,
373 U.S. 83, 87 (1963); cf. Army v. Collins, 488 F. App’x 957, 961-62 (6th Cir. 2012) (“Although
Brady imposes an absolute duty of disclosure only on prosecutors, . . . ‘the due process guarantees
recognized in Brady also impose an analogous or derivative obligation on the police’ to disclose
evidence whose ‘exculpatory value’ is ‘apparent’ to officers.” (emphasis omitted) (quoting
Moldowan, 578 F.3d at 388)); . Thus, “[t]here are three components of a true Brady violation:
[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because
it is impeaching; that evidence must have been suppressed by the State, either willfully or

23

inadvertently; and prejudice must have ensued.” Chinn v. Warden, 24 F.4th 1096, 1102 (6th Cir.
2022) (alterations in original) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). “A
deprivation of due process occurs where all three aspects are present.” United States v. White, 492
F.3d 380, 410 (6th Cir. 2007). But see Army, 488 F. App’x at 962 (noting that the duty to disclosure
apparent exculpatory evidence “is discharged once an officer delivers such evidence to the
prosecutor’s office.” (citing Moldowan, 578 F.3d at 381)).
Like constitutional violations for fabrication of evidence, “Brady violations are, of course,
clearly established violations of constitutional rights.” Mills, 869 F.3d at 486 (noting the right to
be clearly established as of 1992); Moldowan, 578 F.3d at 382 (recognizing that the right was
clearly established in 1990); cf. Spurlock, 167 F.3d at 1005 (“[I]f the right at issue was clearly
established at the time the governmental actor committed the violation in question, ‘the immunity
defense ordinarily should fail, since a reasonably competent public official should know the law
governing his conduct.’” (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982))). Hardin
maintains that Thurman violated Brady by failing to provide his observation notes to the
prosecutor, who would have been required to provide them to Hardin, and to disclose that the
reported conclusion was inconsistent with Thurman’s lab notes.10 (Pls.’ Resp. 34-35). Thurman
insists he “received requests for forensic testing from law enforcement who had garnered evidence
in the field; he processed these requests; and he issued his reports,” which “were produced by the
Commonwealth in response to Court Ordered discovery.” (Def.’s Mem. 32).

10

Hardin also alleged Brady claims against Thurman for failing to test grey hairs found on
Warford’s hand and for not assessing whether the blood on the handkerchief was human or animal.
(Am. Compls. ¶¶ 61-65, 107-09). Hardin does not address or dispute Thurman’s arguments
concerning these claims, so summary judgment is appropriate on this claim. (See Pls.’ Resp. 2833); Humphrey, 279 F. App’x at 331.
24

At the time of Hardin’s prosecution, the Kentucky State Police Lab maintained a policy to
provide only final reports to the prosecution, which were then produced to the defendant.11 In
accordance with this policy, Thurman’s observation notes were not included in the file which was
provided to Hardin. (Thurman Dep. 54:5-55:10). Therefore, a jury could find that Thurman’s
notes were withheld from the prosecutor and from Hardin. See Moldowan, 578 F.3d at 381; Army,
488 F. App’x at 962.
Notwithstanding the Lab policy, however, Thurman acknowledged in his deposition that
he “had an obligation to ensure that all exculpatory information was documented and provided” to
the prosecution. (Thurman Dep. 54:5-11). Considering Thurman’s concession that his observation
notes may be inconsistent with his report, Thurman’s notes would have been exculpatory.
(Thurman Dep. 181:3-182:3; Thomas Dep. 192:5-193:1); see also United States v. Bagley, 473
U.S. 667, 676 (1985) (“Impeachment evidence . . . falls within the Brady rule.” (citation omitted));
Wilson v. Sheldon, 874 F.3d 470, 478 (6th Cir. 2017) (“Impeachment evidence is also encompassed
within the Brady rule because a jury’s reliance on the credibility of a witness can be decisive in
determining the guilt or innocence of the accused.” (citation omitted)). Thurman acknowledged
that his “final report had to be an accurate and thorough reflection of the data [he] found and the
conclusions [he] drew, both inculpatory an[d] exculpatory[.]” (Thurman Dep. 55:3-7; accord
Thurman 54:22-25 (averring that he “had to ensure that any exculpatory information [he] found
was included in [his] communications to law enforcement . . . .”)). Thurman’s report, however,
did not mention the inconsistencies between his observation notes and conclusion. (See Lab
Reports 9; Exam Notes 4, 7). Therefore, the exculpatory value of Thurman’s observation notes
arguably should have been readily apparent to Thurman. See Army, 488 F. App’x at 961-62; see

