Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: Federal Procedure (page 1 of 3)

Seventh Circuit’s Decision Discourages the Code of Silence

By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

Who can serve as witnesses in police brutality cases? On January 28, 2016, the Seventh Circuit Court of Appeals provided an answer with its decision in United States v. Smith, Nos. 14-3744, 14-3721.

In September 2012, Putnam County Officer Terry Joe Smith punched a handcuffed Cletis Warren in the face. The ambulance took Warren to the hospital to stop the profuse bleeding. Fellow officers at the scene heard Smith say, “I guarantee I broke that mother fucker’s nose.”

Several months later, Smith arrested Jeffrey Land for domestic violence. After Smith handcuffed Land, he lifted Land in the air, dropped him, and drove his knee into Land’s sternum, causing Land to defecate on himself. Smith bragged about the incident to a fellow officer and took pride that it was not the first time.

These two incidents of police brutality are but a small sample of the ills of police misconduct plaguing our society.

A jury found that Smith violated 18 U.S.C. § 242 by subjecting Warren and Land to the intentional use of unreasonable and excessive force in violation of their constitutional rights. Smith was sentenced to 14 months in prison and two years of supervised release.

Both Smith and the government appealed to the Seventh Circuit: Smith appealed his conviction, and the government appealed the lenient sentencing. The panel ruled for the government, upholding the conviction and requiring the district judge to resentence Smith based on the guidelines.

Officers who witnessed Smith’s assaults testified that his use of force was unjustified because neither Warren nor Land were resisting. In the court’s words, the officers testified to Smith’s “violent, gratuitous, and sadistic batteries of Warren and Land.”

Smith’s lawyer objected to the officer’s testimony by asserting that they were unqualified expert witnesses under Federal Rule of Evidence 702. Writing for the panel, Judge Posner upheld the trial court’s rejection of that objection under Rule 701. Under Rule 701, a non-expert witness can give an opinion based on the witness’s perception to help determine the fact in issue that isn’t based on scientific, technical, or specialized knowledge.

Police use of excessive force has been nothing short of controversial. In a 2010 annual report by the Cato Institute, excessive force complaints made up 56.9 percent of cases that involved the physical use of force by peace officers. On July 17, 2014, a plainclothes police officer applied a chokehold to Eric Garner while a swarm of officers tried to pin him to the ground. Garner gasped for air and uttered his final words, “I can’t breathe.” Mr. Garner’s death serves as a prime example of excessive force and many Americans’ worst fears when they have face-to-face contact with the police.

With this decision, the Seventh Circuit discourages the code of silence that exists within the police community. The officers stood up despite the misconception that they were turning their backs on one of their own.

Child Custody Battle From Over the Border

<> on April 1, 2014 in Nogales, Arizona.

By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

We all know child custody gets ugly within the United States, but what happens when it becomes tug-a-war between U.S. jurisdiction and jurisdiction outside of the U.S.? Judge Ripple wrote the opinion for a three- judge panel to better understand this battle in Ortiz v. Martinez.

Mr. Ortiz and Ms. Martinez lived together with their two children, A.O, a seven year old, and L.O, a sixteen-year-old boy. They all lived together in Mexico City. On August, the couple purchased round-trip tickets to Chicago to visit Martinez’s family. Ortiz was scheduled to return to Mexico on the 13th, and the rest of the family on the 20th. Ortiz retuned, but Martinez and the children did not. She informed Ortiz that her and the children would not be returning. Keeping the children in the United States would secure the safety of the children. In particular secure the safety of, A.O., from being sexually molested and emotionally abused by Ortiz.

Ortiz filed action under conditions of the Hague Convention seeking the return of the two children to Mexico. Martinez asserted that Ortiz had acquiesced to her retention of the children in the United States, permitting the district court to deny the return of the children under Article 13(a). Ms. Martinez claimed she had a claim under Article (b) because the children faced “grave risk” of harm if returned. She lastly presumed that the return would contravene with laws of the State of Illinois, the U.S. Constitution, and fundamental principles of human rights. Later, Martinez invoked Article 13, expressing L.O.’s desire to remain in the United States.

