White v. McKinley et al

Filing 417

ORDER by Judge Nanette Laughrey. ORDERED that Defendant Detective McKinley's Motion for Judgment as a Matter of Law 367 and Motion for New Trial and Alternative Motion to Alter or Amend Judgment 369 are DENIED.(Smith, Fran) (Additional attachment(s) added on 3/27/2009: # 1 Verdict-directing instructions) (Bax, Laura).

I N THE UNITED STATES DISTRICT COURT FOR THE W E S T E R N DISTRICT OF MISSOURI W E S T E R N DIVISION

T H E O D O R E W. WHITE, P l a in tif f , v. R IC H A R D McKINLEY, et al, D e f e n d a n ts .

) ) ) ) ) ) ) ) ) ) )

C as e No. 05-0203-CV-W-NKL

ORDER B e f o re the Court are Defendant Richard McKinley's Motion for Judgment as a Matter o f Law after Trial [Doc. # 367] ("JMOL"), and Motion for New Trial and Alternative Motion to Alter or Amend Judgment [Doc. # 369].1 For the following reasons, the Court denies the m o t io n s . I. B a c k gro u n d A. P r o c ed u r a l History

P lain tiff Theodore W. White ("White") was tried three times in Missouri state courts fo r the alleged molestation of his adopted daughter, Jami. The allegations of abuse were m a d e by Jami while a dissolution of marriage action was pending between White and his

These motions are presented in the alternative, requesting: first, judgment as a matter of law; second, a new trial; and, third, altered or amended judgment. 1

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w if e , Tina,2 who was Jami's biological parent. At his first trial, White was convicted of tw elve counts of sexual molestation. Before he was sentenced, he fled to Costa Rica where h e was apprehended and eventually returned to Missouri. B e c a u se White fled the jurisdiction pending sentencing, Missouri's escape rule 3 would n o rm a lly apply. However, the Missouri Court of Appeals waived the rule and permitted him to appeal his conviction because of evidence which was uncovered after his conviction. " W h ite learned after the verdict that Tina White and the chief investigator of the alleged c rim e , [ Detective McKinley,] had been engaged in a romantic relationship . . . and the p ro s e c u to r knew about the relationship for approximately one year but failed to disclose the in f o rm a tio n to the defense." State v. White, 81 S.W. 3d 561, 566 (Mo. Ct. App. 2002). The M is s o u ri Court of Appeals concluded that evidence of the romantic relationship between T in a and Detective McKinley during the investigation "was material impeachment evidence th a t the defense was denied by the suppression of the information." Id. at 570. The Missouri c o u rt also addressed Jami's diary that had been found by Detective McKinley during his in v e stig a tio n , but which he did not seize as evidence. The Missouri court stated that "one d o e s not have to be in law enforcement to know that it would not be routine to review the d ia ry and then return it to the complaining witness." Id. at 569-70. Because the State

Tina is now married to Detective Richard McKinley ("Detective McKinley"). For the sake of clarity, she will be referred to as Tina throughout the opinion rather than by her surname. Missouri has an escape rule that normally precludes any appeal when a defendant has fled the jurisdiction after conviction but before sentencing. 2
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v io late d its duty to disclose evidence favorable to the defense, the Missouri Court of Appeals se t aside White's conviction and remanded the case for a new trial. W h ite 's second trial on the molestation charges resulted in a hung jury, eleven for a c q u itta l and one for conviction. At his third criminal trial, in January and February 2005, W h ite was acquitted. Having remained incarcerated post-appeal and throughout the second a n d third trials, White was released from custody in February 2005. On March 4, 2005, White filed this § 1983 action against Detective McKinley and T in a , alleging that Detective McKinley deprived him of procedural due process in part by f a ilin g to preserve the diary as evidence and failing to disclose his romantic involvement with T in a . White also asserted a claim for conspiracy to violate § 1983 against Detective M c K in le y and Tina, alleging that they conspired together to deprive him of procedural due p ro c e ss .4 Shortly before trial, Detective McKinley filed a motion for summary judgment c laim in g that he was entitled to qualified immunity. Tina also sought summary judgment. A f te r the Court denied Detective McKinley's request for qualified immunity on the 1983 and c o n s p ira c y claims, Tina and Detective McKinley took an immediate interlocutory appeal.

White also filed claims based on other constitutional torts and various common law torts. The court granted summary judgment in favor of Tina and Detective McKinley on these other constitutional claims and White eventually dismissed the common law torts. The City of Lee's Summit, Detective McKinley's employer, was also sued by White, but settled with White early in the litigation. 3

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T h e United States Court of Appeals for the Eighth Circuit considered Tina and D e tec tiv e McKinley's interlocutory appeal in White v. McKinley, 519 F.3d 806 (8th Cir. 2 0 0 8 ). In that case, the Eighth Circuit expressly held that [t]he right Brady describes definitely applies to prosecutors and imposes upon th e m an absolute disclosure duty. But, Brady's protections also extend to a c t i o n s of other law enforcement officers such as investigating officers. H o w e v e r, an investigating officer's failure to preserve evidence potentially u s e f u l to the accused or their failure to disclose such evidence does not c o n s titu te a denial of due process in the absence of bad faith. Villasana v. W ilh o it, 368 F.3d 976, 980 (8th Cir.2004). "[T]he recovery of § 1983 damages r e q u i re s proof that a law enforcement officer other than the prosecutor in te n d e d to deprive the defendant of a fair trial." Id. Consequently, to be v ia b le , White's claim must allege bad faith to implicate a clearly established rig h t under Brady. U p o n review, we agree with the district court that the facts alleged here meet th e bad faith standard. Treating the facts as alleged to be true, a reasonable ju ro r could find Richard deprived White of a fair trial in bad faith by d e lib e ra te ly steering the investigation to benefit his love interest, Tina. R ic h a r d deliberately withheld from prosecutors the full extent of his re la tio n s h ip with Tina and failed to preserve the alleged victim's diary which d id not corroborate the molestation allegations. Failing to preserve the diary d e p riv e d White of his right to a fair trial, in part, because he could not testify ab o u t the diary without waiving his right not to testify. Whether Richard's f a ilu re to disclose the full extent of his relationship with Tina and preserve the d ia ry were done in bad faith are disputed factual questions inappropriate for s u m m a ry judgment. White v. McKinley, 519 F.3d 806, 813-14 (8 th Cir. 2008). With regard to the diary and his re latio n sh ip to Tina, the Eighth Circuit stated: "We hold that no reasonable police officer in R ic h a rd 's shoes could have believed that he could deliberately misrepresent the nature and len g th of his relationship with Tina, or that he could deliberately fail to preserve a child v i c tim 's diary containing potentially exculpatory information." Id. at 814. Because there 4

w e re disputed issues of fact concerning Detective McKinley's state of mind, the Court of A p p e a ls affirmed the District Court's denial of summary judgment and remanded for trial. B. F e d e r a l Trial Evidence

