Woodworth v. Hulshof et al

Filing 248

ORDER granting 225 defendant Kenneth Hulshof's motion for summary judgment and granting 238 defendant Judge K. Lewis' motion for summary judgment. As these were the only remaining defendants, this case is DISMISSED. Signed on 3/10/17 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
MARK EUGENE WOODWORTH,
Plaintiff,
v.
KENNETH HULSHOF, et al.,
Defendants.

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Case No. 4:14-cv-06090-FJG

ORDER
Pending before the Court are (1) Defendant Kenneth Hulshof’s Motion for
Summary Judgment (Doc. No. 225); and (2) Defendant Judge K. Lewis’ Motion for
Summary Judgment (Doc. No. 238). Both motions are considered below.
I.

Background
Plaintiff filed the instant case on August 11, 2014. Plaintiff originally named 17

defendants, including both state actors and private individuals. In plaintiff’s First
Amended Complaint (Doc. No. 35, filed on November 14, 2014), plaintiff alleges
generally that he was twice wrongfully convicted of the murder of Catherine Robertson
and other offenses in Missouri state courts, and the defendants in this matter conspired
with one another to conduct a sham investigation, fabricate false evidence, and
suppress exculpatory evidence for many years, resulting in plaintiff spending nearly 18
years in prison. In July 15, 2014, following successful habeas proceedings, all charges
against plaintiff were dropped. Plaintiff’s First Amended Complaint brings suit against 16
named defendants: (1) Lyndel Robertson (a former farming partner of plaintiff’s father,
husband of the murder victim, and who was also shot three times in the face and once
in the right shoulder on the night of the murder); (2) Rochelle (Robertson) Koehly

(daughter of Lyndel Robertson); (3) Brandon Patrick Hagan (a/k/a Brandon Patrick
Thomure, former boyfriend of Rochelle Koehly); (4) Kenneth Lewis (former State of
Missouri Circuit Judge of the 43rd Judicial Circuit); (5) Gary Calvert (former Deputy
Sheriff for Livingston County, Missouri); (6) Terry L. Deister (a private investigator hired
by Lyndel Robertson to investigate the murder, and a friend of Gary Calvert); (7) R.
Brent Elliott (former prosecuting attorney of Livingston County, Missouri, personal
attorney to Kenneth Lewis, and represented the Livingston County Juvenile office in
certifying plaintiff as an adult); (8) Kenneth Hulshof (former employee of the Missouri
Attorney General, special prosecutor appointed to plaintiff’s first trial); (9) John Williams
(former employee and farming partner of Lyndel Robertson); (10) David Miller (a police
officer and member of the Chillicothe Missouri Police Department); (11) the Livingston
County Sheriff’s Department; (12) Livingston County; (13) the City of Chillicothe Police
Department; (14) the City of Chillicothe; (15) Rachel Smith (prosecuting attorney at
plaintiff’s second trial) and (16) Jenny Smith (a member of the Missouri State Highway
Patrol).
Following the Court’s orders on various plaintiffs’ motions to dismiss, as well as
stipulations of dismissal filed by various parties, the only remaining defendants in this
case are the estate of Judge Kenneth Lewis (who died in 2016) and Kenneth Hulshof.
The following claims remain pending against Lewis and Hulshof: Count I, 42 U.S.C. §
1983, Destruction and/or Suppression of Exculpatory Evidence, under the 5th and 14th
Amendments; and Count IV, 42 U.S.C. § 1983 Conspiracy to Deprive Constitutional
Rights. Defendant Hulshof argues that (1) the allegations made against him in the
complaint lack admissible evidence; (2) even if there were admissible evidence, he is
entitled to absolute prosecutorial immunity as to his preparations and presentation of
2

evidence before the grand jury and during Woodworth’s first trial; and (3) as to the
limited communications between Judge Lewis and him in the two-day period before
Hulshof being appointed special prosecutor, those communications did not violate the
14th Amendment and he is entitled to qualified immunity as to those communications.
Defendant Lewis argues that (1) the allegations made against him lack admissible
evidence; and (2) even if material disputes of fact existed, he is entitled to absolute
judicial immunity and/or qualified immunity as to the allegations made by plaintiff.
II.

Facts
Catherine and Lyndel Robertson were shot November 3, 1990; Catherine died

shortly after being shot, but Lyndel Robertson survived. Judge Kenneth Lewis was the
presiding judge for the 43rd Judicial Circuit (where the shooting happened) from
approximately 1982 to 2000. At the time of the shooting, Doug Roberts was Livingston
County Prosecuting Attorney.
On November 21, 1990, eight days after her parents were shot, Rochelle
Robertson filed an adult abuse petition against Brandon Thomure (her ex-boyfriend) in
the Circuit Court of Livingston County. She alleged that Brandon hit her in the past and
had made “frequent harassing telephone calls to me since November 1st.” She claimed
she was afraid of Brandon because “he may have murdered my mother and attempted
to kill my father on November 13th.” The court granted the petition and entered an order
of protection against Brandon Thomure.

Brent Elliott, a local attorney, represented

Rochelle Robertson in the adult abuse proceeding. Immediately after the shootings
Lyndel Robertson was adamant that Brandon Thomure be prosecuted for the crimes;
however, it appears he changed his mind at some later time.

3

In June 1991, Lyndel Robertson hired Terry Deister as a private investigator to
investigate the Robertson shooting. Deister also assisted Robertson in relation to a civil
lawsuit Claude Woodworth (plaintiff’s father) had filed against him regarding the
dissolution of their farming partnership. Gary Calvert, a deputy sheriff of Livingston
County, agreed to work with Deister on the investigation of the shooting and they
agreed to keep Deister’s involvement a secret from Sheriff Leland O’Dell.
Deister regarded plaintiff Mark Woodworth as the prime suspect as soon as he
got involved in the investigation. During his first meeting with Calvert, Deister asked
what focus had been given to Mark Woodworth, and Calvert replied almost none.
Deister proposed shifting the focus of the investigation to Mark Woodworth, and Calvert
agreed.

Deister had the investigators “assume” that evidence which implicated a

suspect other than plaintiff “did not exist,” thereby opening up the possibility of pursuing
plaintiff. Plaintiff asserts that Brent Elliott, who served as Judge Lewis’s personal
attorney on an unrelated legal issue in 1990, served as a consultant to the private
investigation led by Deister. It appears from Deister’s testimony that he talked to Elliott
on a number of occasions; however, the substance of those conversations is not
apparent from the record. See Doc. No. 242, Ex. 7, MW 7847-7855, 7903 (indicating
that Elliott was not “paid counsel” for the investigation; however, Deister indicated that
he had a “confidential relationship” with Elliott, Ex. 7 at MW 7904)). Deister did not
contact Doug Roberts for advice because Lyndel Robertson and Gary Calvert believed
Roberts did not know what he was doing.
At some time prior to Plaintiff Woodworth being charged, Lyndel Robertson
stopped by the Livingston County Prosecuting Attorney’s office to see how the case was
going and spoke to prosecutor Doug Roberts. Robertson testified that Roberts told him
4

that there was not sufficient evidence to go forward with charges against Mark
Woodworth and that he was not going to pursue charges against him. Calvert and
Deister told Robertson that they needed to get a special prosecutor because Doug
Roberts couldn’t handle the job.
On September 16, 1992, Deister wrote a letter to Judge Lewis for Lyndel
Robertson to attempt to get Doug Roberts to recuse himself as prosecutor.1 Doc. No.
242, Ex. 7 (testimony of Deister), at MW7847; Ex. 13 (testimony of Robertson), at
MW7975. Robertson read and approved the letter. Doc. No. 242, Ex. 7, at MW 784849. In that unsigned letter, Mr. Robertson described the details of the shooting: The
incident occurred “[a]t approximately midnight November 13, 1990 while my wife Cathy
and myself and our four children were asleep inside our home, … someone entered our
home shooting both my wife any myself.” Cathy Robertson “was shot twice and
apparently died without waking.” Robertson stated that he “didn’t realize we were being
shot” and “only remember[ed] looking at [his] wife and seeing blood all over her” and
“feeling terrible.” Robertson further stated that he had hired Terry Deister as a private
investigator to assist Gary Calvert of the Livingston County Sheriff’s Department in the
investigation of the shooting of himself and his wife. The letter further stated that
through the “combined efforts” of Deister and Calvert “a suspect was developed” and
alluded to rumors that his “business partner was a suspect in this murder case.” He
also made derisive comments about Livingston County Prosecutor Doug Roberts. See
Doc. No. 242, Ex. 15 (unsigned letter dated September 16, 1992).

