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Armstrong v. Daily

United States Court of Appeals, Seventh Circuit

May 11, 2015

RALPH D. ARMSTRONG, Plaintiff-Appellee,
KAREN D. DAILY, et al., Defendants-Appellants

Argued September 9, 2014.

Page 530

Appeals from the United States District Court for the Western District of Wisconsin. No. 12-cv-426-bbc. Barbara B. Crabb, Judge.

For RALPH D. ARMSTRONG, Plaintiff - Appellee (13-3424): Russell R. Ainsworth, Attorney, Gayle Horn, Attorney, Jon C. Loevy, Attorney, LOEVY & LOEVY, Chicago, IL.

For KAREN D. DAILY, DANIEL J. CAMPBELL, Defendant - Appellants (13-3424): Corey F. Finkelmeyer, Attorney, OFFICE OF THE ATTORNEY GENERAL, Wisconsin Department of Justice, Madison, WI.

For RALPH D. ARMSTRONG, Plaintiff - Appellee (13-3482): Russell R. Ainsworth, Attorney, Gayle Horn, Attorney, Jon C. Loevy, Attorney, LOEVY & LOEVY; Chicago, IL.

For JOHN I. NORSETTER, former Assistant Dane County District Attorney, Defendant - Appellant (13-3482): Sheila M. Sullivan, Attorney, Timothy J. Yanacheck, Attorney, BELL, MOORE & RICHTER, S.C., Madison, WI.

Before FLAUM, ROVNER, and HAMILTON, Circuit Judges. FLAUM, Circuit Judge, concurring in part and dissenting in part.


Page 531

Hamilton, Circuit Judge.

Plaintiff Ralph Armstrong was imprisoned for 29 years for the rape and murder of Charise Kamps--a crime that he maintains he did not commit. His conviction was set aside in 2005, and in 2009 a Wisconsin state judge dismissed the charges entirely because the prosecution had destroyed key exculpatory evidence, rendering a fair trial impossible. Armstrong then brought this civil suit under 42 U.S.C. § 1983 seeking damages from the prosecutor and state crime laboratory technicians who he alleges deprived him of his liberty without due process of law by destroying exculpatory evidence to frame him for Kamps' murder. Defendants appeal from the denial of their motions to dismiss this case under Federal Rule of Civil Procedure 12(b)(6) on grounds of qualified immunity. In this posture, we have only the complaint before us and therefore must treat Armstrong's allegations as true.

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Armstrong alleges a shocking course of prosecutorial misconduct. According to the complaint, the prosecutor quickly fixated on Armstrong as the murderer and sought to build a case against him by any means necessary. Those means included destroying potentially exculpatory evidence from the crime scene, arranging for the highly suggestive hypnosis of an eyewitness, contriving suggestive show-ups for identification, and concealing a later confession from the true killer that was relayed by a person with no apparent motive to fabricate the report. Finally, the prosecutor enlisted state lab technicians to perform an inconclusive DNA test that consumed the last of a sample that could have proven Armstrong's innocence and pointed to the true killer. If these allegations are true--and some are based on the state court's factual findings--the prosecution of Armstrong was a single-minded pursuit of an innocent man that let the real killer to go free.

A full explanation of these events will require factfinding in the district court. For now, only two claims are before us. First, Armstrong claims that prosecutor John Norsetter acted in bad faith by allowing the loss or destruction of drug paraphernalia found at the crime scene--evidence that would exculpate Armstrong and implicate the real killer. This evidence was allegedly tossed in a plastic trash bag, placed in an office storage locker, and lost before Armstrong's trial in 1981.

Second, Armstrong claims that after the Wisconsin Supreme Court vacated his conviction and ordered a new trial in 2005, two state lab technicians, Karen Daily and Daniel Campbell, deliberately violated a state court order to preserve evidence by destroying an exculpatory DNA sample in 2006. At the request or order of Norsetter, but without notice to the court or the defense, Daily and Campbell performed an inconclusive test that consumed all of a DNA sample extracted from a newly discovered semen stain on the victim's bathrobe belt. This test could not distinguish between Armstrong and his late brother, who Armstrong claims was the true killer. (Armstrong's brother had allegedly confessed to an acquaintance, who in turn told prosecutor Norsetter in 1995.) The destruction of the DNA sample prevented Armstrong from performing other tests that could have distinguished between him and his brother. Armstrong spent three more years in prison before a state court finally dismissed the charges because of the destruction of the DNA sample.