A f ter the case was returned to the District Court, a jury trial was held on White's claim th a t Detective McKinley and Tina denied him his right to a fair trial. The evidence at that trial, viewed in the light most favorable to the verdict, 5 showed that Ted White moved into T in a 's home shortly after they met. At the time, Tina had custody of her two children by a p rio r marriage, Jami and Danny. White eventually agreed to adopt Jami and Danny but their b io lo g ica l father would not agree to terminate his parental rights. In 1995, he changed his m in d and permitted White to adopt both children. Sometime thereafter an acquaintance a sk e d Tina why the children's biological father finally agreed to give up his rights. Tina said s h e threatened to charge him with child molestation if he didn't cooperate. White adopted T in a 's children in January 1996. T h r o u g h o u t their marriage Tina and White spent a lot of money which became a se rio u s problem when White had to change jobs. In the fall of 1997, the parties were openly in conflict and Tina and the children gathered White's belongings while he was gone and put th e m in the garage, locking White out of he house. When White got home, he broke down th e door and went to bed. Sometime thereafter, the White's housekeeper, Nina Morerod

The facts are viewed in the light most favorable to the jury verdict. See Craig Outdoor Advertising, Inc. v. Viacom Outdoor, Inc., 528 F. 3d 1001, 1009 (8th Cir. 2008). The Court will not attempt to summarize all the evidence because it is voluminous. 5

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o b s e rv e d Detective McKinley at the house preparing an estimate for repair of the broken d o o r frame. Tina had told Ms. Morerod that someone was coming to repair the door. D e tec tiv e McKinley admitted at trial that he had a side business doing home repairs. White a n d Tina eventually separated around Halloween after a dispute about a mortgage check w h ic h Tina cashed, keeping fifty percent of the proceeds. During this separation Tina filed f o r divorce. White and Tina eventually reunited and White returned to the family home, but u n b e k n o w n st to White, Tina did not dismiss the divorce petition. Thereafter, Tina told White th a t during their separation she had kissed a Lee's Summit fireman that she met at a bar. The f ire m a n liked motorcycles. Later evidence established that Detective McKinley rode a m o torcycle and was a Lee's Summit policeman. Tina also told a co-worker, Claudia Baker, th a t she had a cop boyfriend who was helping Tina get rid of Tina's husband. After White and Tina reunited, they continued to have disputes about money. In F e b ru a ry 1998, White put Tina on a budget and had the locks changed at his business. On M a rc h 21, 1998, Jami first made allegations of sexual abuse. At the time, she was twelve ye a rs old. After Jami made sexual abuse allegations against White, Detective McKinley was a s s ig n e d to be the lead investigator which was the role he usually took in sexual abuse in v e stig a tio n s for the Lee's Summit Police Department. During that investigation, Detective M c K in le y found Jami's diary. The diary described White as a good father with whom Jami w a n te d to spend more time and Tina as unloving. In the diary Jami said she wanted to be 6

clos er to her mother. As part of his investigation Detective McKinley took pictures of Jami's roo m , her hobby horse, mirrors and door frames, yet he did not seize the diary. The diary late r disappeared and neither Jami nor Tina can say what happened to it.6 D e te c tiv e McKinley did at least two other things that aren't normally done during an in v e stig a tio n of a complaint involving sexual abuse of a child. Detective McKinley declined W h ite 's attorney's offer to have White give a statement. More importantly, Detective M c K in le y interviewed Jami before her CPC exam with Child Protective Services. Law e n f o rc e m e n t officials do not interview victims about the details of a sexual molestation c h a rg e before a trained professional can conduct the CPC exam. This is done to ensure that th e memories of the child are not contaminated by leading questions or suggestive statements b y law enforcement. B e f o re the first trial, the prosecutors learned that Tina and Detective McKinley had a relationship but both Tina and Detective McKinley lied to the prosecutors about the extent o f the relationship. They told the prosecutors that their relationship did not begin until after D e te c tiv e McKinley's investigation was completed. The prosecutors were also told that D e te c tiv e McKinley was not involved with the children before the first trial. Had the p ro se c u to rs known that the relationship was ongoing during the investigation, they would h a v e revealed it to the defense.

Tina told Prosecutor Mettler she had asked Jami for the diary but Jami denied that her mother ever asked her for the diary. Jami also testified that her mother knew where the diary was kept. No one can now remember what happened to the diary. 7

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T h e verdict-directing jury instructions on White's § 1983 and conspiracy claims are a tta c h e d . [See also Doc. # 348, Jury Instructions.] In sum, the jury was instructed that it m u s t render a verdict against Detective McKinley if it found: (1) that Detective McKinley f a ile d to disclose, or failed to preserve, evidence material to White's criminal-trial defense; (2 ) that Detective McKinley did so in bad faith; and (3) that this conduct injured White. [ D o c . # 348, Instr. 15.] The jury was further instructed, "Evidence is material if there is a re a so n a b le probability that, had the evidence been disclosed to the accused, the result of the p r o c e e d in g would have been different." Id. The jury found in favor of White on both counts, a ss e ss in g actual damages in the amount of $14 million and punitive damages against both D e te c tiv e McKinley and Tina in the amount of $1 million each. II. D is c u s s io n A. M o tio n for Judgment as a Matter of Law after Trial7

A significant portion of Detective McKinley's JMOL is devoted to rearguing the issue of qualified immunity already decided by the Eighth Circuit. Because there is ample evidence to prove all the facts relied on by the Eighth Circuit when it denied Detective McKinley's Motion for Summary Judgment on qualified immunity, the Eighth Circuit's opinion stands as the law of the case. See Unigroup, Inc. v. Winokur, 45 F.3d 1208, 1211 (8th Cir. 1995) (stating that doctrine of law of the case prevents relitigation of settled issues in an action, protecting parties' expectations, and ensuring uniformity of decisions, and promoting judicial efficiency); Jones v. United States, 255 F.3d 507, 510 (8th Cir. 2001) (stating that law of the case doctrine extends to all issues implicitly settled by appellate court, not just to actual holdings). Moreover, even if the issue of qualified immunity were to be relitigated, the evidence demonstrates that Detective McKinley is not entitled to qualified immunity because he withheld potentially exculpatory evidence in bad faith. Detective McKinley's argument that a police officer has no obligation to preserve exculpatory evidence if he tells the prosecutor about it is also contrary to the Eighth Circuit's opinion in this case. The Eighth Circuit held that a police officer is responsible if he withholds the evidence in bad faith . Furthermore, there is ample evidence that Detective McKinley did not truthfully tell the prosecutor about the evidence he now claims to have 8

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O n a motion for judgment as a matter of law, the Court must give "great deference to th e jury's verdict." Heaton v. The Weitz Co., Inc., 534 F.3d 882, 889 (8th Cir. 2008) (citation o m itte d ) . To survive a motion for judgment as a matter of law, the nonmoving party must p re s e n t more than a scintilla of evidence. Gill v. Maciejewski, -- F.3d --, No. 07-3451, 2 0 0 8 WL 4777127 (8th Cir. Nov. 4, 2008). The nonmoving party receives the benefit of all in f e re n c e s which can be drawn without resort to speculation. Marvin Lumber & Cedar Co. v . PPG Indus., Inc., 401 F.3d 901, 908-09 (8th Cir. 2005). Indeed, the court must consider the evidence in the light most favorable to the jury verdict. Specifically, we a s s u m e all conflicts in the evidence were resolved in [Plaintiffs'] favor, assume [ P la in t if f s ] proved all facts that [their] evidence tended to prove, and give [Plaintiffs] th e benefit of all favorable inferences that reasonably may be drawn from the proven f a c ts . C r a ig Outdoor Advertising, Inc. v. Viacom Outdoor, Inc., 528 F.3d 1001, 1009 (8th Cir. 2 0 0 8 ) (citations omitted) 1. E x c u lp a to r y Evidence