Dr. Machabanski, a psychologist, was appointed by the court to evaluate the children. The district court held a three-day hearing. It heard testimony from Martinez, Ortiz, and family members, and a camera interview was conducted for the two children. The court heard substantial evidence supporting the claim that Mr. Ortiz had sexually abused A.O. Martinez, including inappropriate touching of their daughter in the vaginal area. The doctor first told her that the rashes were diaper rashes and a cream was prescribed; however, the rashes reappeared. Martinez first perceived inappropriate contact when A.O. was three years old in the bathroom, where A.O. was naked and against the wall and Ortiz on his knees, naked in front of her.

A.O. corroborated this testimony explaining with gestures, and words. Dr. Machabanski testified that A.O. exhibited behavior consistent with having being sexual abused and she portrayed negative emotional toward her father, Ortiz, during playtime. The court dismissed the best wishes of the child defense, and independently found that L.O. was old enough and mature enough to make his own decision.

The Seventh Circuit reviewed the lower courts factual finding for clear error and its conclusion that those facts established a grave risk of harm de novo. The Court found that Mr. Ortiz’s evidence lacked credibility. Their reasoning was that Martinez wanted to flee to the states because he was having an affair, and brainwashed A.O. to testify. The Court found that the claim that Ortiz sexually abused his daughter meets the clear and convincing standard. The evidence of sexual abuse was substantial and thus met the grave risk exception.

Homicide By Strangulation… During Sex

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By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

For one man, a seemingly great night turned into a long journey through the judicial system. In Thomas v. Clements, the Seventh Circuit Court of Appeals reviewed a man’s conviction where he killed his wife after applying too much pressure on her during sex.

Joyce Oliver-Thomas and Oscar Thomas were married. After nine years of marriage, the two divorced; however, Oliver allowed Thomas to continue living in her apartment where the two continued a sexual relationship. On the night of the incident in question, the police received a call from Thomas saying that Oliver was unconscious. When the police arrived Oliver was unresponsive, eyes open, and without any pulse. She was announced dead at the hospital.

Thomas gave two inconstant statements. He first stated that he left the apartment and came back and found Oliver grabbing her neck in a choking manner. He later stated that he left the apartment and began watching a pornographic movie. When he returned he and Oliver had sex, during which they fell off the bed and continued to have sex. He mentioned that at one point while engaging in sexual activity he had his arm around her neck. Thomas was found guilty by the trial court for unintentionally causing Oliver’s death by putting pressure on her neck for too long during sex. The trial court ruled under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and Thomas appealed, alleging that the wrong standard was applied.

To prevail on his claim, Thomas had to first show that his counsel’s performance was deficient, meaning it fell below the objective standard of reasonableness. Thomas argued the defense counsel was deficient in failing to consider and consult with a pathologist who would have reviewed the autopsy report and testified. Dr. Mainland’s (the plaintiff’s expert) pretrial testimony showed that Thomas acted intentionally. This corroborated with the testimony of the plaintiff in which he admitted having his arm around her neck before she died, as well as the counsel choosing not to argue the issue of causation. The combination of these factors gave what seemed to be a reasonable inference of intent. There were no signs of fight or struggle between Thomas and Oliver, however. Therefore,  counsel should have known there was reason to question a finding of intentional homicide. A responsible counsel would have at least contacted an expert to check if the medical findings could be reconciled.

Next, Thomas had to show that there was a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different. The expert mention that strangulation would likely result after four minutes of pressure, meaning there were roughly fifty-five minutes in which Oliver was not being choked to death. All parties admit there was no evidence of external marks on either Thomas or Oliver. Dr. Teas’s testimony in the post-conviction hearing stated that because there were no external bruising on the neck or bone, the necessary injuries of strangulation were missing.

Dr. Teas’s testimony provided that even if Thomas did cause Oliver’s death, it was not intentional. The facts were consistent with an accidental death and sufficient to raise a reasonable doubt; therefore, there was evidence of prejudice for ineffective assistance of counsel purposes. The Seven Circuit  ruled that after reviewing the case de novo the counsel’s performance in relation to a pathologist expert was deficient and that Oliver was prejudiced by counsel’s deficient performance.