1

There is no indication that this letter was sent to or received by Judge Lewis from the
record; the only copy of the letter is an unsigned document appearing at Doc. No. 242,
Ex. 15. Thus, it is unclear to this Court how this could be considered Brady material
that defendants Lewis or Hulshof should have provided to plaintiff.
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One year later, Deister prepared another letter to Judge Lewis for Lyndel
Robertson that criticized Roberts and urged Lewis to convene a grand jury. In that letter,
dated September 24, 1993, Mr. Robertson stated in full:
After talking to Prosecuting Attorney Doug Roberts, I feel he should be
released of his duty in my particular case.
I feel he is not giving this case his full attention. Gary Calvert and my
private investigator have spent countless man hours on this case. All the
evidence was compiled and presented to Doug Roberts in written reports
in July of 1993. It is now going on two (2) months since he received this
and he has not been in touch with me as promised. I know Mr. Roberts
does not feel that this case is any more important than any other case he
has in front of him, as he clearly stated in his letter to me dated July 27,
1993, which I received after I personally spoke with him in his office.
This has be [sic] a constant disruption in my life since November of 1990
when it all started. My children and I would like to be able to put this bad
memory in the back of our minds, knowing the law had done everything in
their power. Until this time, I do not feel justice has been served and my
life is at a standstill.
I am pleading with you to act upon this, within your power, to have this
case presented before a Grand Jury.
Doc. No. 292, Ex. 3. After receiving the September 24, 1993, letter from Robertson,
Judge Lewis summoned Doug Roberts to his office and handed him a copy of the letter.
Ex. 7, at MW 7742.
In response, in a letter dated October 5, 1993, Doug Roberts wrote to Judge
Lewis in regards to the Robertson matter, stating in full:
It has come to my attention that the complaining witness in this matter has
requested you disqualify me for “lack of enthusiasm”. Mr. Robertson
confuses my desire to make a thorough review of all the reports in this
case with a lack of enthusiasm. I can understand his frustration, but recall
that soon after this crime, Mr. Robertson was adamant that we charge
another young man. Had his decision been rubber-stamped by this office,
an innocent person might have been prosecuted.
A “lack of enthusiasm” is not grounds to seek, nor order, the
disqualification of a prosecuting attorney. For me to accede to his request
6

invites the establishment of a dangerous precedent. However, I recognize
that cases of this magnitude may justify unique approaches.
The appropriate disposition of this matter requires that the prosecuting
official have the confidence of, as well as confidence in, the complaining
witness. This I do not have.
Therefore, I disqualify myself in this matter and respectfully request you
appoint the office of the Attorney General to represent the State of
Missouri.
Doc. No. 226, Ex. C, p. 4.
Lewis testified in 2011 in relation to Plaintiff Woodworth’s post-conviction
proceedings that that Roberts “was wrong” to conclude that there was insufficient
evidence to proceed to a grand jury against Mark Woodworth, given that two juries had
found Woodworth guilty beyond a reasonable doubt and a grand jury found him guilty by
probable cause. Ex. 1, at MW3198. On October 7, 1993, Lewis convened a grand jury
to investigate the murder of Catherine Robertson and assault of Lyndel Robertson.
Lewis was prompted to bring about a grand jury inquiry based on Lyndel Robertson’s
September 24, 1993, letter.
Defendant Hulshof testified that after receiving the October 5, letter from Roberts,
Defendant Judge Lewis initiated a phone call to the Office of the Attorney General and
AAG Hulshof was asked by his secretary if he would take that call. Hulshof testified that
during the phone call, Judge Lewis asked how cases were assigned and AAG Hulshof
advised Judge Lewis that case assignments were made on a rotation between him and
another assistant attorney general. Doc. No. 226, Ex. H, pp. 12:24 to 13:8; p. 17:15-25.
During the conversations between Lewis and Hulshof before the Attorney General’s
Office was appointed special prosecutor, Lewis discussed the fact of this case with
Hulshof and expressed his desire for Hulshof to handle the case. Doc. No. 242, Ex. 1, at

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MW3183-84; Ex. 2, at MW6110-11. Specifically, Hulshof testified that Judge Lewis
indicated during the phone call that he would prefer AAG Hulshof to take the case
because Mr. Hulshof had spent time in Livingston County on previous criminal matters
and was familiar with local law enforcement officials. Doc. No. 226, Ex. H, p. 13:9-13.
Defendant Hulshof provides an affidavit he had no specific knowledge of the
case or any discussion with law enforcement officials about the crime or any
investigation before he received the assignment from Jack Morris, the unit chief for the
Criminal Division within the Office of the Missouri Attorney General.2 Doc. No. 226, Ex.
N, ¶¶ 1, 5-6. Hulshof testified that Judge Lewis also mentioned during the October 5
phone call that the Robertson shootings occurred on November 13, 1990, and there
was some discussion about soon-to-expire statutes of limitation which might apply, but
not with the detail set out in Judge Lewis’s October 7, 1993 letter. Doc. No. 226 (Ex. C);
Ex. H, pp. 15:22 to 16:10; 17:7-25. AAG Hulshof testified he recalled no other
discussions with Judge Lewis before Hulshof presented evidence before the grand jury.
Ex. H, pp. 24:23 to 25:1. Plaintiff notes, however, that Lewis via letter to Hulshof stated
he had various conversations with Hulshof regarding the case. Doc. No. 226, Ex. C-1;
Doc. No. 242 Ex. 2, at MW6118.
Judge Lewis issued an order on October 7, 1993, appointing the Office of the
Missouri Attorney General as special prosecutor in connection with the Robertson
2