In the face of overwhelming evidence, Detective McKinley argues that the jury's v erd ict on White's § 1983 claim was without evidentiary support. The Court considers D e tec ti v e McKinley's arguments concerning each piece of evidence in turn, while re c o g n iz in g that it was within the province of the jury to find that the collective absence of e x c u lp a to ry evidence in White's first trial created a reasonable probability that the outcome o f that trial would have been different had the exculpatory evidence been available. United

revealed. 9

S ta te s v. Gonzales, 90 F.3d 1363, 1368 (8th Cir. 1996) (considering whether a criminal d e f en d a n t had stated a Brady claim). a. R e la tio n s h ip Between Tina and Detective McKinley

D e te c tiv e McKinley argues that his relationship with Tina did not violate White's right to a fair trial because he disclosed the existence of the relationship to the prosecutor. In re sp o n s e , White asserts that Detective McKinley failed to disclose the full nature and extent o f the relationship. Specifically, Detective McKinley lied to the prosecutors about: (1) when th e relationship began; (2) his involvement with Tina's children prior to the first trial; and (3 ) Detective McKinley and Tina's intent to deprive White of a fair trial. (1 ) T im in g of the relationship

It is undisputed that Detective McKinley told prosecutors that his relationship with T in a began after he completed his investigation. However, there was evidence from which a reasonable juror could conclude that the relationship began before the abuse allegations w ere even made. Nina Morerod testified that she saw Detective McKinley at the White's r e sid e n c e prior to the abuse allegations, and he was measuring a door for repair. Ms. M o re ro d also said that Tina told her that someone was coming to look at the door and D e te c tiv e McKinley admitted that he had a part time home repair business. While Detective M c K in le y disputes Ms. Morerod's credibility, his lawyer extensively cross-examined her ab o u t her prior statements and otherwise challenged her credibility. Unless Ms. Morerod's te stim o n y was so incredible or impossible that no reasonable juror could believe it, it was up

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to the jury to weigh her credibility. See United States v. Mitchell, 528 F.3d 1034, 1041 (8th C ir. 2008) (citations omitted) ("[A]ttacks on the sufficiency of the evidence based on the w itn e ss e s' credibility are rarely an appropriate ground for reversal. We would reject the e v id e n c e only if it asserted facts straying into the realm of impossibility"). No one could f a irly conclude that Ms. Morerod's testimony at trial was incredible as a matter of law. She w a s emphatic that she saw Detective McKinley come to the house to measure the damaged d o o r and she previously testified to the same thing when she saw Detective McKinley at W h ite 's criminal trial. It was up to the jury to determine whether Ms. Moreod was credible. F u rth e r, there was other evidence from which the jury could infer that a relationship e x iste d prior to the molestation allegations. According to Tina, in early March 1998, White c h e c k e d messages at the White residence and heard a message from Jami warning Tina to " g et rid of the guys before [White] comes home." Although Tina testified that Jami had been jo k in g , Tina also testified that Jami did not usually joke about Tina being unfaithful to White. I n addition, White testified to a statement made by Tina indicating that she was i n v o l v e d in a relationship prior to the allegations. White testified that, in the fall of 1997, T in a told him she had kissed a fireman from Lee's Summit who had a motorcycle. Detective M c K in le y argues that it is speculation to infer that this statement referred to Detective M c K in le y, a Lee's Summit police officer who had a motorcycle. However, Detective M c K in le y's lawyers cross-examined White about this statement (Tr. 404), Tina denied that s h e made the statement about the firefighter (Tr. 1300-1302), and Detective McKinley's

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la w ye rs argued the weight of the evidence concerning the statement (Tr. 2043).8 While the statem en t standing alone might not establish that Tina was seeing Detective McKinley before th e allegations of abuse, in conjunction with the testimony of Nina Morerod, the jury could re a so n a b ly infer that the statement was referring to Detective McKinley and Tina slightly a ltere d the facts to avoid identifying the person she actually kissed. It was for the jury to w e ig h this evidence and from it could logically infer that Tina's relationship with White e x is te d before the allegations of sexual abuse. Finally, even if the jury found that the relationship began during the investigation and n o t before it, the jury could still have found that a constitutional violation occurred A re a so n a b le juror could conclude that Tina and Detective McKinley violated White's right to a fair trial when they told prosecutors that the relationship did not start until after the in v e s tig a t io n was completed and that it only involved going out for a drink. At the time these sta tem e n ts were made, Detective McKinley had already acknowledged that the relationship w a s sexual and had been told by the Chief of Police to end the relationship, a warning that D e te c tiv e McKinley did not heed or report to the prosecutors. Given these facts the jury

At oral argument on his post-trial motions, Detective McKinley argues for the first time that the firefighter statement was only admissible as an admission by a co-conspirator if it was made in connection with the conspiracy; Detective McKinley claims that any such statement occurred before the alleged conspiracy began and was, thus, inadmissible. Detective McKinley did not raise this argument at trial ­ he cites to no place in the record where he did so ­ and he offered no limiting instruction with regard to the statement. The statement is obviously admissible against Tina, and because Detective McKinley did not timely request a limiting instruction, this argument should be deemed waived. Had the request been made at trial, the issue could have been expeditiously resolved. 12

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m ig h t disbelieve Detective McKinley and Tina when they testified that the relationship began af ter the investigation was completed. Indeed, a review of Tina's and Detective McKinley's te stim o n y at trial reveals so many statements that appear to be untrue, that a reasonable juror c o u ld not only discount Tina's and Detective McKinley's statements about when the re latio n sh ip started, but conclude that their efforts to cover up the truth about the relationship w a s evidence of bad faith. (2) D e te c tiv e McKinley's Interaction with Children

T h e re was also evidence that Detective McKinley told the prosecutors that he had no p e rs o n a l involvement with Jami and Danny before trial. Prosecutor Mettler testified that D e te c tiv e McKinley and Tina advised Prosecutor Mettler that the children had no idea that T in a was having a relationship with Detective McKinley. Prosecutor Mettler testified that th e y told her they used a code name - Curt - in speaking of Detective McKinley so that the c h ild re n would not know the identity of the man Tina was dating. However, Tina and Detective McKinley never advised Prosecutor Mettler that D e te c tiv e McKinley was coming to the White residence, helping Jami with her homework, o r helping Tina's son work on motorcycles prior to the first trial. Yet Tina's former cow o rk e r testified that, before the first trial, Tina said her boyfriend, Curt Cox, was having a p o s itiv e influence on her children, as he was helping the children with their homework and w o rk in g on motorcycles with her son. The jury could reasonably infer that Tina was talking a b o u t Detective McKinley when she told the co-worker that her boyfriend was interacting

