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No Immunity for Cops Over Coerced Confession

ST. LOUIS (CN) - Police investigators must face claims that they coerced a murder confession from a severely mentally retarded man and planted evidence, the 8th Circuit ruled.

Matthew Livers filed a civil rights complaint alongside Nicholas Sampson, the man he implicated in his allegedly coerced confession. They claim that Nebraska state patrolmen and sheriff's officers in Cass and Douglas Counties coerced a confession from Livers that connected them to the April 2006 murders of Sharmon and Wayne Stock, an aunt and uncle of Livers.

With an IQ of 63, Livers is in the first percentile for mental functioning. During a six-and-a-half-hour voluntary interrogation by police, Livers denied involvement in the murders more than 80 times before apparently telling investigators what they wanted to hear.

The interview materials show that the confession consisted mostly of "Livers' responses to leading, yes-or-no questions," according to the court.

"Many of Livers' answers were 'I don't know,' 'I guess,' or 'I'm not sure,'" the court said. "Sampson's name entered the confession when Investigator [Earl] Schenck suggested Livers must have received the keys to Will's car from someone who had access to them. Livers responded that Sampson gave him the keys. Livers then agreed with Investigator Schenck's suggestion Sampson provided the shotgun and ammunition."

Prosecutors charged Livers and Sampson about a week and a half after the double murder had occurred. The charges against each man were dropped in December and October 2006, respectively, even though police had obtained confessions from different suspects linked by DNA evidence months earlier.

In 2010, David Kofoed, who headed the Douglas County Crime Scene Investigation Unit, was convicted on state charges of felony tampering with physical evidence in connection to the case. In May 2006, Kofoed purported to have found Wayne Stock's blood while testing the car of Sampson's brother, Will Sampson. This report conflicted, however, with the date on which Kofoed had actually searched the car. Another investigator did not find blood when he retested the area.

Jessica Reid and Gregory Fester, two Wisconsin teenagers, pleaded guilty to the Stock murders in March 2007 and are now serving life sentences.

Many of the individual investigators sued by Livers and Sampson sought summary judgment on the basis of qualified immunity, but a federal judge in Omaha said issues of material fact precluded such relief.

A three-judge panel of the 8th Circuit mostly affirmed last week, consolidating the appeals of Douglas County Sheriff Tim Dunning and the so-called Cass and NSP appellants, investigators who worked for Cass County or the Nebraska State Police.

"Livers and Sampson contend all appellants conspired with each other and with Commander Kofoed to fabricate evidence against them, in violation of their Fourteenth Amendment rights to due process," Chief Judge William Jay Riley wrote for the court.

"The District Court found, without further elaboration, 'there was a showing that evidence was fabricated' against Livers and Sampson and '[t]he extent of [the Cass appellants' and NSP appellants'] knowledge of, or complicity in, that act is a question of fact for the jury,'" Riley added (brackets in original). "In a qualified immunity interlocutory appeal, this finding is enough.

"For example, Livers and Sampson presented evidence allowing a jury to infer Commander Kofoed planted blood evidence in Will's car," Riley continued. "One can infer from this evidence that Commander Kofoed intended to implicate Livers and Sampson, men with close familial ties to Will. Evidence indicates Livers' confession was coerced. Investigator Schenck suggested Sampson provided Livers with the murder weapon and ammunition, and Investigators Schenck and [William] Lambert pressured Livers to change his story to place Sampson in the Stock home at the time of the murders. Some evidence also intimated Investigators Schenck and Lambert pressured Fester and Reid to change their stories to implicate Livers and Sampson in the murders. It is reasonable to infer Sergeant [Sandra] Weyers may have threatened [Livers' friend Ryan] Paulding to encourage Paulding to say Livers had admitted to the murders. A jury could infer Investigator [Charles] O'Callaghan's involvement in Livers' allegedly flawed polygraph examination and presence on the trip to Texas to interview Paulding shows he helped develop the strategy for interrogating Livers and Paulding or otherwise was a co-conspirator. Finally, there is testimony that Investigators Schenck and Lambert frequently asked DCCSI employees to retest items when initial tests did not link Livers or Sampson to the crimes, and one DCCSI employee reported feeling pressured to 'find something.' The District Court properly denied summary judgment to the Cass appellants and NSP appellants on this claim based upon the allegations, with supporting evidence, regarding their individual actions, and, to the extent Livers and Sampson prove a conspiracy, based upon the actions of their alleged co-conspirators."

Dunning, the Douglas County sheriff, did persuade the panel of his right to immunity.

"Livers also alleges Sheriff Dunning's supervision was inadequate because he did not properly investigate and discipline DCCSI employees for misconduct," Riley wrote. "Livers contends Sheriff Dunning never disciplined DCCSI employees for possible mishandling of evidence, which made Commander Kofoed think he would not be punished for planting evidence. This assertion is mere speculation and argument, and is not a basis for denying qualified immunity."

The 38-page decision also entitles the defendants to immunity on claims that they violated Livers and Sampson's due-process rights under the Fifth Amendment and that they failed to disclose exculpatory evidence in violation of Brady v. Maryland.

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