Plaintiff disputes this fact, citing the testimony of Judge Lewis wherein he purportedly
testified that he discussed the facts of the case with defendant Hulshof. See Doc. No.
242, p. 5. However, when one reviews Judge Lewis’s actual testimony, he stated that
when he spoke to Hulshof, he discussed “[j]ust the fact of this case and probably
scheduling a hearing on - - on when he would appear before the grand jury.” Doc. No.
242, Ex. 1, p. 4. Judge Lewis further testified that, “I did not discuss, as far as I know,
any details of the case . . . .” Id. Discussing the fact that a case exists is quite different
than discussing the facts of a case; consequently, the Court does not credit plaintiff’s
attempt to controvert this fact.
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shootings. Doc. No. 226, Ex. C, p. 3. Hulshof’s affidavit provides that Kenneth Hulshof
was selected by Assistant Attorney General Jack Morris and assigned as the special
prosecutor by the Office of the Missouri Attorney General. Doc. No. 226, Ex. N, ¶ 1.
Judge Lewis sent a letter on October 7, 1993, to defendant Hulshof. In Judge
Lewis’ letter of October 7th, he enclosed a copy of his order appointing the Office of the
Attorney General appointed special prosecutor. Ex. C, p. 3. Judge Lewis also attached
to his October 7th letter to Mr. Hulshof a copy of Livingston County prosecuting attorney
Doug Roberts’ October 5th letter disqualifying himself. Id. at p. 4. Lewis’s letter also
enclosed Mr. Robertson’s September 24, 1993, letter to Lewis. Doc. No. 242, Ex. 3, at
MW2993. (These three letters, dated September 24, 1993, October 5, 1993, and
October 7, 1993, are collectively known as the “Lewis Letters.) Judge Lewis’ October 7,
1993 letter to Hulshof states, in full:
In accordance with our various telephone conversations, I am enclosing a
certified copy of Order Appointing Special Prosecuting Attorney whereby I
have appointed the Office of the Attorney General to prosecute the case
involving the murder of Catherine J. Robertson and the felonious assault
on Lyndel Robertson.
I convened a grand jury in Livingston County this morning. I enclose a
copy of a letter from the surviving victim dated September 24, 1993, which
prompted me to bring about a grand jury inquiry. Also enclosed is a copy
of Mr. Roberts’ letter of October 5, 1993, disqualifying himself in the
matter, albeit in a rather roundabout manner.
To say that Doug Roberts has been uncooperative would be a
monumental understatement. He boycotted the grand jury proceedings
this morning, which is simply unheard-of in my experience.3
As we had discussed, I recessed the grand jury until Friday, October 15,
1993, at 10:00 a.m. when you said you could be here.

3

Plaintiff notes that Doug Roberts testified that he did not boycott the grand jury, but
rather Judge Lewis did not invite him to attend. Doc. No. 242, Ex. 7, at MW7747-48.
9

One final point, the incident in question occurred on November 13, 1990.
Therefore, the statute of limitations will run in just over a month on the
felonious assault, burglary in the first degree and armed criminal action
charges. This was another reason that I felt we could wait no longer for
Mr. Roberts to act.
I wish to express my sincere thanks to your office for agreeing to take on
this case. Please let me know if there is any other information which you
may need at this time.
Doc. No. 226, Ex. C, pp. 1-2.
Before appearing at the grand jury, Hulshof reviewed the investigative file.
Hulshof understood that Roberts had no desire or intention to present the case to the
grand jury and that Lyndel Robertson was an “insistent victim” who was “very adamant
that his case go forward.” Hulshof did not speak with Doug Roberts about the case at
any time, and did not know what evidence law enforcement officials or Mr. Robertson
had provided to Doug Roberts. Prior to the grand jury proceeding, Hulshof knew that
Deister was a private investigator working for Mr. Robertson and that Deister had been
involved in the criminal investigation. This was the only case Hulshof prosecuted where
the victim had hired a private investigator, a circumstance Hulshof recognized was
“pretty unusual.” Hulshof testified that “there are a number of issues that could be raised
by having non-law enforcement involved in a criminal matter.” Doc. No. 242, Ex. 13, at
MW8160. Hulshof understood that one of the reasons Calvert had retained Deister was
to work on a fraud action that Claude Woodworth (Mark’s father) had filed against him.
Hulshof also recalled that there was a question about chain of custody because he
believed Deister may have supplied the revolver.
On October 15, 1993, AAG Hulshof first appeared before the grand jury in his
role as the appointed special prosecutor. Judge Lewis personally addressed the grand
jury on October 15 as well. Judge Lewis stated that “the convening of a grand jury at
10

this time is necessary to the effective administration of justice in Livingston County.”
Lewis said he was very disturbed by a newspaper article indicating that the grand jury
was meeting about the Robertson murder case. He said prosecuting attorney Doug
Roberts admitted telling the reporter that the grand jury was meeting but denied telling
the reporter that the Robertson case was being focused upon. Lewis stated that the
newspaper article “attempted to acquit Mr. Roberts of any disclosure of the purpose of
this investigation” and that “Mr. Roberts makes the same denial.” Lewis told grand jurors
that Roberts’ denials reminded him of the “line from Shakespeare when he said, ‘The
lady doth protest too much’, referring to innocence.” Doc. No. 242, Ex. 18.
At the grand jury proceeding, Hulshof presented evidence against only Mark
Woodworth.

Hulshof called Deister as a witness in the grand jury proceeding and

questioned him. A court reporter was present and taking notes of the testimony during
the entire presentation of evidence against Mark Woodworth; however, the only grand
jury transcripts which were produced were of the testimony of Mark’s mother and father,
Claude and Jackie.
On October 19, 1993, the grand jury returned an indictment of Mark Woodworth
to Judge Lewis charging him with murder in the first degree, armed criminal action with
regard to that murder, assault in the first degree, armed criminal action with regard to
that assault, and burglary in the first degree. After plaintiff was indicted, Brent Elliott
represented the juvenile officer in the proceeding to certify plaintiff to be tried as an
adult.

Judge Lewis presided over the juvenile certification proceeding and certified

plaintiff to stand trial as an adult.
Mark Woodworth’s criminal attorney, Mr. McFadin, filed his appearance on behalf
of Mark Woodworth on November 8, 1993. After Mr. McFadin had entered his
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appearance, on November 16, 1993, Judge Lewis sent McFadin and Hulshof a jointlyaddressed letter dated November 12, which indicated that Lewis was enclosing a letter
he had received from Jim Johnson two days earlier. On or about November 16, 1993,
Judge Lewis stated he filed in the Livingston County grand jury record three docket
items: 1) an order Judge Lewis issued that a letter addressed to the Court from Jim
Johnson, and all references thereto, be sealed and kept separate and apart from the
official court file; 2) Mr. Johnson’s letter, and 3) Judge Lewis letter jointly-addressed to
Mr. Hulshof and Mr. McFadin. Ex. G. (The Order and the letters from Judge Lewis and
Mr. Johnson are collectively known as the “Johnson Letters.”) Plaintiff, however,
disputes that the docket sheet and the order sealing the Johnson letter were filed
because neither document is file stamped.
In 1993 Doug Roberts filed an application to revoke the probation of Jim Johnson
for 3 counts of passing a bad check, a class D felony. The case is styled State v. James
Johnson, Case No. CR792-12FX, Circuit Court of Livingston County. Doc. No. 242, Ex.
25, at MW2180. Judge Lewis presided over the probation revocation proceeding, and
Richard McFadin, who would later represent Mark Woodworth, represented Johnson.
On August 30, 1993, Judge Lewis revoked Johnson’s probation and sentenced Johnson
to five years’ imprisonment on the three felony counts with each sentence to run
concurrently with each other and concurrently with sentence imposed by the Circuit
Court of Daviess County in Case No. CR391-20F but consecutively with sentences
imposed by the Associate Division of the Circuit Court of Daviess County in Case Nos.
CR493-223M and CR492-818F. Doc. No. 242, Ex. 25, at MW2150-51. After Lewis
revoked his probation, Johnson wrote to him. In the letter dated November 12, 1993,
Johnson stated that he wanted to let Lewis “know some things that might help in the
12