11

Hardin does not challenge the existence of, or that Thurman complied with, the policy.
25

also Provience v. City of Detroit, 529 F. App’x 661, 665-66 (6th Cir. 2013) (holding that an
officer’s progress note was exculpatory evidence because “it support[ed] a viable alternative
theory of the crime . . . and help[ed] cast doubt on the prosecution’s theory of the case.”).
Finally, a Brady violation occurs if prejudice results from the suppression of evidence
favorable to the defendant. See Chinn, 24 F.4th at 1102. Whether prejudice ensued “depends on
whether the suppressed evidence is material.” Id. (citation omitted). “Evidence is ‘material,” if it
creates a ‘reasonable probability of a different result,’ such that its suppression ‘undermines
confidence in the outcome of the trial.’” Id. (internal citations omitted); cf. Kyles v. Whitley, 514
U.S. 419, 433 (1995) (“The Court found a duty on the part of the Government even [when the
exculpatory evidence was never requested], though only when suppression of the evidence would
be ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’” (quoting
United States v. Agurs, 427 U.S. 97, 108 (1976))); Giglio v. United States, 405 U.S. 150, 154-55
(1972) (where a witness’s credibility was “an important issue in the case,” the failure to disclosure
impeaching evidence related to credibility implicated Brady concerns).
Thurman’s conclusion regarding the microscopic similarities between Hardin’s sample and
the unknown hair was not ancillary to the prosecution’s case-in-chief; rather, it addressed the sole
physical evidence ostensibly placing Hardin at the scene of Warford’s murder. See Banks v.
Dretke, 540 U.S. 668, 699-703 (2004) (a witness falsely testifying about not taking money from
the police was material under Brady when the witness’ testimony was “the centerpiece” of the
prosecution’s case). The unavailability of Thurman’s observation notes for cross-examination by
Hardin’s counsel could certainly be seen to seriously undermine confidence in the outcome of
Hardin’s trial. See Smith v. Cain, 565 U.S. 73, 76 (2012) (the suppression of a witness’s statements
that would contradict his trial testimony, and the witness’s testimony was the only evidence linking

26

the defendant to the crime, undermines confidence in the conviction and constitutes a Brady
violation); Agurs, 427 U.S. at 112 (“[I]f the omitted evidence creates a reasonable doubt that did
not otherwise exist, constitutional error has been committed.”). This materiality is underscored by
the fact that Plaintiffs’ convictions were reversed when DNA testing excluded Hardin’s hair as a
match with the unknown sample which Thurman found was microscopically similar. This
supports the conclusion that Thurman’s notes were material and that prejudice ensued from
withholding these notes. See Chinn, 24 F.4th at 1102.
Therefore, Hardin has demonstrated that Thurman is not entitled to qualified immunity as
to his Brady claim, so summary judgment is not appropriate in Thurman’s favor. Jackson, 64
F.4th at 745; Jarvela, 40 F.4th at 764. Thurman is entitled to qualified immunity and summary
judgment against Hardin’s fabrication of evidence claim, but not against Hardin’s Brady claim
concerning the failure to produce Thurman’s observation notes.
V.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED as follows:
1.

Plaintiffs’ Motion to Exclude the Opinions and Testimony of Defendant’s Expert

Witness Jack Reid (DN 293) is DENIED.
2.

Defendant’s Motion for Summary Judgment (DN 292) is GRANTED IN PART

and DENIED IN PART.
3.

Plaintiff Clark’s claims against Defendant Thurman are DISMISSED.

4.

Plaintiff Hardin’s claims against Defendant Thurman, except for the Brady claim

related to the disclosure of Thurman’s observation notes, are DISMISSED. Plaintiff Hardin’s
Brady claims against Defendant Thurman for the withholding of the observation notes shall
continue.

27

5.

Plaintiffs’ Motions to Exclude the Opinions and Testimony of Defendant’s Expert

Dr. Julie Howenstine (DN 291) and to Exclude Opinions Falsely Attributed to Dr. George Nichols
(DN 328) are DENIED AS MOOT in light of the dismissal of Hardin’s fabrication of evidence
claims against Thurman.

January 4, 2024

cc:

counsel of record

28