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w ith her children. Jami also testified that she had sent a letter to a friend before the trial t e l l i n g her that she had gone to "Curt's" house and picked out her room. The jury could c o n c lu d e that Jami was talking about Detective McKinley, particularly because Detective M c K in le y and Tina moved in together shortly after the trial. From this evidence, the jury could infer that Detective McKinley misrepresented the f u ll nature and extent of his relationship with Tina to the prosecutors who could not, th e re f o re , disclose the full nature and extent of the relationship to White for use in his d e f en s e . A prosecutor testified that had she known the extent of the full relationship between D e tec tiv e McKinley and White's children before trial, she would have told White about it. (3 ) I n t e n t to Deprive White of Fair Trial

F u r th e r , there was evidence that Tina and Detective McKinley were plotting against W h ite . Another former co-worker of Tina's testified that, before the first trial, Tina spoke o f her boyfriend helping her to get rid of her husband; Tina told the co-worker that the b o yf r ie n d was a Lee's Summit police officer. Detective McKinley certainly did not disclose s u c h a plot to the prosecutors so that White could use the information in his defense. W h ile Detective McKinley argues the weight of the evidence presented to the jury, th e measure here is whether there was sufficient evidence from which a jury could determine ­ without resort to speculation ­ that Detective McKinley misrepresented to the prosecutors th e full nature and extent of his relationship with Tina and her children, and whether that in te rf e re d with the prosecutor's ability to appropriately determine whether to disclose the

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re la tio n s h ip to White. The record shows unequivocally that that evidentiary standard has b e e n met. b. D ia r y

D e tec tiv e McKinley argues that his conduct with regard to Jami's diary did not violate W h ite 's right to a fair trial for two reasons. First, he argues the diary was not exculpatory; b u t as the Missouri Court of Appeals, the Eighth Circuit and the trial evidence clarified, the d i a ry was exculpatory. Second, he takes the position that he cannot be held liable because h e disclosed the existence of the diary to the prosecutor and he didn't destroy the diary; but u n d e r the Eighth Circuit's holding, Detective McKinley is liable for failing to preserve the d ia ry because the trial evidence showed he did so in bad faith. (1 ) E x c u lp a t o r y Nature of Diary

F irs t, Detective McKinley argues that the diary was not exculpatory on its face and, th e re f o re , could not have been the basis for a finding of liability. While there was no e v id e n c e that the diary spoke directly to the allegations of molestation, there was evidence th a t the diary contradicted those allegations. White testified that he had seen the diary, that it said he was a good father, that it said Jami wanted to spend more time with him, and that it said that Jami wanted more attention from her mother. Such statements could be used for im p e a c h m e n t because Jami may have had a motive to fabricate the abuse allegations to gain h e r mother's attention or to please her mother. They also suggest a positive relationship with h e r father. This is confirmed by the Missouri Court of Appeals which held that the diary was

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e x c u lp a to ry because it could be used for impeachment purposes. In addition, the Eighth C irc u it said that "[f]ailing to preserve the diary deprived White of his right to a fair trial, in p a rt, because he could not testify about the diary without waiving his right to testify." White v . McKinley, 519 F.3d 806, 814. In addition, the Eighth Circuit and Supreme Court have h e ld that a due process violation occurs when a police officer suppresses in bad faith " p o te n tia lly" exculpatory evidence. See Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988); W h ite v. McKinley, 519 F.3d 806, 814 (8 th Cir. 2008); Villasana v. Wilhoit, 368 F.3d 976 (8 th C ir. 2004). This standard recognizes the difficulty of establishing the exculpatory nature of e v id e n c e which has been suppressed in bad faith and is no longer available. T h e jury also heard that, after the diary's disappearance was revealed to a criminal jury, White was acquitted. This could be considered as evidence that the unpreserved diary w a s exculpatory. See Malone v. Walls, 538 F.3d 744, 760 (7th Cir. 2008) (considering the a c q u itta l of a defendant whose trial included exculpatory testimony as indicative that c o n v ic tio n of a co-defendant would not have occurred had the exculpatory testimony been in c lu d e d in his trial). Indeed, there was so much evidence that the diary was exculpatory that D e te c tiv e McKinley's argument to the contrary is frivolous. (2) D is c lo s u r e of Diary's Existence to Prosecutor

Next, Detective McKinley argues that he cannot be liable because he mentioned the e x iste n c e of the diary in a report produced to the prosecutor. He seems to argue that it is o k a y to not preserve evidence even when done in bad faith, if he tells the prosecutor about

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the existence of the evidence. Again, this argument is inconsistent with the Eighth Circuit's o p in io n in this case. The absence of the diary prevented its use for impeachment purposes a n d that problem was not solved by Detective McKinley telling the prosecutors about the d iary. It was the absence of the diary that impaired White's due process rights not his failure to disclose its existence. Thus, the proper inquiry is whether Detective McKinley failed to p re s e rv e the diary and did so in bad faith. It is undisputed that Detective McKinley did not preserve the diary even though he to o k exhaustive photos of Jami's room, her hobby horse, mirrors and door frames. A police p ra c tic e s expert testified that, under normal police practices, there would have been "no q u e stio n or hesitation about collecting [the diary] as potential evidence." (Tr. 1920-22.) The M is s o u ri Court of Appeals said that "one does not have to be in law enforcement to know th a t it would not be routine to review the diary and then return it to the complaining witness." S ta te v. White, 81 S.W.3d 561, 569-70. Even Detective McKinley testified that, in a sexual a b u se case, it is "obvious" that a diary should be taken into custody. Jami testified that D e tec tiv e McKinley took some time to read the diary, and that she did not recall seeing it a g a i n after Detective McKinley had his hands on it. Detective McKinley concedes it d is a p p e are d but claims he left it at the White house. The jury was not required to find that a report mentioning the diary negates the possibility that Detective McKinley failed to p re s e rv e the diary in bad faith.

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A s to Detective McKinley's argument that there had to be evidence that he destroyed the diary, neither the Missouri Court of Appeals or the Eighth Circuit held this was necessary f o r a Brady violation to have occurred. This is particularly so given that the exculpatory e v id e n c e, even according to Detective McKinley, was left in the home of the complaining w itn e s s . See State v. White, 181 S.W.3d 567, 569-70 (2006). c. P r e -C P C Interview 9

D e te c tiv e McKinley argues that the pre-CPC interview cannot form the basis of W h ite's § 1983 claim because neither this Court nor the Eighth Circuit specifically c o n sid e re d it when Detective McKinley's Motion for Summary Judgment was ruled. While th e Eighth Circuit expressly addressed Detective McKinley's relationship with Tina and the d ia ry, its ruling in no way dictated that those two items were the only potential bases for W h ite 's claim that Detective McKinley suppressed and failed to preserve evidence. The E ig h th Circuit stated, "[A] reasonable juror could find Richard deprived White of a fair trial in bad faith by deliberately steering the investigation to benefit [Richard's] love interest, T in a ." White, 519 F.3d at 814. Thus, other evidence that Detective McKinley suppressed e v id e n c e to benefit his love interest with Tina is also properly considered. See Pediatric S p e c ia l ty Care, Inc. v. Arkansas Dept. of Human Servs., 364 F.3d 925, 931 (8th Cir. 2004) (statin g that the district court is free to decide any issue not disposed of on appeal).