Mark Woodworth cases.” Doc. No. 242, Ex. 26. Johnson claimed he “know[s] more
about the Woodworth and Robertson farm’s [sic] anyone” and that Claude and Mark
Woodworth helped him steal chemicals. Doc. No. 242, Ex. 26. He stated that two
prosecutors wanted his cooperation to prosecute Claude for chemical thefts that
occurred in June and July 1993. Id. Johnson expressed his belief that Mark Woodworth
had “done the shootings” but that “Claude [Woodworth] helped him and also talked him
into it.” Johnson further stated that Katherine Robertson’s death was connected to the
farm thefts. Johnson stated that he had “never snitched on anyone before” and did not
know “if this is the thing to do, but I want to change my life for the best or just end it.” Id.
Johnson also wrote a letter to the Livingston County Grand Jury in February
1994. In that letter Johnson represented that he could “shed some light on the
Robertson murder.” Doc. No. 242, Ex. 27. Johnson went on to state in that letter: (1) “I
have dealt with Claude Woodworth and Lyndel Robertson since 1980 and help them
steal beans—milo—chemicals as recently as July 1983”; (2) “I have had conversations
with Claude Woodworth about the murder of Mrs. Robertson that will shed some light on
the facts concerning the murder”; (3) “Claude Woodworth set up place’s [sic] for me and
four other people from this county to rip off so he could buy the stolen good’s [sic] and
Claude Woodworth did buy it along with 3 other people of this county. Recent as 1983
(July)”; (4) “Claude Woodworth tried to purchase a gun from me just after the Robertson
murder. Claude stated to me it (gun) had to be unmarked so no one could trace it back
to it’s [sic] owner”; and (5) “I feel without the grand jury non [sic] of these cases would
have been solved and at this time I will talk with you. I will make only one promise to
you and that would be it. #1 I will tell you the truth and nothing but the truth if you will
give me this chance.” Doc. No. 242, Ex. 27.
13

The foreman of the grand jury provided

Judge Lewis with Johnson’s letter. On March 7, 1994, Judge Lewis sent Johnson’s
letter to Hulshof. The cover letter transmitting the letter does not indicate a copy of
Johnson’s letter was mailed to plaintiff’s defense counsel.
In a handwritten note dated December 21, 1993, following a pretrial conversation
with plaintiff’s defense attorney McFadin, Hulshof wrote:
“trying to get off the hot seat”
[point finger at father?]
Doc. No. 242, Ex. 23, at MW5084; Ex. 24, at 59-62.
On September 30, 1994, Attorney James Wyrsch entered his appearance on
behalf of Woodworth. As of January 1995, Mr. Woodworth’s attorneys, James Wyrsch
and Richard McFadin, conceded that “[a]lthough [d]efendant has had discovery of the
State’s file in large degree, [d]efendant is without sufficient knowledge of the facts
concerning the above alleged acts to enable him to prepare his defense with the
exception of the firearm.” Ex. K, p. 2, No. 4. Notably, Mr. McFadin moved his office after
Wyrsch had entered his appearance on Mr. Woodworth’s behalf and McFadin was
thereafter “unable to locate some of the discovery which has previously been
produced.” Ex. L (2/7/95 ltr from Wyrsch’s paralegal to G. Calvert). Before Mr.
Woodworth’s first trial, his attorneys petitioned the trial court for a writ commanding that
James Johnson (of the “Johnson Letters”) be present for trial. Judge Lewis did not
preside over Mark Woodworth’s criminal trials.
Plaintiff argues that Mr. Robertson’s September 24, 1993 letter, Doug Roberts’
October 5, 1993 letter, and Judge Lewis’s October 7, 1993 letter (the “Lewis Letters”)
were not produced to Mark Woodworth’s defense attorneys in the criminal case, noting
that Hulshof had no direct recollection of producing those three letters, and that the

14

letters did not bear numbers indicating that they had been produced to the defense
during discovery. Hulshof acknowledged that the letters would be Brady material, and
that if they had not been turned over it would have been a “big deal.”
At plaintiff’s first criminal trial Robertson stated he did not remember telling
anyone he had seen who had shot his wife, further testifying that he had not seen a
thing at the time of the shootings. Doc. No. 242, Ex. 28, at MW0489, p. 447:1-3. Shortly
after the shooting, however, in 1990, Robertson stated he was almost 100 percent sure
Brandon Thomure shot him and his wife. Doc. No. 242, Ex. 29, at MW3005. Mr.
Robertson later told Deputy Sheriff Calvert that he thought Claude Woodworth might
have done it because he is “the only one that had a reason to,” or that Claude
Woodworth ordered Mark Woodworth to shoot him. Doc. No. 242, Ex. 14, at MW5789,
MW5792. In his 1995 deposition, Lyndel Robertson claimed that he never “point[ed] my
finger at anybody” when asked by Officers Lightner and Smith at Research Hospital, but
also noted that the question was always who could have possibly done it. Doc. No.
242, Ex. 30, at MW5682. Plaintiff argues that Hulshof, who was present at the 1995
deposition, did not correct Robertson’s testimony which plaintiff asserts contradicts
Robertson’s prior insistence that Doug Roberts prosecute Brandon Thomure for the
crimes as Roberts stated in his October 5, 1993, letter to Judge Lewis. Ex. 30, at
MW5640-41.
Robertson did not attempt to have Claude Woodworth charged with the shooting
because there was no evidence against him; however, Robertson expected Mark
Woodworth to implicate his father following his conviction. Plaintiff also presented
testimony at his post-conviction hearing that during jury deliberations at the first trial,
Ronald Motley (a relative of plaintiff Woodworth) approached Defendant Hulshof outside
15

the courtroom and asked him “if he really believed that Mark Woodworth had committed
the crime.” Doc. No. 242, Ex. 7, at MW7668-69. According to Motley, Hulshof
responded “oh, no,” and said that “someone else had done it and he thought they [the
guilty party] would step forward if Mark was prosecuted.” Doc. No. 242, Ex. 7, at
MW7669. Another person who overheard the exchange (and who was also a relative of
Woodworth) recalled that Hulshof said “he knew Mark didn’t do it, but he thought if we
got this far, that the guilty party would confess.” Doc. No. 242, Ex. 7, at MW7672-73.4
Plaintiff was convicted by a jury in 1995 of murder in the second degree, burglary
in the first degree, assault in the first degree, and armed criminal action. The jury
recommended the minimum sentences. The Court ordered them to run consecutively
for a total of 31 years. Plaintiff’s conviction was reversed in 1997 by the Missouri Court
of Appeals for the reason that Mark had been unfairly deprived by the trial court of his
right to present evidence of an alternative perpetrator (Brandon Thomure).
Before the second trial, the prosecutor who tried the first case with Hulshof
acknowledged the ballistics evidence is “pretty much our only evidence” and the
“ballistics testimony is critical.” Doc. No. 242, Ex. 33, at MW2651. He requested
permission to send the state’s ballistics expert to meet with another prosecution expert
in England so they can “try[] to strengthen their test results/testimony.” Id. The expense
was “necessary,” because “[t]his is a high profile long-shot-to-win case which is being
followed by Court TV.” Id. Plaintiff’s second trial resulted in jury verdicts of guilty as to

4

The Court accepts as a “fact” that plaintiff presented such testimony at his postconviction hearing. The Court notes, however, that following the hearing, the Special
Master does not appear to have relied upon such testimony in his findings. Further, this
Court finds particularly dubious the proposition that the special prosecutor would tell a
family member of the person on trial, during jury deliberations, that the prosecutor didn’t
actually believe the defendant was guilty.
16

the same charges, and the jury recommended the maximum sentences. The trial court
ordered the sentences to be served consecutively, resulting in sentences which were
the equivalent of 145 years. These convictions were affirmed by the Missouri Court of
Appeals in 2001.
Plaintiff filed a state habeas corpus petition which resulted in the Missouri
Supreme Court appointing a Special Master to conduct an evidentiary hearing. State ex
rel. Woodworth v. Denny, 396 S.W.3d 330, 336 (Mo. 2013). In April 2012, the Special
Master filed findings and a recommendation to the Missouri Supreme Court that Habeas
Corpus relief be granted, that the conviction and sentence be vacated and that the case
be reviewed by an independent prosecutor as to whether Mark should be re-tried. Doc.
No. 242, Ex. 34 (Special Master’s Report). The Special Master’s findings in support of
his recommendations including the following (among other things):
a.

b.

c.
d.
e.
f.

g.

