In 1984, Clyde Spencer’s 5-year-old daughter from his first marriage, Kathryn, supposedly revealed to Spencer’s second wife that she had been sexually abused by Spencer and by her mother, Spencer’s ex-girlfriend and her 8-year-old brother, Matthew. Spencer took two polygraph tests, the first of which was inconclusive. The second indicted some light deception.
Clark County Sheriff’s Detective Sharon Krause was among the officials who investigated and interviewed several interested parties, all of whom denied knowing about any sexual abuse. Kathryn herself provided conflicting statements, and a medical examiner found no evidence of abuse. But when preparing her investigative reports, Krause fabricated several quotes from interviews with Matthew and Kathryn.
In December 1984, a Clark County prosecutor interviewed Kathryn on videotape. The child could not describe within the first 45 minutes the conduct of which Spencer was accused. The parties took an hour break then, during which — Kathryn testified at Spencer’s civil trial — she was coached as to what to say. After the break, she described the supposed abuse.
The prosecutor who conducted the interview recommended not charging Spencer, but the office did so anyway in January 1985 and Spencer pleaded not guilty.
Spencer and his second wife separated, and about a month and a half after the charges were filed, she had her 4-year-old son, Hansen (Spencer’s stepson), stay the night with Spencer at his motel. Spencer’s attorney described this as a “set up.”
Krause then interviewed Hansen, who claimed — and still claims — that Spencer sexually abused him that night, and that Spencer abused all three children the previous summer. Krause interviewed Kathryn and Matthew again and once again fabricated quotes.
After he was charged with statutory rape of all three children, Spencer entered an Alford plea. He was sentenced to life sentences and 171 months, but the governor of Washington commuted his sentence in 2004. In 2010, the charges were dropped.
The next year, Spencer sued Krause and her supervisor, Clark County Sheriff’s Sgt. Michael Davidson, for fabricating evidence. A jury awarded him $9 million in damages, but the U.S. District Court for the Western District of Washington ruled that Krause and Davidson were entitled to judgment as a matter of law because Krause did not know, nor should she have known, that Spencer was innocent.
Writing for a unanimous three-judge panel of the Ninth Circuit on Thursday, U.S. Circuit Judge Susan Graber said this reasoning misses the mark. To prevail on his claim, Spencer had to prove that Krause fabricated evidence and that the fabrication deprived him of his liberty.
“Krause’s investigative reports contained scores of quotations attributed to Kathryn and Matthew, both of whom unequivocally testified at trial that they had never made those statements,” Graber wrote. “Kathryn told Krause that no abuse had occurred. Krause falsely reported, in quotations attributed to Kathryn, that Kathryn had made detailed, explicit statements of abuse. Plaintiff testified that, due to the fabricated evidence, he entered an Alford plea, causing him to spend nearly two decades in prison.”
The investigator’s knowledge of the innocence of the accused is material in a case where the accused cannot offer direct evidence of fabrication, Graber wrote. In this case, though, Spencer offered precisely that. Therefore, the panel reversed and remanded with instructions to reinstate the jury verdict.
Spencer was represented by Kathleen Zellner of Downers Grove, Illinois; Krause by Guy Bogdanovich with Law Lyman Daniel Kamerrer & Bogdanovich in Olympia. Neither could be reached for comment Thursday.
Jeffrey Freimund with Freimund Jackson & Tardif in Olympia represented Davidson and declined to comment.
U.S. Circuit Judges Sandra Ikuta and Andrew Hurwitz joined Graber on the panel.