We affirm the district court's decision to allow both claims to proceed. First, plaintiff's federal due process claims against all defendants based on the destruction or loss of exculpatory evidence are not barred by the availability of state tort remedies for the same wrongs. The doctrine of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), does not apply to the actions of law enforcement officers that undermine the fairness of a criminal trial. Second, at the time of the original investigation, it was clearly established under Killian v. United States, 368 U.S. 231, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961), and then Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that bad-faith destruction or loss of exculpatory evidence would violate a suspect's due process rights. Brady made clear that the police and prosecution could not suppress exculpatory evidence. A reasonable police officer or prosecutor would not have concluded that he could instead destroy evidence to avoid disclosing it to the defense. Third, if plaintiff can show that the unconstitutional destruction of exculpatory evidence in 2006 caused him to suffer a deprivation of liberty, he can sue for that injury without having gone through a second trial.

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Finally, while there is some disagreement among courts about the conditions for obtaining a civil remedy for destruction of exculpatory evidence, those disagreements do not support a qualified immunity defense. It was clearly established in 2006 that the defendants' alleged conduct of destroying the evidence would violate defendant's due process rights. That is sufficient to defeat the qualified immunity defense.

I. Factual and Procedural Background

Because we are reviewing a decision on a motion to dismiss under Rule 12(b)(6), we accept the allegations of the complaint as true and draw from those allegations all reasonable inferences in favor of the plaintiff. Parish v. City of Elkhart, 614 F.3d 677, 679 (7th Cir. 2010); Parish v. City of Chicago, 594 F.3d 551, 552 (7th Cir. 2009). Whether Armstrong can prove his allegations is not the issue now before us. We must proceed on the premise that the defendants acted as Armstrong has alleged and did so in bad faith.

A. The Crime Scene and Initial Investigation

Charise Kamps was raped and murdered in her home in Madison, Wisconsin, on June 24, 1980. Defendant John Norsetter, then an assistant district attorney for Dane County, arrived on the scene shortly after her body was discovered. Norsetter advised and directed Madison police officers on all aspects of the investigation, including collecting and retaining evidence. The officers discovered two items of physical evidence at the center of Armstrong's claims: a bathrobe belt used as the murder weapon and drug paraphernalia that could have shown who had been in Kamps' apartment the evening she was murdered.

The officers found the bathrobe belt draped over Kamps, who was lying on her bed. The belt was not forensically analyzed in the initial investigation in 1980. However, semen stains on the accompanying bathrobe were tested. Results showed that the stains came from the same secretor type as Armstrong, though Kamps' boyfriend and 80 percent of the population also fit that profile. More precise DNA analysis was not available for the initial investigation in 1980.

The officers also found drug paraphernalia--a small mirror, razor blade, and silver straw, all used to snort powder cocaine--lying on the kitchen table, suggesting recent use. The officers and Norsetter knew that this evidence could show who was in Kamps' home the night of her death. By interviewing witnesses, including Armstrong, the police had learned that Kamps had tried to buy cocaine on the night of her murder. A person who used cocaine with Kamps that night would have been an obvious suspect in the murder. Witnesses accused Armstrong of selling cocaine to Kamps and using it with her that night, but Armstrong denied it. The drug paraphernalia evidence also could have corroborated Armstrong's claim that he had not provided cocaine to or used cocaine with Kamps that night. But the drug paraphernalia was never examined for fingerprints or subjected to any other forensic testing. Instead, it was tossed into a large plastic trash bag and left in an office storage locker at the police station, only to be lost.