Lewis “was dissatisfied with the work of the duly elected Livingston County
Prosecuting Attorney Douglas Roberts (with jurisdiction over Woodworth’s
criminal case) in regard to Prosecutor’s Roberts’ prosecution of a
perpetrator for the Robertson crimes.” Ex. 34, at 7.
Lewis “sought and obtained the appointment of Special Prosecutor Kenny
Hulshof to conduct the grand jury and prosecute Woodworth (in lieu of the
same being prosecuted by Douglas Roberts).” Ex. 34, at 7.
Lewis “selected the foreperson of the grand jury, John Cook.” Ex. 34, at 7.
Elliott “represented Judge Lewis, on a personal basis, in one or more civil
matters.” Ex. 34, at 8.
Elliott “represented Juvenile Officer Gam [sic] in the juvenile proceedings
to certify Woodworth as an adult.” Ex. 34, at 11.
In the juvenile certification hearing, “Judge Lewis, who presided over the
hearing, was simultaneously being represented by the lawyer [Elliott] that
represented the Juvenile Office.” Ex. 34, at 11-12.
In his letter dated October 7, 1993, Lewis
i.
“acknowledges that he has previously spoken to Hulshof about the
case on more than one occasion.” Ex. 34, at 15.
ii.
“acknowledges that he was ‘prompted to call the grand jury’ based
on receiving the first letter, the letter from victim Lyndel Robertson.”
Ex. 34, at 15.
iii.
“states that Prosecutor Roberts had ‘boycotted’ the grand jury.” Ex.
34, at 15.
17

iv.

h.
i.

k.

l.

m.

n.

o.

“appears to have substantively analyzed the statute of limitations
issues as well as the possible charges to be filed or which may be
filed in the case.” Ex. 34, at 15.
v.
“states that: ‘I felt that we (emphasis added) could wait no longer
for Mr. Roberts to act,’” apparently “referring to the Office of the
Attorney General and himself. Ex. 34, at 16.
Lewis did not provide the Lewis Letters to Woodworth’s defense counsel.
Ex. 34, at 17.
“The Lewis Letters make it clear that the surviving victim had complained
to the judge; that the prosecutor was possessed of evidence that the
surviving victim had previously requested that some other person be
charged with the offense with which Woodworth was ultimately charged;
that Judge Lewis was in a rift with Prosecutor Roberts; and that Judge
Lewis was knowledgeable about the facts of the case and was sharing
that knowledge.” Ex. 34, at 17.
“A conflict [of interest] existed between McFadin’s representation of
Woodworth and McFadin’s simultaneous representation of Johnson.” Ex.
34, at 22.
“[S]ome or all of the Johnson letters ultimately received by Hulshof (either
directly or from someone else) were only first discovered by the Defense
during the course of this habeas corpus action in March, 2011.” Ex. 34, at
23. 5
“McFadin’s simultaneous representation of Jim Johnson and Woodworth
conflicted with McFadin’s duties of loyalty and full disclosure to
Woodworth. It must be presumed that Woodworth’s representation
suffered as a result of the conflict.” Ex. 34, at 23.
“[T]here was nothing fundamentally fair about the investigation of the
Robertson crimes, or, in turn, Woodworth’s prosecutions and convictions
for those crimes…. Woodworth’s verdict is not worthy of confidence.” Ex.
34, at 30.
“Woodworth’s constitutionally guaranteed judicial process was ignored.
Caught up in his quarrel with Prosecutor Roberts, Judge Lewis lost sight
of his judicial sense of fairness. In effect, he became a prosecutor. He
analyzed the crimes with which to charge Woodworth and the Statutes of
Limitation for those crimes; he called a grand jury based upon an ex parte
letter that he got from one of the victims…; he gratuitously criticized
Roberts before the grand jury, setting an improper tone for a fair grand
jury process; he appointed a grand jury forem[a]n with whom he had, at a
minimum, a prior business relationship; he presided over the juvenile
certification hearing wherein the Juvenile Officer was represented by an
attorney who, at the same time, personally represented him; and, then,
when disqualified, he designated the judge who would ultimately preside[]
over the ensuing trials. It is inconceivable that each of these actions was
simply an isolated, unrelated event; they hold the trappings of a case-

5

Note, however, that the letter from Judge Lewis enclosing the Johnson letter from
1993 specifically states it is being mailed to defense counsel McFadin.
18

p.

specific, professionally unacceptable, pattern and practice.” Ex. 34, at 3233.
Lewis demeaned Prosecutor Roberts by “accus[ing] Roberts of
‘boycotting’ the grand jury in his letter to the Attorney General (when he
knew that Roberts had already disqualified himself from the case) and
“vilifying Roberts in front of the grand jury.” Ex. 34, at 32. “The accusation
and the vilification added to the momentum of the prosecution…no one
with an inkling of due process was in control at that time.” Ex. 34, at 32.
“Judge Lewis’ message to the Office of Attorney General was clear: this
Court was ‘oh so offended by the actions of the duly elected prosecutor
and that it was now time for a ‘real’ prosecutor to step up to the plate…join
the team.” Ex. 34, at 32. “At the same time, it sent a like message to the
Grand Jury that ‘things may have been out of control but I’ve taken
charge’ now and we’ve got some professionals in here and so let’s get out
there and get ’em, team…and that’s what they did: they indicted Mr.
Woodworth.” Ex. 34, at 32.6

In January 2013, the Missouri Supreme Court accepted the findings of the
Special Master and vacated Mark’s conviction. State ex rel. Woodworth v. Denny, 396
S.W.3d 330 (Mo. 2013). After the Attorney General announced its decision to retry the
case for a third time, the case was assigned to the Judge Owens Lee Hull, Jr. of the
Circuit Court of Platte County. Judge Hull ordered the Office of the Missouri Attorney
General removed from the case, concluding: “Given the history of this case, at this point
in time there is absolutely no reason the office of the Attorney General should prosecute
this case. Therefore it should be removed from that obligation. Justice, fairness, and the
requirements of due process of law require an independent review of this case by a

6

The Court notes that defendants controvert these facts in their entirety, as they are
either factual contentions recited in a legal opinion or are conclusions of law, rather than
materials of record as required by Rule 56. However, the Court finds that the findings
and statements of the special master are relevant at least insofar as considering the
procedural posture of Mr. Woodworth’s case and how he came to be released from
prison. As noted by defendants, though, the Court cannot conclude as a matter of fact
or law based on the Special Master’s report, that defendant Lewis “vilified” Roberts
before the grand jury and thereby added “momentum to the prosecution”.

19

prosecutor unburdened by past participation in this case.” Doc. No. 242, Ex. 35, at
MW3056.
After a hearing, Platte County Circuit Judge Hull excluded all ballistics evidence
because the chain of custody documents did not document that Deister had been in
possession of the bullet. Doc. No. 242, Ex. 36, at MW3059-67. The court found that the
record “does not establish a complete, transparent, credible provenance of the
‘Robertson bullet.’” Ex. 36, at MW3066. On February 25, 2014, Judge Hull appointed
Don Norris as special prosecutor. Doc. No. 242, Ex. 37. After reviewing the record,
Special Prosecutor Norris concluded that there was no credible evidence against Mark
Woodworth and that Mark Woodworth had been targeted for prosecution.

Norris

dismissed all charges against Mark Woodworth, finding no probable cause existed for
his prosecution.
III.

Standard
Summary judgment is appropriate if the movant demonstrates that there is no

genuine issue of material fact and that the movant is entitled to judgment as a matter of
law. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). The facts and inferences are
viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586–90 (1986). The moving party must carry the
burden of establishing both the absence of a genuine issue of material fact and that
such party is entitled to judgment as a matter of law. Matsushita, 475 U.S. at 586–90.
A nonmoving party must establish more than “the mere existence of a scintilla of
evidence” in support of its position. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986).