The Court assumes that Detective McKinley made an error in the heading of his argument when he suggested that prosecutors were aware of his pre-CPC interview. There is no such evidence and no good faith basis for arguing that such evidence existed. 18

9

W h ite introduced evidence that Detective McKinley met with Jami prior to her CPC in te rv ie w . In the transcript of her CPC interview, Jami stated that, before the CPC interview, a "detective" spoke to her about the molestation allegations. Detective McKinley testified th a t he was the only detective who had been assigned to the case at the time of the CPC in te rv ie w . Even Detective McKinley does not argue that there is insufficient evidence that th is meeting occurred. There is also evidence that a pre-CPC interview by law enforcement would have been im p ro p e r. Detective McKinley admitted that he knew such a meeting would be seriously im p r o p e r ; he admitted that the CPC used trained interviewers and recordings because c h ild re n are susceptible to leading which can produce inaccurate testimony. Prosecutor K a n a tz a r testified that she would expect an officer to document any contact with an accuser i n a police report. The police practices expert confirmed both Detective McKinley and P r o s e c u to r Kanatzar's testimony in this regard. (Tr. 1916-1920.) The record shows that D e te c tiv e McKinley never disclosed the pre-CPC interview to prosecutors. Detective M c K in le y simply denied that the interview occurred. The pre-CPC interview would be e v id e n c e favorable to White's defense and a jury could find that it was material, particularly in light of Detective McKinley's relationship with Tina and the fact that children are easily le d if interviewed before an expert can do an evaluation. See generally United States v. B a g le y , 473 U.S. 667, 676 (1985) (holding that exculpatory evidence includes impeachment e v id e n c e ).

19

It was for the jury to make a determination about the weight of the pre-CPC interview e v id e n c e and the credibility of the witnesses who testified about that meeting. As for the is s u e of qualified immunity, Detective McKinley is correct that there is no case which says th a t a police officer should not knowingly violate department policy and police practices by in te rv ie w in g an alleged victim of sexual abuse and then in bad faith fail to disclose that in te rv ie w to the prosecutor. On the other hand, in White v. McKinley, 519 F.3d 806 (8 th Cir. 2 0 0 8 ), the Eighth Circuit held that White could recover if a reasonable juror "could find that R ic h a rd deprived White of a fair trial in bad faith by deliberately steering the investigation to benefit his love interest." Id. at 814. It specifically noted that there did not have to be a c a se on point since no reasonable officer could conclude that he could deliberately withhold p o te n tia lly exculpatory evidence from a prosecutor in bad faith. Because the evidence of the p re -C P C interview is exculpatory, and a reasonable juror could conclude it was deliberately n o t disclosed to the prosecutor in bad faith, Detective McKinley does not have qualified im m u n ity on this issue. 2. B a d Faith Generally

D e tec tiv e McKinley argues that there was insufficient evidence of bad faith to submit th e issue to the jury. He argues the evidence of bad faith as to each individual item of p o te n tia lly exculpatory evidence ­ the relationship, the diary, and the pre-CPC Interview ­ s u g g e stin g that the jury was required to consider his intent as to each item by considering o n ly evidence pertaining to that item.

20

H o w e v e r, the jury was entitled to consider the totality of the evidence in determining w h e th e r Detective McKinley was acting in bad faith when he deprived White of a fair trial, a n d there was significant evidence of bad faith. As to each item, there was evidence that D e te c tiv e McKinley violated generally accepted practices or his department's express policy. C f. Villasana v. Wilhoit, 368 F.3d 976 (8th Cir. 2004) (finding no evidence of bad faith w h e re investigators sent lab reports to the prosecutor in compliance with agency policy). T h e re was also evidence that Detective McKinley purposefully avoided interviewing White c o n tra ry to generally accepted practices. The jury could reasonably infer improper motive w h e re an experienced police detective consistently violated accepted practices and policy in o n e particular case, especially in light of his motivation for steering the investigation. T h e re was also other evidence of bad faith. There was evidence indicating that D e te c tiv e McKinley, in an attempt to embarrass White, insisted on arresting White rather th a n allowing surrender. There was Tina's admission that her police-officer boyfriend was h e lp in g her to get rid of her husband and the lack of any reasonable explanation for p h o to g ra p h in g in detail the interior of the White's house but failing to seize the diary. The ju ry, listening to Tina and Detective McKinley's testimony, could believe that they were not te llin g the truth at trial and that there was a financial and personal motivation for steering the in v e stig a tio n so White would be convicted . The jury could reasonably infer that Detective M c K in le y was purposely trying to hide evidence favorable to White.

21

3.

C o n s p ir a c y

D e tec tiv e McKinley argues that no reasonable jury could find that he conspired with T in a to deprive White of a fair trial. The Court disagrees. The jury was instructed that, in o rd e r to find a conspiracy, it had to find that: (1) D e tec tiv e McKinley and Tina reached an agreement to e ith e r fail to disclose, or cause the prosecutors to fail to d is c lo s e , or fail to preserve, evidence material to White's c rim in a l defense; (2) Detective McKinley and Tina took such actions in bad f a it h ; (3 ) e ith e r Detective McKinley or Tina took an action in f u rth e ra n c e of their agreement; and (4) th a t their agreement and one or more of their actions in ju re d White. [Doc. # 348, Instr. 16.] a. A g reem en t

F irst, Detective McKinley argues that there was no evidence of agreement. The jury w a s free to infer agreement from the circumstantial evidence presented at trial. As discussed a b o v e , that included the evidence that Detective McKinley ­ an experienced detective in v e stig a tin g sexual abuse cases ­ repeatedly disregarded accepted practices and department p o lic y in conducting the investigation (the pre-CPC interview, the diary, and the

22

r e la tio n s h ip ). There was also testimony indicating that Detective McKinley disregarded a c ce p te d practices by not following up on White's offer to give a statement and by lying a b o u t the circumstances of White's arrest. There was evidence that the relationship existed b e f o re the investigation was completed and that Detective McKinley and Tina lied about this to prosecutors. There was evidence of a financial motive to have White convicted of a f e lo n y. One of Tina's co-workers offered testimony indicating that Tina bragged that she and D e te c tiv e McKinley were going to get rid of White. See White, 519 F.3d at 816 (noting that th e elements of a conspiracy are rarely established through means other than circumstantial e v id e n c e). This circumstantial evidence - combined with the jury's credibility determinations o f Detective McKinley's and Tina's testimony and previous inconsistencies in their sta tem e n ts - provided a sufficient basis for a finding that there was an agreement. b. A c t in Furtherance

