LA Investigators Denied Immunity by 9th Circuit

     (CN) – Two men wrongfully imprisoned for decades can advance lawsuits over the withholding of evidence that could have exonerated them, the Ninth Circuit ruled Wednesday.
     The decision comes in wrongful-imprisonment actions that two men brought against investigators with the Los Angeles County Sheriff’s Department.
     A three-judge appellate panel in Pasadena consolidated the cases and determined that the officers are not immune from liability because the law was clear at the time of their investigations that police were required to turn over exculpatory evidence.
     Frank O’Connell was convicted of the 1984 killing of Jay French in the parking lot of French’s apartment building. At the time of his death, French was in a custody battle with his ex-wife, Jeanne Lyon, with whom O’Connell had been romantically involved.
     O’Connell’s 1985 conviction was overturned in 2009 after a judge found that detectives J.D. Smith and Gilbert Parra had not turned over evidence that an eyewitness had identified another person as the potential suspect in a photo lineup.
     The judge also found that the detectives did not tell the prosecution or defense that French’s dying declaration – in which he shouted that the killer was someone his ex-wife had “hung around with” – could have pointed to another man who had previously made an attempt on French’s life.
     In the other case, Francisco Carrillo was convicted of the drive-by shooting and murder of Donald Sarpy in early 1991. Just 16 years old at the time, Carrillo ended up spending 20 years in prison.
     After five of the six eyewitnesses recanted their original identification and admitted that they could not see who shot Sarpy, a judge released Carrillo from prison in 2011.
     While O’Connell claimed that Smith and Parra blew their obligation to reveal exculpatory evidence, Carrillo accused former Deputy Craig Ditsch of steering a 16-year-old eyewitness into identifying him as the killer.
     In both cases, the officers failed to sway federal judges that immunity shielded them from civil liability.
     The Ninth Circuit agreed with the lower courts Wednesday, finding that the officers should have known that they were required to disclose exculpatory evidence under the 1963 Supreme Court decision in Brady v. Maryland.
     In 1978, well before the Carrillo and O’Connell investigations, the Ninth Circuit issued a ruling in U.S. v. Butler that made it “unmistakably clear that police officers and prosecutors alike share an obligation to disclose ‘pertinent material evidence favorable to the defense,'” Judge Raymond Fisher wrote for the court Wednesday.
     Fisher said Butler indisputably “put police officers on notice that their failure to disclose Brady information would constitute a violation of the defendant’s constitutional rights.”     
     Barry Litt, an attorney for O’Connell and Carrillo, applauded the decision for putting “to rest, once and for all, any question about the obligation of police officers to ensure that evidence favorable to the accused is provided.”
     “The court explained that that obligation existed at least as early as 1978, and it emphasized the words ‘at least,'” Litt said in an email. “There are many individuals who are in prison for 20 or 30 years or even more, and then are only able to establish that their rights were violated. This decision ensures that, in the appropriate circumstances, they can seek compensation for their decades of wrongful imprisonment.”
     In both O’Connell and Carrillo’s cases, the withheld evidence was clearly subject to the disclosure requirements, the circuit found.
     Evidence withheld from O’Connell’s case included that the only eyewitness to the shooting only saw the shooter in profile and asked to be hypnotized because he could not remember what the shooter looked like.
     Officers also failed to disclose that a witness who saw the shooter flee in a yellow Pinto had selected two photographs in a photo lineup, and said that he was “not positive” that the suspect was O’Connell.
     “Had this evidence been disclosed, the defense could have used it to impeach the eyewitnesses’ identifications of O’Connell as the killer,” Fisher said.
     Similarly, the officers’ failure to disclose evidence of a previous attempt on the victim’s life by a man who resembled the eyewitness description of the killer “would have cast doubt on O’Connell’s culpability,” Fisher said.
     Carrillo meanwhile has alleged that Ditsch failed to disclose that the eyewitness who identified him, Scott Turner, “initially chose several other photos from a ‘gang book’ – each of which Ditsch then told Turner ‘could not be the suspect shooter’ – before ultimately selecting Carrillo’s photo, which Ditsch affirmed as ‘the right choice,'” according to the ruling.
     When Turner planned to recant his identification of Carrillo before Carrillo’s second trial, Ditsch threatened him, Carrillo claims.
     “Any reasonable officer would have understood Turner’s choice of multiple other photos from a gang book and coached selection of Carrillo was potential impeachment evidence required to be disclosed under Brady,” Fisher said. “The same is true of Ditsch’s efforts to dissuade Turner from recanting his identification.”
     Because none of the officers are entitled to qualified immunity, the civil cases will return to District Court for further proceedings.
     Represenatives for the defendants have not responded to requests for comment, nor has Carrillo’s attorney.

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