20

The nonmovant must do more than simply show that there is
some metaphysical doubt as to the material facts, and must
come forward with specific facts showing that there is a
genuine issue for trial. Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial.
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (citations
and quotations omitted).
For qualified immunity cases, however, “once the predicate facts have been
established, … there is no such thing as a ‘genuine issue of fact’ … The conduct was
either ‘reasonable under settled law in the circumstances,’ or it was not … .” Pace v.
City of Des Moines, 201 F.3d 1050, 1056 (8th Cir. 2000) (quoting Hunter v. Bryant, 502
U.S. 224, 228 (1991)) (citation and alterations omitted). The “predicate facts” include
only the relevant circumstances and the acts of the parties: conclusions or arguments
about the reasonableness of those circumstances or those actions are not genuine
disputes of material fact that would preclude summary judgment. Id.
IV.

Discussion
A.

Count IV (Conspiracy pursuant to 42 U.S.C. § 1983)
1.

Defendant Hulshof

In the operative Complaint, plaintiff alleges in Count IV that Mr. Hulshof
conspired and “agreed to fabricate evidence against [him] so as to conceal or suppress
evidence against the actual perpetrator(s).” Doc. No. 35, ¶ 167. Defendant argues that
the alleged factual basis of the conspiracy allegation is that in a series of telephone calls
occurring before Hulshof was appointed, Lewis recruited Hulshof and Hulshof agreed to
join the conspiracy to present a false version of the facts (including that Lyndel had not

21

previously identified or demanded the prosecution of Brandon, and suppressing
evidence of Brandon as the shooter). Doc. No. 35, ¶ 69.
Defendant Hulshof notes that prosecutorial immunity shields him from suit for
such activities as reviewing investigative materials, reaching charging conclusions, as
well as preparing and presenting witnesses before grand jury and trial. Reasonover v.
St. Louis Cty., Mo., 447 F.3d 569, 580 (8th Cir. 2006) (noting a prosecutor is absolutely
immune from a civil conspiracy charge when the participating in the conspiracy consists
of otherwise immune acts). Thus, defendant Hulshof notes, the allegations regarding
the grand jury proceedings and the prosecution of this case are barred by prosecutorial
immunity.
Furthermore, with respect to the activities taking place between Judge Lewis’s
first phone call to defendant Hulshof and Hulshof’s appointment by the attorney
general’s office, defendant argues that plaintiff cannot establish a meeting of the minds
to deprive Woodworth of his constitutional rights through the available evidence.
Rogers v. Bruntrager, 841 F.2d 853, 856 (8th Cir. 1988); Askew v. Millerd, 191 F.3d 953,
957 (8th Cir. 1999). In addition, the knowledge that others may have acted unlawfully
does not mean that defendant Hulshof joined an actionable conspiracy.

See

Bonenberger v. St. Louis Metro. Police Dep’t., 810 F.3d 1103, 1109 (8th Cir. 2016).
Hulshof’s limited contact in the few days between October 5 and October 7, 1993 when
he was appointed as special prosecutor, does not establish evidence of a conspiracy,
as participation in meetings or telephone calls, without more, does not establish a
reasonable inference of a conspiracy. See Larson by Larson v. Miller, 76 F.3d 1446,
1455-56 (8th Cir. 1996). Further, even if Judge Lewis had hand-picked Hulshof to be the
prosecutor of this matter (even though the evidence shows that Hulshof was selected by
22

AAG Morris), that preference does not show that Hulshof entered into a meeting of the
minds to deprive Woodworth of his constitutional rights.
In response, plaintiff makes a laundry list of assertions against Hulshof that
supposedly prevent prosecutorial immunity from attaching, including: (1) allegedly
procuring false statements from Lyndel Robertson (citing to Fields v. Wharrie, 740 F.3d
1107, 1111 (7th Cir. 2014) (where the prosecutor had procured a false statement from a
prospective witness before the victim’s arrest), and McGhee v. Pottawattamie County,
547 F.3d 922, 932-33 (8th Cir. 2008) (holding that “immunity does not extend to the
actions of a County Attorney who violates a person’s substantive due process rights by
obtaining, manufacturing, coercing and fabricating evidence before filing formal
charges, because this is not ‘a distinctly prosecutorial function’”)); (2) entering into a
conspiracy to fabricate evidence and suppress other evidence prior to his appointment
on October 7, 1993 (citing Zahrey v. Coffey, 221 F.3d 342, 346-47 (2d Cir. 2000), for
the proposition that the nature of a prosecutor’s immunity depends upon the capacity in
which the prosecutor is acting at the time of the alleged misconduct, and asserting that
“The inference that Hulshof was recruited for this purpose and agreed to the improper
suppression or fabrication is reasonable under all the circumstances,” see Doc. No.
242); (3) Hulshof intimidated or coerced witnesses into changing their testimony, which
is not advocacy but “rather a misuse of investigative techniques,” Zahrey, 221 F.3d at
346-47; and (4) failure to disclose the Lewis letters, which the state courts found
included Brady material, demonstrates that Hulshof violated the codes of conduct for
failure to report to the Missouri Bar alleged ex parte contacts between Judge Lewis and
the victim, as well as supporting the theory that Lewis and Hulshof had agreed to
suppress the information contained in those letters.
23

The Court finds that plaintiff’s theory of the case lacks factual support in the
evidentiary record.

With respect to activity allegedly taken in the two-day period

between the first phone call from Judge Lewis and his appointment to the case, there is
no evidence on the record that defendant Hulshof did anything that could be considered
entering into a conspiracy to fabricate or suppress evidence. Even if Judge Lewis had
given him a factual overview of the case against Woodworth (a point which is not
supported by the record), that does not mean that Hulshof agreed to suppress evidence
of a different suspect. With respect to the remaining facts regarding failure to present
evidence as to another suspect to the grand jury, failure to apprise the trial court of
deficiencies in the ballistic evidence, or failure to correct Mr. Robertson’s testimony as
to alleged contradictions, those examples are more properly categorized as acts taken
in good faith pursuit of conviction. There is no evidence that Hulshof intimidated or
coerced others to testify falsely at trial.

Finally, to the extent that Hulshof did not

disclose the Lewis letters, that hardly amounts to the nefarious claim made out by
plaintiff; alternate explanations could be attorney oversight or mistake, or that plaintiff’s
trial counsel, McFadin, received the letters but later could not find them after his office
move.
In short, the lack of factual support demonstrating that Hulshof entered into a
conspiracy, coupled with prosecutorial immunity, leaves the Court no option other than
to grant defendant Hulshof’s motion to summary judgment as to Count IV of the
Amended Complaint.
2.