D e te c tiv e McKinley argues that there was no evidence of an act in furtherance of a c o n sp ira c y. The evidence regarding the lying about the relationship, failing to preserve the d iar y, and the pre-CPC interview alone is more than adequate for a finding of an act in f u rth e ra n c e. In addition, there was evidence from which a reasonable juror could conclude that Detective McKinley, under oath, misled White's lawyer about Detective McKinley's in te re st in the investigation: at a time when he was having a full-blown affair with Tina, D e te c tiv e McKinley stated that he had no personal interest in the investigation. 4. C o n c lu s io n

23

D ra w in g all reasonable inferences in favor of White, the Court must deny Detective M cK inley's motion for judgment as a matter of law. There was evidence from which a jury c o u ld find for White ­ without speculation ­ on both his § 1983 and conspiracy claims. B. M o tio n for New Trial

D e te c t iv e McKinley argues that he is entitled to a new trial or amended judgment b e c au s e the Court's evidentiary rulings ­ as opposed to the evidence ­ improperly influenced th e jury's verdict. "A motion for a new trial based on erroneous [evidentiary rulings] should n o t be granted unless the evidentiary ruling[s] [were] so prejudicial that a new trial would lik e l y produce a different outcome." Radloff v. City of Oelwein, Iowa, 380 F.3d 344, 349 (8 th Cir. 2004) (citation omitted). "On a motion for new trial, the district court is entitled to in te rp re t the evidence and judge the credibility of witnesses, but it may not usurp the role of th e jury by granting a new trial simply because it believes other inferences and conclusions a r e more reasonable." Van Steenburgh v. Rival Co., 171 F.3d 1155, 1161 (8th Cir. 1999) (c ita tio n omitted). A movant may not use a motion for a new trial "to introduce new evidence, tender n ew legal theories, or raise arguments that could have been offered or raised prior to entry o f judgment." Parton v. White, 203 F.3d 552 (8th Cir. 2000) (citation omitted). The movant m u s t "specifically identify the alleged erroneous ruling and the improperly excluded

24

e v i d e n c e ." Moses.com Sec. Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1059 (8th Cir. 2005) (citations and internal quotations omitted).1 0 1. E v id e n c e of Guilt

T h e refrain of Detective McKinley's motion for a new trial is that the Court unfairly d e n ie d him the opportunity to prove that White was guilty of the molestation allegations. At th e outset of trial, the Court found that White's guilt or innocence in the criminal trials was n o t relevant to the ultimate issues of this case of whether Detective McKinley, in bad faith, d e p riv e d White of a fair trial and conspired with Tina to do so. In the United States, even t h e guilty are entitled to a fair criminal trial. Kempe v. U.S., 151 F.2d 680, 690 (8th Cir. 1 9 4 5 ). Allowing evidence of innocence and guilt absent some purpose directed to the issues i n this case would have created a mini-trial (and several sub-mini-trials) on the issue of w h e th e r White was guilty of molestation. W h e re evidence tending to show White's guilt or innocence was probative of another is s u e in the case, the Court considered whether that evidence was admissible. Several pieces o f evidence and argument pointing toward White's innocence came before the jury because th e y were admissible, not to establish innocence but for other purposes. The Court also e x c lu d e d several pieces of evidence tending to show White's innocence (evidence that Jami c h a n g ed her story over time, evidence that Jami's brother contradicted her story and that Tina

Detective McKinley fails to cite to the record for several of his arguments. The Court has endeavored to locate support for his arguments in the record, and will only note his omission where it appears he waived an argument by not giving the Court an opportunity to address it at trial. 25

10

a n d Detective McKinley may have interfered with Jami's brother's testimony, medical e v id e n c e that Jami showed no physical signs of trauma despite allegations which would have in d ic a te d to the contrary, and expert opinion that Jami's stories had hallmarks of undue in f lu e n c e by Detective McKinley and Tina). The Court allowed introduction of several pieces of evidence and argument pointing to w a rd White's guilt, several slipped in without objection by White, and several came in w h e n Detective McKinley's attorneys violated the Court's orders. The Court excluded s e v e ra l pieces of evidence tending only to show White's guilt, including police reports from D e te c tiv e McKinley and other officers, medical reports concluding that Jami had been m o le ste d , Jami's CPC interview, testimony about potential physical evidence of molestation, te stim o n y that White had propositioned a fourteen-year-old babysitter some time before the a lle g a tio n s , and testimony that prosecutors believed White was guilty. In addition to the evidence discussed separately in his motion for a new trial, D e te c tiv e McKinley is generally concerned with two particular statements. He is concerned th a t White testified that "the truth surfaced" at the second trial. The Court did sustain D e te c tiv e McKinley's attorney's objection to the ambiguous statement (which could have ref erred to the "truth" about Detective McKinley and Tina's conduct), and instructed the jury th a t the case was not about whether White was guilty or not guilty. Detective McKinley is a ls o concerned about White's attorneys' argument that, at the second trial, the one holdout ju ro r "closed [his] mind[] and wouldn't deliberate," as indicating that White was not guilty

26

o f molestation. Again, the Court sustained Detective McKinley's attorney's objection to the s ta te m e n t. Detective McKinley seems to argue that, because the Court found so much of White's e v id e n c e admissible, it was fundamentally unfair for the Court not to balance that admissible e v id e n c e with the inadmissible evidence proffered by Detective McKinley. However, it was u p to Detective McKinley to develop his own defense with relevant, admissible evidence and p e rs u a siv e argument. The Court will next discuss the specific evidentiary rulings which D e tec tiv e McKinley raises in his Motion for New Trial. 2. C o s ta Rica

D e te c tiv e McKinley argues that he should have been permitted to introduce evidence th a t White would have spent very little time, if any, incarcerated had he not fled to Costa R ica .1 1 Detective McKinley notes that Missouri law permits criminal defendants to remain o u t on bond pending appeal and claims that had White not fled, he would have been on bond u n til his appeal was finally resolved. Based on this argument, Detective McKinley moved to exclude any evidence of White's incarceration in Costa Rica or Missouri because it was s p e c u la tio n to assume what would have happened had White not fled. White argued that

Detective McKinley also argues that White's conviction would have been reversed sooner had White not fled. According to Detective McKinley, White's lawyers learned of the relationship between Detective McKinley and Tina within a few weeks of White's flight; Detective McKinley argues that the lawyers could not take any action on the information ­ such as request a new trial or remain out on bond pending appeal ­ because White was a fugitive whose whereabouts were unknown. Detective McKinley did not raise this argument at trial and does not include a cite to the record where he contends that he did. This is so even though the issue of Costa Rica was discussed at great length both pretrial and during the trial. 27

