Court Limits Suit Over Vacated Rape Conviction

     (CN) – An innocent man who spent 16 years in prison after being wrongfully convicted of raping his 6-year-old daughter cannot sue those who led his prosecution, the 6th Circuit affirmed.




     The Cincinnati-based federal appeals court said the issues raised by Mark Norman Cleary – claims of detention without probable cause, fabrication of evidence and failure to disclose exculpatory impeachment evidence – were properly dismissed by a Michigan federal judge.
     In an unpublished, 34-page opinion, the three-judge appellate panel concluded that the blame for Cleary’s wrongful incarceration rests firmly on the shoulders of those who influenced his daughter Rachael, who was 7 at the time of her father’s arrest and trial, to fabricate allegations against her father.
     “The facts as alleged by Cleary present a tragic and regrettable situation that resulted in this plaintiff spending 16 years in prison, in part because of allegations by his own daughter that were alter recanted,” Judge David William McKeague wrote for the court on Feb. 2.
     “Nonetheless, the fault for his incarceration does not lie with the investigators and Macomb County officials named as defendants in the instant action,” they continued. “The named defendants were simply doing their jobs by investigating the allegations of abuse, and in doing their jobs none of the defendants acted in a way that would subject them to liability … for violations of Cleary’s constitutional rights.”
     Cleary was convicted of first-degree criminal sexual conduct in January 1989 following a trial in the Macomb County Circuit Court. He was sentenced to 20 to 30 years in prison based primarily on the testimony of his daughter who told social workers of the alleged sexual assault in graphic detail.
     At the time that the allegations were made against him, Cleary was involved in a bitter, ongoing dispute with his ex-girlfriend, Susan Schwartz, over his right to visit their two daughters.
     As the dispute escalated, Schwartz’s mother, Donna Simon, called Macomb County Child Protective Services and claimed that Cleary had sexually molested her granddaughter a year earlier, when the child was 6.
     During a subsequent meeting with a social worker, Rachael told investigators that she had been molested and provided additional details. After a doctor rendered an “abnormal” finding during a genital examination of the child, two social workers coached her extensively on how to testify about the abuse in court. The Macomb County Prosecutor’s Office then issued a warrant for Cleary’s arrest.
     Both the social workers and the doctor were also named as defendants in the current case.
     Rachael recanted the allegations 10 years later, testifying under oath that her father had never touched her in any improper or sexual manner, and that her mother had “put the idea into her head and that she had seen images in magazines that helped her concoct the story,” according to 6th Circuit’s summary.
     Explaining why she lied, Rachael, then 17, said she’d been afraid of her mother and grandmother.
     Cleary moved for and was granted a new trial in 2004, but charges against him were dismissed before it ever took place. He then filed the underlying lawsuit against individuals and entities involved in the state investigation and his prosecution.
     The District Court found that three of the defendants named in Cleary’s lawsuit were entitled to qualified immunity. The remaining defendants filed a motion for summary judgment, which the District Court granted, prompting Cleary’s appeal.
     In considering the man’s claims, the three-judge panel focused extensively on the concept of probable cause.
     For there to be probable cause for an arrest, “the facts and circumstances within the officers’ knowledge must be sufficient to warrant a man of reasonable caution to believe that an offense had been, was being, or was about to be committed,” the ruling states.
     “However, ‘a finding of probable cause does not require evidence that is completely convincing or even evidence that would be admissible at trial; all that is required is that the evidence be sufficient to lead a reasonable officer to conclude that the arrestee has committed or is committing a crime,'” it continues, quoting from a 2008 ruling that the court issued.
     Because none of those investigating the case knew or should have known Cleary was innocent, no violation of his constitutional rights occurred, McKeague wrote.
     “At worst … the finding of probable cause could have gone either way,” the ruling states.
     Cleary also failed to prove that a sheriff’s detective withheld evidence.
     “There is nothing to suggest that this evidence would have been material or would have called Rachael’s credibility or reliability into question for the purposes of Cleary’s … claim,” McKeague wrote.
     “The fault for Cleary’s … incarceration lies with those who fabricated or assisted in the fabrication of the allegations against him,” he wrote.

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