Ex-New York DA fights to duck malicious prosecution claims from decades-old murder case

MANHATTAN (CN) — A 23-year-old murder case saw the light of day in the Second Circuit Court of Appeals on Wednesday, when a former New York district attorney argued he should be granted immunity from malicious prosecution charges for putting the wrong man behind bars.

Michelle Harris was 35 years old when she disappeared in upstate New York the night of Sept. 11, 2001. Her car was found the next morning near her Tioga County home, which she shared with her four children and estranged husband Calvin Harris.

Reports at the time suggested that the terrorist attacks on the World Trade Center kneecapped the investigation into Michelle Harris’ disappearance, and suspicion from local authorities quickly pinpointed Calvin Harris as the likely suspect. Four years after his ex-wife’s disappearance, a grand jury indicted Calvin Harris on a second-degree murder charge.

Calvin Harris would end up being convicted twice for the murder of his ex-wife before he was finally acquitted by a state judge in 2016 — his fourth trial for the supposed killing.

The following year, Calvin Harris filed a long-promised malicious prosecution lawsuit against New York state police, Tioga County and its then-district attorney Gerald Keene, among other individual defendants. Seeking compensatory and punitive damages, Calvin Harris accused the defendants of being negligent in their investigation, claiming that they conspired to target him despite a growing body of evidence suggesting other more likely suspects were responsible for his ex-wife’s disappearance.

A federal judge denied the defendants’ effort to dismiss the case, finding the malicious prosecution claims could seem plausible to a reasonable jury.

Appealing that ruling in front of the Second Circuit on Wednesday, Keene’s attorney Jonathan Bernstein argued his client should be entitled to absolute immunity since he was only involved in the case as a prosecutor, per his duty as the district attorney at the time.

U.S. Circuit Judge Susan Carney, a Barack Obama appointee, appeared skeptical that Keene wasn’t also involved in the case as an investigator, however. She noted Keene was at least partly responsible for the production of evidence, an activity that wouldn’t fall within his protected duties as district attorney.

“I mean, four years passed before there was an indictment, and he was involved during those years,” Carney said, acknowledging that Keene was supposedly responsible for color-correcting photos of blood found at the scene.

Bernstein argued that his client was hardly an “investigator,” and that he was only truly involved with presenting that evidence to a jury.

“He’s not at the scene, he’s not collecting the blood, he’s not taking the photographs,” Bernstein said. “He’s not involved in that part of the investigation.”

Carney shot back that Keene was apparently involved in the “presentation and manipulation of the photographs.” Bernstein disagreed, drawing concern from another judge, Obama-appointed U.S. Circuit Judge Denny Chin, who speculated that the factual disagreements at issue in Keene’s appeal could mean that the Second Circuit lacks the authority to weigh in at all.

Calvin Harris’ lawyer Donna Aldea echoed the same sentiment, arguing Wednesday that the appellate court indeed “lacks jurisdiction over the present appeal.” The lower court’s ruling was correct, Aldea said, because there was more than ample evidence that the defendants fabricated evidence to frame her client.

“Looking at the record here in totality, there is more than ample evidence from which a reasonable jury could have concluded that these defendants acted together in a conspiracy to fabricate evidence on all of the most important elements [of the case],” she said.

Aldea argued investigators withheld relevant phone records that proved Calvin Harris’ innocence, and manipulated witnesses into testifying against him. 

“They even fabricated blood evidence,” Aldea added, referencing the less than 10 drops of Michelle Harris’ blood that was found in the family home. “The physical evidence that was the heart of this case, the evidence that was recovered in the household was not evidence of a crime. It was not evidence that Michelle had died in the house. To the contrary, it was evidence that she lived in the house.”

U.S. Circuit Judge Richard Sullivan, a Donald Trump appointee, rounded out the panel. The judges did not indicate how or when they will rule.

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