Defendant Lewis

Defendant Lewis also asserts that plaintiff has failed to provide facts supporting a
Section 1983 conspiracy claim against him. In the operative complaint (Doc. No. 35),
24

plaintiff alleges that former defendants Robertson, Calvert, Diester, Johnson and
Williams enlisted Judge Lewis to frame Woodworth, conceal the alleged conspiracy and
ensure Woodworth was never freed from wrongful incarceration. Doc. No. 35, ¶ 167.
Plaintiff then states that “circumstances indicate” that Lewis recruited Mr. Hulshof to
“[present] a false version of the facts; namely that [Robertson] had not previously
identified or demanded the prosecution of [Thomure] and suppressing evidence that
[Robertson] had, in fact, previously identified [Thomure] as the shooter.” Doc. No. 35, ¶
169.
To demonstrate a conspiracy claim that survives summary judgment, plaintiff
must provide factual support indicating that (1) the defendant conspired with others to
deprive plaintiff of his constitutional rights; (2) at least one of the alleged co-conspirators
engaged in an overt act furthering the conspiracy; and (3) that the overt act injured
plaintiff. White v. McKinley, 519 F.3d 806, 814 (8th Cir. 2008); Reasonover v. St. Louis
Cty., Mo., 447 F.3d 569, 582 (8th Cir. 2006). Defendant Lewis indicates that there are
no material facts demonstrating that Lewis joined the alleged conspiracy with
Robertson, Calvert, Diester, Johnson and Williams. Further defendant Lewis argues
that the series of telephone conversations he held with Hulshof does not demonstrate a
conspiracy. This Court notes that it is already found that plaintiff has not set forth
evidence that Hulshof joined a conspiracy with Lewis; thus, the converse is also true:
there is no evidence that Lewis conspired with Hulshof about this case. Furthermore,
with respect to Robertson, Calvert, Diester, Johnson, and Williams, plaintiff’s evidence
of conspiracy is thin:

plaintiff asserts, without evidentiary support other than

“circumstances indicate”, that Elliott (who had served as Lewis’s attorney on an
unrelated matter) kept Lewis apprised of the investigation being conducted by Diester
25

and Calvert.

This is simply not sufficient to demonstrate a meeting of the minds

between Lewis and anyone else.
Additionally, as noted by defendant, Judge Lewis has judicial immunity. Mireles
v. Waco, 502 U.S. 9, 11 (1991); Martin v. Hendren, 127 F.3d 720, 721-722 (8th Cir.
1997). Absolute judicial immunity applies to protect judges from individual capacity suits
for money damages when the acts taken were within their judicial capacity. Penn v.
United States, 335 F.3d 786, 789 (8th Cir. 2003). Judicial acts are those acts within a
judge’s jurisdiction and normally performed by a judge where the complainant is dealing
with the judge in his judicial capacity. Schottel v. Young, 687 F.3d 370, 373 (8th Cir.
2012). A judge is immune from suit in all but two narrow sets of circumstances. Id.
citing Mireles v. Waco, 502 U.S. 9, 11–12 (1991). “First, a judge is not immune from
liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity.
Second, a judge is not immune for actions, though judicial in nature, taken in the
complete absence of all jurisdiction.” Id. Judicial immunity is not overcome, however, by
allegations of bad faith or malice. Mireles, 502 U.S. at 11.
Here, defendant Lewis notes that the facts are that on October 7, 1993, Lewis
convened and presided over a grand jury. On the same date, Lewis issued an order
appointing the Office of the Attorney General of Missouri as special prosecuting
attorneys in connection with the Robertson shootings. This order followed an October
5th letter from the Livingston County prosecutor, Doug Roberts, disqualifying himself and
asking Lewis to appoint the Office of the Attorney General to represent the State. Lewis
spoke to the grand jury on one occasion, October 15, 1993, and later presided over
proceedings certifying plaintiff as an adult for trial. Lewis, upon receipt of one of the

26

Johnson letters, sent correspondence to counsel for both the state and plaintiff
Woodworth, and ordered the correspondence placed under seal.
Defendant Lewis states that all the actions outlined in the preceding paragraph
are judicial actions, which were not taken in the complete absence of all jurisdiction. All
actions are of a nature normally performed by judges, such as presiding over grand jury
and other court proceedings, issuing orders, and seeking a special prosecutor. Mireles,
502 U.S. at 13.
In response, plaintiff argues that the doctrine of judicial immunity does not apply
to Judge Lewis because Judge Lewis engaged in prosecutorial acts which are not
entitled to immunity, comparing this case to Lopez v. Vanderwater, 620 F.2d 1229, 1235
(7th Cir. 1980), in which the Court held that the judge was not entitled to absolute
immunity because he made the decision to prosecute.7 Here, plaintiff argues that when
the county prosecutor declined to prosecute, Judge Lewis initiated a grand jury inquiry.
Plaintiff further argues that Lewis “orchestrated the recusal of the sitting prosecutor and
assigned the case to a special prosecutor who was willing to join the conspiracy to
frame Woodworth.” Doc. No. 242. However, the actual facts are not so dramatic.
Instead, they show that Robertson sent a letter to Judge Lewis complaining about the
prosecutor. Judge Lewis showed the letter to the prosecutor, who then recused himself.
Judge Lewis then inquired about appointing the AG’s office to prosecute the case, and
initiated grand jury proceedings. None of these facts demonstrate that Judge Lewis

7

As noted by defendants in their reply suggestions, Lopez is factually distinct from the
case at hand. In Lopez, the judge personally arrested the defendant, charged him with
petty theft, and then convicted and sentenced him at approximately midnight at a police
station, without a prosecutor, defense attorney, or court reporter present. 620 F.2d at
1231. Needless to say, the process afforded to plaintiff Woodworth was considerably
different.
27

entered into a conspiracy to violate plaintiff’s rights, and none demonstrate he acted as
a prosecutor in this case so that he is no longer able to claim judicial immunity.
The Court further notes that, in response, plaintiff comes up with what he terms
“reasonable inferences” from the evidence that show defendant Lewis joined a
conspiracy.

However, as noted by defendant Lewis, rather than being “reasonable

inferences,” these allegations a merely speculations based on Judge Lewis’s October 7,
1993 letter. Plaintiff asserts that Judge Lewis presumably wanted Woodworth indicted
in 1993; however, the letters sent by Lewis to Hulshof do not even name Woodworth as
the alleged suspect. Plaintiff also argues that the October 7, 1993 letter supports the
inference that “Hulshof had agreed to a prosecutorial approach which suppressed the
evidence that Mr. Robertson had previously ‘fingered’ a different suspect.” Doc. No.
242, p. 37. However, as noted by defendant Lewis, nothing in the letter supports such
an inference.

Plaintiff also notes that the letter references “various conversations”

between Hulshof and Lewis before the October 7, 1993, letter. However, the mere fact
that various conversations (i.e., more than one) were held does not support the
inference that they conversed about the subjects plaintiff “infers,” such as a conflict
between prosecutor Roberts and victim Robertson, or the inference the Lewis told
Hulshof he wanted Woodworth to be indicted. Again, these are not inferences based on
the record, but speculation.

Finally, to the extent plaintiff argues that defendants

Hulshof and Lewis later somehow agreed to hide from Woodworth a conflict of interest
with his trial counsel McFadin, who also represented witness Johnson (who sent letters
to Judge Lewis and the grand jury), that claim is belied by the fact that (1) Judge Lewis
sent a letter to both Hulshof and McFadin enclosing the first Johnson letter, and (2)
Johnson was requested as a witness at trial by the defense.
28

Therefore, for the foregoing reasons, plaintiff’s Section 1983 conspiracy claim in
Count IV against defendant Lewis fails, and summary judgment is granted in defendant
Lewis’s favor.
B.

Count I (14th Amendment Procedural Due Process) as to Hulshof and
Lewis

As an initial matter, to the extent that plaintiff is seeking relief pursuant to the 5th
Amendment of the United States Constitution, such relief cannot be granted because
defendants Lewis and Hulshof are not federal actors. Barnes v. City of Omaha, 574
F.3d 1003, 1005 n.2 (8th Cir. 2009).

Therefore, any 5th Amendment claims are

dismissed.
1.