11

e v id e n c e of all of White's incarceration was relevant to damages. He argues prison is the n a tu ra l consequence of depriving someone of a fair trial and, therefore, he should be p e rm itte d to recover for the injuries he sustained as a result of the very harsh conditions of a Costa Rican jail. The Court excluded evidence of White's Costa Rican incarceration, and allowed e v id e n c e of White's incarceration in the United States. The Court considered the probative v a lu e versus the prejudicial impact of flight and Costa Rican prison conditions, as well as the c o llate ra l nature of evidence that White would not have been incarcerated absent the flight. W h ile the Court determined that a jury could not find that Costa Rican prison conditions w e re a foreseeable result of an unfair trial, the Court also found that it was speculation to say th a t White would not have been incarcerated in the United States absent his flight, p a rticu lar ly in the absence of testimony by White's criminal trial judge, or comparable ru lin g s in any Missouri court, or expert testimony. In Detective McKinley's offer of proof, Detective McKinley indicates that he would h a v e offered the following on the issue of whether White would have been incarcerated ab sen t his flight: White's testimony that he fled following his conviction and before s e n te n c in g in the first criminal trial; the Missouri Court of Appeals opinion; testimony from W h ite 's criminal defense attorney that he would have requested White remain free on bond p e n d in g appeal had White not fled; and testimony "about the likelihood that [White] would n o t have been incarcerated and free on bond following the Missouri Court of Appeals

28

re v e rs a l of [White's] criminal conviction on April 30, 2002. Further testimony that the a p p e lla te opinion . . . would have been issued earlier in time but for [White's] voluntary flight to Costa Rica." [Doc. # 358 at 1-2.] First, Detective McKinley does not describe what this latter "testimony" would have b e e n , or who would have testified on the topic. Other than attempting to ask White's defense a tto r n e y whether he would have attempted to keep White out of jail pending appeal ­ in v io la tio n of the Court's in limine order ­ Detective McKinley did not offer such evidence at a n y point leading up to or during trial. Detective McKinley offered, and still offers, no actual e v id e n c e ­ expert or otherwise ­ that White, a convicted child molester, would have been re le a se d on bond pending his re-trial. Once the Court ruled the issue, Detective McKinley d id not even seek leave to find such evidence. Nor does his offer of proof identify with any sp e c if icity the evidence which would show he would have been released on bond. This is s o even though the Court gave Detective McKinley extra time after trial to make his offer of p ro o f . J u ro rs are not expected to know the intricate workings of the criminal justice system; th e y would have needed evidence to help them determine: (1) whether bail was available f o llo w in g conviction, (2) how bail would have been assessed in the trial judge's discretion, ( 3 ) how the specific factors of White's alleged crime would have influenced bail decisions,1 2
12

At least as to the time period following White's conviction, Section 547.170 of the Missouri Revised Statutes indicates that bail was not available, as White was convicted of a sexual offense where the victim was less than seventeen years of age. Detective McKinley's attorney never distinguished at trial between release following reversal and release on bond 29

(4 ) whether White would have received a bond at any particular point, (5) the amount of that b o n d , and (6) whether there was money for the bond. Because Detective McKinley did not p ro v id e a non-speculative foundation for admission of the flight, it was inadmissible under R u le s 104(b), 401, 402, and 403 of the Federal Rules of Evidence. See Murphy v. Missouri D e p t . of Corr., 506 F.3d 1111, 1116 (8th Cir. 2007). A t the request of Detective McKinley, the Court prevented the Plaintiff's testimony a b o u t prison conditions in Costa Rica. Thus, the Court ensured that neither side would b en ef it from the Costa Rica detour. 3. P r io r Trials

D e te c tiv e McKinley argues that the Court should not have admitted evidence that W h ite 's second trial resulted in an eleven-to-one hung jury, and that his third trial resulted in acquittal. Detective McKinley relies on cases stating that evidence of acquittal is not a d m is s ib le to establish innocence or as collateral estoppel in a later case. However, evidence o f acquittal is admissible for other purposes. See, e.g., Monteiro v. City of Elizabeth, 436 F .3 d 397, 406 (3d Cir.) (finding that the district court did not abuse its discretion in allowing e v id e n c e of acquittal to show damages), cert. denied sub nom, Perkins-Auguste v. Monteiro, 5 4 9 U.S. 820 (2006); Nance v. Vieregge, 147 F.3d 589, 591 (7th Cir. 1998) (indicating that e v id e n c e of acquittal would be admissible to establish damages for wrongful incarceration in denial of access to courts claim); Sloman v. Tadlock, 21 F.3d 1462, 1472 (9th Cir. 1994)

pending appeal. 30

( f in d in g that evidence of acquittal was properly admitted to establish damages regarding cost o f defending improper criminal charges). Here, the Court admitted the evidence of the a c q u itta l and the hung jury, finding it relevant to the issues of damages and causation; i.e., w h e t h e r exculpatory evidence "would have put the case in a different light so as to u n d e rm in e confidence in the outcome." [Doc. # 348, Instr. 15, 16.] The jury could consider th e fact that the one criminal jury that did not hear the undisclosed/unpreserved evidence c o n v icte d White, whereas the two criminal juries who heard it did not.13 In response to the evidence of the hung jury and the acquittal, Detective McKinley a tte m p t e d to show that White's second and third trials had outcomes different than the first f o r reasons other than the newly-admitted evidence concerning the relationship, diary, and p re -C P C interview. For example, he introduced evidence and argued that White had a better lega l team for those trials than he did for the first and those trials took substantially longer. T h e jury was allowed to consider this evidence. Yet Detective McKinley's counsel did not d e v o te as much time to developing the evidence helpful to him as he did to arguing about e x c lu d in g evidence helpful to White. The Court specifically invited Detective McKinley to submit a limiting instruction on th e issue of the hung jury and acquittal. He did not submit such an instruction in writing, and p o in ts to no portion of the record where he contends he made a verbal request for such an

Evidence of the second and third trials was also generally relevant to the issue of damages: the jury could infer that, had White received a fair trial in the first instance, he would not have had to undergo the second and third trials or incur related fees. 31

13

in s tru c tio n . To the extent Detective McKinley is concerned that the jury considered the hung ju ry and the acquittal as evidence that White was innocent of molestation, the Court made it clear that that issue was not before the jury. (Tr. at 347.) 4. T estim o n ia l Immunity

D e te c tiv e McKinley argues that the Court erred by not recognizing that he had te stim o n ia l immunity with regard to incomplete or false statements he gave during a d e p o sitio n in the criminal proceedings. In support of this argument, Detective McKinley c ite s to a § 1983 case where a police officer was found to have immunity where a plaintiff s o u g h t damages for the officer's perjured statement. See Briscoe v. LaHue, 460 U.S. 325 (1 9 8 3 ). Here, White did not seek damages based on perjured testimony; he sought damages b a s e d on an alleged bad faith withholding of potentially exculpatory evidence. See Manning v . Miller, 355 F.3d 1028, 1033 (7th Cir. 2004) (stating that Brady claim encompassing false tes tim o n y was not impermissible run around testimonial immunity where claim went well b e yo n d that testimony itself). The Court allowed White to question Detective McKinley re g a rd in g the deposition testimony as it was relevant to whether Detective McKinley was ac tin g in bad faith with regard to disclosing the relationship. (Tr. at 486- 490).14

The Court, however, did not allow Prosecutor Mettler to offer a prohibited opinion on Detective McKinley's credibility; though, at one point in closing argument and in violation of the Court's order, White's attorney used the word "perjury" in reference to Detective McKinley's deposition testimony, the Court sustained Detective McKinley's attorney's objection. 32