The police also canvassed the neighborhood and found a witness, Riccie Orebia, who saw a man suspiciously entering and leaving Kamps' apartment building the night of the murder. Orebia described that person as roughly 5'6" tall and weighing 165 pounds. The man she saw was also shirtless with no tattoos and had a

Page 534

mustache. Armstrong is 6'2" tall and weighed at least 200 pounds. He had dark, noticeable tattoos on his upper arms, and no mustache.[1]

Norsetter and the police had Orebia hypnotized. During the hypnosis sessions, Armstrong alleges, Orebia was " allowed to view" photographs of Armstrong and his car. After the hypnosis, the police arranged a series of show-ups with several different men, including Armstrong. All the men were put through a reenactment near the scene of the crime to assist Orebia in identifying the man she saw the night of the murder. Orebia selected Armstrong. The full details of the show-ups, which Orebia later described as rigged, are recounted in Armstrong v. Young, 34 F.3d 421 (7th Cir. 1994), in which this court affirmed the denial of federal habeas corpus relief to Armstrong because, among other issues, the totality of circumstances indicated that Orebia's identification was sufficiently reliable that its admission as evidence was permissible.

Testimony from a hearing inquiring into the prosecution's conduct in this case sheds further light on the initial investigation. The complaint alleges that in that hearing, Norsetter testified that his attitude and approach to the Kamps investigation were that no matter what exculpatory evidence might emerge, he would continue to believe that Armstrong committed the crime and would act accordingly.

B. Armstrong's Conviction and Subsequent Challenges

A jury convicted Armstrong of first-degree murder and first-degree sexual assault in 1981. He was sentenced by the trial court to life plus 16 years in prison. Armstrong sought post-conviction relief on two principal grounds. Immediately after his conviction, he argued to state and federal courts that the hypnosis and rigged show-ups were unduly suggestive and violated his due process rights. As noted, that issue was conclusively resolved against Armstrong by this court in 1994. Armstrong v. Young, 34 F.3d 421, 430-31 (7th Cir. 1994).

Armstrong later pursued another avenue for postconviction relief, arguing for a new trial because of newly discovered evidence. The State had argued in the trial that the physical evidence showed " conclusively and irrefutably" that Armstrong was the murderer. State v. Armstrong, 2005 WI 119, 283 Wis.2d 639, 700 N.W.2d 98, 101 (Wis. 2005). Armstrong then presented the results of newly available DNA testing that excluded him as a possible source of the semen stains on the victim's bath-robe. The State, despite its arguments at trial, responded by minimizing the importance of the physical evidence. The state trial court ruled against Armstrong because he failed to prove that a different result would be reached in a new trial with the new evidence. The Wisconsin Court of Appeals affirmed in an unpublished order. State v. Armstrong, No. 92-0232-CR, 178 Wis.2d 314, 504 N.W.2d 873 (Wis. App. June 17, 1993) (Table).

Years later, Armstrong renewed his request for a new trial in another petition to the state courts. He presented the results of additional DNA testing. The results definitively excluded him as the possible source of hair on the victim's bathrobe belt, which the State had asserted at trial belonged to Armstrong. Armstrong also offered an expert's analysis that swabs and scrapings taken from Armstrong's nails

Page 535

and cuticles the day of the murder contained no blood at all, contrary to the State's argument at trial that the victim's blood had been detected. Finally, Armstrong pointed out that DNA analysis excluded him as the source of semen on Kamps' bathrobe, which the State had linked to Armstrong at trial through the crude test of secretor types.

The state trial and appellate courts again denied relief, but the Supreme Court of Wisconsin reversed. It held that the real controversy of identification was not fully tried because the jury never considered the newly discovered exculpatory evidence and heard instead that the physical evidence showed conclusively that Armstrong was guilty. State v. Armstrong, 700 N.W.2d at 128-29. The court vacated Armstrong's conviction and ordered a new trial. In the meantime, however, Armstrong stayed in prison.

C. Handling the Evidence on Remand

Armstrong was never retried. In 2009, after he had served 29 years in prison for Kamps' murder, the state trial court dismissed the charges because the State had acted in bad ...

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