Hulshof

As discussed previously, plaintiff Woodworth contends that both before and after
Hulshof was appointed special prosecutor, he engaged in prosecutorial misconduct.
Between October 5, 1993 and October 7, 1993, plaintiff alleges that defendant Hulshof
engaged in a series of telephone conversations with Judge Lewis about the case.
However, there is no evidence that the conversations were anything other than Judge
Lewis seeking information about appointing a special prosecutor and discussing the fact
that the Robertson homicide investigation existed. Thus, as discussed above in regards
to plaintiff’s conspiracy claim, there is insufficient evidence to proceed to trial regarding
any of Hulshof’s activities prior to being appointed special prosecutor in this case.
Furthermore, as for the pre-appointment contacts occurring between October 5th
and October 7th, Mr. Hulshof is entitled to qualified immunity. The record supports
Hulshof’s statements that the contacts between he and Lewis from October 5 through
October 7 addressed primarily administrative concerns, including the date of the

29

Robertson shootings relative to the running of potentially applicable statutes of
limitation, as well as coordinating Hulshof’s appearance before the grand jury. Doc. No.
226, Ex. C. Qualified immunity shields government officials who are engaged in
discretionary activities from liability for money damages made against them in their
individual capacities unless their conduct violated clearly established statutory or
constitutional rights. Barton v. Taber, 820 F.3d 958, 963 (8th Cir. 2016) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity is not lost by reasonable
errors of judgment. Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam) (noting that
qualified immunity protects “all but the plainly incompetent or those who knowingly
violate the law”). The questions to ask in a qualified immunity case are (1) Whether a
constitutional right was violated, and; (2) Whether the right was clearly established
when the violation occurred. Barton, 820 F.3d at 963.
Hulshof argues that his contact with Judge Lewis over a two-day period
regarding largely administrative matters before being appointed the special prosecutor
of the Robertson shooting did not constitute a 14th Amendment violation in 1993, as
applicable precedent did not establish that discussions a judge and potential prosecutor
regarding administrative matters violated the 14th Amendment’s procedural due
process requirements.

In response to this argument, plaintiff focuses on his

unsupported assertions that during this brief period of time, Hulshof and Lewis entered
into a conspiracy to suppress relevant evidence. But, there is no admissible evidence
supporting plaintiff’s argument that either party entered into a meeting of the minds to
suppress evidence, particularly during the October 5-7 time period.

The Court,

therefore, finds that qualified immunity is another basis upon which to grant summary
judgment as to Hulshof’s acts between October 5-7, 1993.
30

With respect to plaintiff’s allegations that Hulshof concealed and suppressed
disclosure of the “Lewis letters,” a violation of the 14th Amendment’s procedural due
process clause requires Mr. Woodworth establish that: 1) Mr. Hulshof failed to disclose
evidence favorable to him, 2) the evidence was material and 3) Hulshof acted in bad
faith. Brown v. Chiappetta, 806 F. Supp. 2d 1108, 1117 (D. Minn. 2011). Woodworth
must demonstrate that Hulshof “intended to deprive [Woodworth] of a fair trial.” White v.
McKinley, 519 F.3d 806, 813 (8th Cir. 2008). However, as discussed by defendant
Hulshof, there is no admissible evidence in the record that shows that Hulshof intended
to deprive Woodworth of a fair trial. No credible evidence shows that Hulshof believed
someone other than Woodworth perpetrated the crime.8
Finally, for the reasons stated above in relation to the conspiracy claim, Hulshof’s
actions after he was appointed special prosecutor are subject to absolute prosecutorial
immunity. Williams v. Hartje, 827 F.2d 1203, 1208 (8th Cir. 1987); Anderson v. Larson,
327 F.3d 762, 768 (8th Cir. 2003). Absolute immunity covers all actions taken to initiate
a prosecution, even if those actions were patently improper. Williams, 827 F.2d at 1208.
Furthermore, the Brady allegations are subsumed within the protections of absolute
prosecutorial immunity because that immunity extends to acts taken in pursuit of
conviction. See Imbler v. Pachtman, 424 U.S. 409, 430 (1976); Reasonover v. St. Louis
8

Moreover, certain evidence suggests that McFadin (who is now deceased) had
received or had access to the Lewis letters and other discovery, and perhaps such
discovery was lost in his subsequent office move. See Doc. No. 226, Ex. K-2 (Defense
counsel McFadin acknowledging access to State’s file); Ex. L-1 (McFadin unable to
locate unidentified discovery previously produced); Ex. K-2 (Woodworth’s counsel’s
admission of discovery provided). Additionally, in this matter Woodworth has refused to
disclose his defense attorney McFadin’s file, asserting attorney-client privilege.
Defendants argue that privilege was waived by implication when plaintiff placed the
alleged suppression of exculpatory materials at issue in this lawsuit. Shukh v. Seagate
Technology, LLC, 872 F.Supp.2d 851, 857 (D.Minn. 2012).

31

Cnty., Mo., 447 F.3d 569, 580 (8th Cir. 2006). Prosecutorial immunity, moreover, even
covers plaintiff’s unsupported claims that Hulshof knew of McFadin’s conflicts with
Woodworth and Johnson and somehow Hulshof was secretly working in concert with
McFadin to secure adverse testimony from Johnson (see Amended Complaint, Doc. No.
35, ¶¶ 58-59).
Accordingly, for all the foregoing reasons, summary judgment is GRANTED as to
all claims in Count I of the Amended Complaint as to defendant Hulshof.
2.

Lewis

In Count I of the First Amended Complaint (Doc. No. 35), plaintiff alleges that
Judge Lewis failed to disclose the “Lewis letters” to defense counsel (Doc. No. 35, ¶
147) and further concealed a conflict of interest between defense counsel McFadin and
Woodworth related to McFadin’s representation of witness James Johnson These are
the sole allegations that expressly state that Lewis violated plaintiff’s 14th Amendment
procedural due process rights.
With respect to the allegations regarding Johnson and McFadin, it appears from
the record that Lewis sent McFadin copies of Johnson’s letters as well as a November
24, 1993 letter from Lyndel Robertson. Lewis also entered an order in the 1993 grand
jury docket, noting that Mr. Johnson’s letters were sent to McFadin and Hulshof, and
that the letter be otherwise sealed and kept separate and apart from the official grand
jury court file. Otherwise, as discussed by defendant Lewis, there is no admissible
evidence regarding the alleged conflict between Woodworth and his attorney McFadin,
or whether Lewis was aware of such a conflict.
Furthermore, as noted above in relation to the conspiracy claims, judicial
immunity applies to claims against Judge Lewis. Mireles v. Waco, 502 U.S. 9 (1991);
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Martin v. Hendren, 127 F.3d 720, 721-722 (8th Cir. 1997). Judicial immunity is lost only
if Lewis’ actions were not judicial or the actions were taken in the complete absence of
all jurisdiction. Id. With respect to Count I, forwarding of correspondence to defense
attorneys, as well as placing Johnson’s letter under seal, are official actions taken within
Lewis’s official role as judge, entitling him to judicial immunity. Furthermore, to the
extent that plaintiff alleges that Lewis suppressed exculpatory evidence as relates to the
Lewis letters, the Brady rule applies to prosecutors, not to judges presiding over grand
juries. Moreover, qualified immunity would apply to these claims as well, as no case
law (from 1993 or otherwise) shows that judges must disclose Brady material to the
defense, nor does case law reveal any additional duty be placed upon Lewis to further
investigate any purported conflict between Woodworth and his counsel.
Therefore, defendant Lewis’s motion for summary judgment as to Count I is
GRANTED.
V.

Conclusion
Accordingly, for the above-stated reasons: (1) Defendant Kenneth Hulshof’s

Motion for Summary Judgment (Doc. No. 225) is GRANTED; and (2) Defendant Judge
K. Lewis’ Motion for Summary Judgment (Doc. No. 238) is GRANTED. As these were
the only remaining defendants, this case is DISMISSED.

IT IS SO ORDERED.

Date: March 10, 2017
Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge

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