Second Circuit rejects ex-New York DA’s request for immunity from botched murder probe claims

MANHATTAN (CN) — An ex-New York district attorney and two detectives can’t get immunity from malicious prosecution charges after their murder investigation led to the conviction of an innocent man more than two decades ago.

In a 13-page order Friday, a trio of Second Circuit judges said the court lacks jurisdiction to give officer immunity to former Tioga County District Attorney Gerald Keene and New York State Police investigators Steven Anderson and Susan Mulvey since in the bulk of their appeal they dispute the facts of the case, rather than the law.

“Applying this rule here, we must dismiss the appeal for lack of jurisdiction,” the judges wrote.

Barack Obama-appointed U.S. Circuit Judges Susan Carney and Denny Chin, as well as the Donald Trump-appointed U.S. Circuit Judge Richard Sullivan, were behind Friday’s ruling.

The underlying case against Keene, Anderson and Mulvey was filed by Calvin Harris, whose estranged wife Michelle disappeared on Sept. 11, 2001. The investigation stalled for years, reportedly hampered by the terrorist attacks on the World Trade Center that took place the day of Michelle’s disappearance.

But in 2005, Keene got a grand jury to indict Harris for murder. Harris was convicted twice for killing his ex-wife until he was finally acquitted by a state judge in 2016.

The following year, Harris filed a long-promised malicious prosecution lawsuit accusing Keene, Anderson and Mulvey of negligently conducting their investigation and conspiring to target him as their key suspect, despite a growing body of evidence that suggested 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. Their attempt to undo the ruling fell flat Friday when the Second Circuit judges dismissed their appeal.

The appellate ruling, while quick, was no surprise: During oral arguments last week the judges appeared skeptical that the defendants were appealing matters of law, and instead were disputing that they had been as negligently involved in the case as Harris claims.

“On appeal, none of these appellants raises a pure question of law as to whether they enjoy qualified or absolute immunity against Harris’s claims,” the judges wrote.

“Instead, each argues — in lengthy briefs brimming with factual assertions but short on legal argument — that the summary judgment record compels the conclusion that they are entitled to immunity because none of them did what Harris alleges. Because these arguments dispute the facts, not the law, we lack jurisdiction to review them at this time.”

Keene’s attorney Jonathan Bernstein, of the firm Goldberg Segalla, argued last week that his client wasn’t involved with the collection of evidence at all, only with presenting that evidence to the jury — activities that would render him immune from prosecution since they fell within his duties as the district attorney. Judge Carney was hesitant to accept that fact, acknowledging that the case evidence shows Keene was involved with color-correcting photos of blood found at the scene.

Bernstein disagreed. “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.”

Ultimately, the judges sided with Harris’ lawyer, Barket Epstein Kearon Aldea & LoTurco’s Donna Aldea, who voiced that the Second Circuit lacks jurisdiction since, as the judges ruled Friday, the defendants were disputing the facts of the case rather than law.

“For nearly two decades, Cal Harris was relentlessly pursued for a crime he did not commit, with law enforcement engaging in tactics to harass and traumatize him and his children and, when that failed, outright fabricating evidence against him while his wife’s killer remained at large, uninvestigated," Aldea told Courthouse News after the ruling. “The Second Circuit’s decision means that Cal’s lawsuit against the state police and prosecutor will now proceed to trial, where they can finally be held accountable for their actions.”

Harris and Bernstein did not immediately respond to requests for comment on Friday.

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