(CN) – A Ninth Circuit hearing Thursday focused on what a San Diego detective knew as it considered whether officers who sought a search warrant to investigate a retired criminalist’s home after his DNA connected him to a cold case murder investigation should be entitled to qualified immunity.
Detectives Michael Lambert and Maura Mekenas-Parga appealed U.S. District Judge Dana Sabraw’s finding in May 2017 that they were not entitled to qualified immunity in a civil rights and wrongful death lawsuit filed by Rebecca Brown, crime lab employee Kevin Brown’s widow.
Lambert investigated Brown for the cold case murder of 14-year-old Claire Hough after his semen turned up in DNA evidence that was retested in the 1984 case.
But when Brown worked in the San Diego Police Department’s crime lab in the 1980s, technicians often used samples of their own semen as controls when testing evidence. Brown’s widow claims even though the evidence against her husband points to cross-contamination in the lab, Lambert nonetheless obtained a search warrant to ransack the couple’s home.
Rebecca Brown says her husband’s distress over being considered a suspect motivated his 2014 suicide.
The family’s attorney, Eugene Iredale, says the lawsuit prompted a change in laboratory procedures.
At Thursday’s Ninth Circuit hearing in Pasadena, the panel seemed unconvinced a reasonable detective would seek a search warrant against a retired crime lab employee whose DNA turned up on a decades-old swab given the lab’s history of using what one judge called “a stupid practice.”
“Under the circumstances, could a magistrate judge reasonably conclude the crime analyst committed the crime?” U.S. Circuit Court Judge Andrew Hurwitz asked San Diego Chief Deputy City Attorney Catherine Richardson.
“[There’s the] completely negligent history on the part of your government agency of analysts using their own semen to test as a control. Had the magistrate been told that, a fact she wasn’t told, is there any reason to believe she would have issued the search warrant?” Hurwitz pressed.
Richardson said the panel needed to consider what Lambert knew, which included his belief contamination was impossible – or at the very least unlikely – based on witness testimony.
U.S. Circuit Judge Johnnie B. Rawlinson pointed out “a big difference” between impossible and unlikely.
Richardson said there was no legal precedent to put the detective on notice that he would have needed to include the possibility of evidence contamination in his affidavit to seek the warrant.
“That he needed to apprise the magistrate judge that contamination was impossible or unlikely?” Rawlinson asked, raising her voice an octave in disbelief.
Hurwitz called the use of crime analysts’ semen in the lab a “red flag on contamination.”
“That’s a fact that’s just critical to the analysis of the affidavit, isn’t it?” Hurwitz said.
Iredale told the panel Lambert had access to information about the initial vaginal swab from Hough, which had no sperm cells on it when tested in 1984.
“It’s almost definitive proof that what we have here is contamination,” Iredale said, noting when the swabs were re-examined in 1999 and 2000, two were stuck together. That’s when the sperm cells showed up that were “not there in 1984,” according to Iredale.
Richardson countered there was no evidence of a conversation between Lambert and another crime analyst who worked with Brown about the contamination issue before Lambert sought the warrant to search Brown’s home.
He added that Lambert did a significant amount of work before filing the affidavit in the 30-year-old case.
“This wasn’t a case where he sloppily threw together information … there’s no evidence he knew the information that wasn’t included was material to the determination on the warrant,” Richardson said.
U.S. Circuit Judge Michael Melloy, sitting by designation from the Eight Circuit Court of Appeals, rounded out the panel.