14

D e te c tiv e McKinley also argues that the Court should have admitted testimony from P r o s e c u to r Mettler that, after Detective McKinley's deposition, he asked Prosecutor Mettler w h e th e r he had testified correctly and Prosecutor Mettler stated that he had done so. (Tr. 1 7 1 4 (emphasizing, on questioning by the Court, that this was Detective McKinley's arg u m en t regarding Prosecutor Mettler's testimony on Detective McKinley's deposition)). Detective McKinley testified at length concerning his deposition testimony; he te stif ie d that it was truthful and offered an explanation for how it could be interpreted as s u c h ; his lawyer argued his explanation in closing. (Tr. at 576-589, 1677-86, 1692-94, 17848 5 , 2035-36.) To the extent that Detective McKinley, albeit ineffectively, intended to argue th a t his very questioning of Prosecutor Mettler about whether his testimony was appropriate sh o w e d that he was not acting in bad faith, refusal to admit evidence of the questioning via P ro se c u to r Mettler does not warrant a new trial, given the substantial evidence of bad faith in this case and the ambiguous inference that could be drawn from Detective McKinley's in q u iry. Even if such evidence had been admitted, there is no reasonable likelihood, given th e testimony of Tina and Detective McKinley, that the outcome of this case would have b e e n different. 5. I n v e s tig a tio n

D e te c tiv e McKinley complains that he was entitled to introduce evidence of the e n tire ty of the investigation to demonstrate the thoroughness and quality of the investigation. H o w e v e r, Detective McKinley sought only to introduce the substance of the evidence his

33

in v e stig a tio n revealed, not the protocols he followed or the steps he took in completing the in v e stig a tio n . Detective McKinley, in essence, argues that, because the jury was not p e rm itte d to hear evidence that White was guilty of molestation, the jury could only infer that D etec tiv e McKinley acted in bad faith. Detective McKinley asserts that "each and every a sp e c t of [his] investigation should have been presented to the jury so they could make the u ltim a te determination as to whether the investigation was good, bad, or somewhere in b e t w e e n ." [Doc. # 369 at 16.] This clarifies Detective McKinley's fundamental

m is u n d e rs ta n d in g of the case. White may have been guilty and Detective McKinley may h a v e conducted an otherwise acceptable investigation, but if he deliberately suppressed or f a ile d to preserve specific evidence in bad faith, he violated White's right to a fair trial. The f a ct that Detective McKinley thoroughly investigated Jami's complaint does not indicate that h e had a good faith reason for not securing the diary or failing to reveal to the prosecutor his tru e relationship with Tina. Evidence that Detective McKinley revealed other exculpatory p ro o f would logically show that his omission as to the diary, relationship and PCP exam was u n in te n tio n a l; but doing a good job to find evidence that tended to prove White's guilt does n o t.1 5 Indeed, showing that he conducted a thorough investigation, except for leaving the d ia ry with the complaining witness, failing to document pre-CPC interview and making m is le a d in g statements about his relationship with Tina, would tend to show he was acting
15

When questioned by the Court, Detective McKinley's attorney specifically stated that he did not seek to introduce evidence of his investigation to establish that Detective McKinley had so much evidence of guilt that he did not take the diary into custody because it was merely cumulative. 34

in bad faith, not good faith; i.e., he knew how to conduct a thorough exam but chose not to w h e n it came to exculpatory evidence. F in a lly, the inflammatory and collateral nature of the investigation evidence ­ which w a s, in essence, evidence of White's guilt ­ would have far outweighed any probative value in showing that Detective McKinley's investigation was thorough. a. A rrest

D e tec tiv e McKinley complains that the Court should not have permitted White to in tro d u c e evidence concerning Detective McKinley's arrest of White at his workplace, e sp e c ia lly because the Court did not permit Detective McKinley to introduce all the evidence g a th e r e d in the investigation. The Court admitted that evidence as relevant to bad faith: W h ite's contention was that Detective McKinley normally would allow a defendant to s u rre n d e r but arrested White instead, in a malicious effort to embarrass him. There was tes tim o n y indicating that White's criminal attorneys had made arrangements for White to s u rre n d e r voluntarily. There was testimony indicating that Detective McKinley may have lied to his sergeant about whether Detective McKinley arrested White, or whether White s u rre n d e re d . Detective McKinley had the opportunity to present evidence addressing w h e th e r the arrest was proper and typical, but he did not. The manner in which Detective M c K in le y interacted with White on the one occasion when they had face-to-face contact was re le v a n t to whether Detective McKinley acted in bad faith. b. F o u r te e n -y e a r -o ld Babysitter

35

D e tec tiv e McKinley complains that the Court excluded evidence that, years prior to th e molestation allegations, White asked a fourteen-year-old babysitter to kiss him. Because W h ite denies the incident and several witnesses were involved, this issue presented another o p p o rtu n ity for a mini-trial on whether the event actually occurred. It is also only relevant to the issue of guilt or innocence.1 6 More importantly, the evidence is excludable because p ro o f of proclivity is not generally admissible under the Federal Rules of Evidence. Detective McKinley argues that the evidence should have been admitted under Rule 4 1 5 of the Federal Rules of Evidence (stating that evidence of a civil defendant's prior c o m m is s io n of sexual assault or child molestation may be considered). The Court is u n w illin g to extend that Rule - intended to protect sexual assault victims - so as to allow te stim o n y of a plaintiff's prior misconduct in a case alleging police misconduct. Particularly in a case in which the plaintiff's guilt or innocence is not relevant to the ultimate issues. See g e n e ra lly Berry v. Oswalt, 143 F.3d 1127 (8th Cir. 1998) (finding, in § 1983 case of sexual h a ra ss m e n t against correctional officer, that evidence of officer's treatment of other inmates w a s inadmissible). This highly-inflammatory testimony has little, if any, probative value on a n y issue other than White's guilt, and under the Federal Rules of Evidence, it is not even

Detective McKinley now attempts to argue - as he did not at trial ­ that the babysitter evidence is relevant to show that any of his alleged shortcomings were understandable in light of the significant evidence of guilt. The Court carefully considered the arguments Detective McKinley did make about admissibility of the evidence, and even considered changing its ruling after trial had commenced, but Detective McKinley specifically disavowed the argument he now makes. 36

16

a d m is s ib le to show guilt when it is being offered against a plaintiff in a case involving police m is c o n d u c t. c. M a rch 8

D e te c tiv e McKinley argues that the he should have been permitted to introduce e v id e n c e that White molested Jami on March 8, 1998, a date on which Jami alleged m o les tatio n and for which White claimed an alibi. Specifically, Detective McKinley asserts th a t he should have been allowed to introduce evidence that Nina Morerod found blood on J a m i's panties the following day. White disputed this evidence, indicating there was evidence th a t Morerod was unsure of the date, that the blood spot may have been the result of an in f e ctio n for which Jami had been treated, that adolescent Jami had complained of stomach c r a m p s in that time frame and may have started her period, and that spotting was not c o n sis te n t with the abuse which allegedly occurred on March 8. Detective McKinley offered th is evidence to establish "the truth of what Jami [alleged]." (Tr. at 1002.) W h ile not allowing the inflammatory details, the Court did admit