The Unlawful Inquisition

By: Jonathan Joseph,  MBA, CPA
J.D. Candidate, 2016
Valparaiso University School of Law

How much information may a judge solicit from a telephonic interview? When does an oral interview become an unlawful interrogation? A recent case decided by the Seventh Circuit attempts to answer these very questions.

After serving a term in an Illinois state prison for a sex crime, the plaintiff was committed to a Treatment and Detention Facility, pursuant to the civil Sexually Violent Persons Commitment Act. He had a job in the facility’s dietary services department, but was fired. He filed suit against four dietary department staff members under 42 U.S.C. 1983. The plaintiff alleged that he was fired in retaliation for previous lawsuits he had brought against staff members. As required by 28 U.S.C. § 1915(e)(2), the district judge screened the complaint at the outset of the case to determine whether it “fail[ed] to state a claim upon which relief may be granted.” The judge found that the lawsuit “contained only conclusory allegations [in which] the plaintiff simply stated he had filed previous lawsuits and assumed people knew about it.” He ruled that the complaint did, indeed, fail to state a claim, and dismissed the suit with prejudice.

The judge had interviewed the plaintiff by telephone. During the interview, which the judge characterized as a “merit review,” no transcript or audio recording was kept. One could characterize the interview as inquisitional in its nature. The term “inquisition” has ominous overtones to those familiar with European medieval religious history, but today, an inquisitorial hearing is defined as “a hearing in open court in which the judge examines the parties to the suit rather than leaving examination to the lawyers, which is adversarial rather than inquisitorial.” In this case, the district judge went beyond the inquisitorial in its modern sense, because he examined the plaintiff in “secrecy being secured by the absence of a transcript, or even a judge’s or reporter’s notes.”

The Seventh Circuit reversed the district judge’s decision, noting that it previously rejected ex parte telephonic interrogation as a method of screening complaints to determine whether they state a claim. The court recognized that there are circumstances that merit telephonic interviews. These  can involve parties who are incarcerated and are done in order to save the time and expense of transporting a prisoner to court. However, these circumstances do not allow for questioning regarding the validity of the case. It is permissible for the judge to interview a pro se detainee plaintiff to determine what the facts of the case are, but not whether the plaintiff’s case is meritorious.

When a judge conducts any questioning of a witness, plaintiff, or defendant, that interview must be recorded and entered into the record. The judge must ensure that a transcript or recording of the interview be made to allow appellate review and prevent a reversal of a case that even the Seventh Circuit felt was weak: “barebones—maybe so thin that it could have been dismissed without further ado.” The court was obligated to take the judge’s error as grounds for reversal.

Citing Williams v. Wahner, the Court did not “mince words” when declaring that the use of ex parte telephonic interrogation as a method of screening complaints to determine whether they state a claim is unlawful. The court said that 28 U.S.C. § 1915A(a), a screening provision similar to § 1915(e)(2), does not contemplate an oral examination of a party by the judge designed to elicit answers that will enable the judge to resolve contestable factual issues. “If the validity of a claim depends on the accuracy of the plaintiff’s factual allegations, and their accuracy can’t be resolved without an oral hearing, it is a matter to be resolved at trial, in conformity with the procedures that govern trials. . . We expect that when this court declares a procedure employed by a district judge, or district judges, of this circuit unlawful, the procedure will be abandoned. Regrettably, not all the district judges have abandoned it.”

If a judge needs additional information from a detainee to determine the merits of a lawsuit going forward, the judge can make a limited appointment of counsel specifically for the purpose of fact-finding and release the attorney after sufficient information has been gathered. That may only involve a single interview or even a telephone call, which would satisfy the judge’s need for information and uphold the lawfulness of the manner in which it was obtained. Inquisitions, however, are unlawful and viewed with prejudice by the Seventh Circuit.

Minimum Wage for Inmates?

By: Haley Holmberg
J.D. Candidate, 2017
Valparaiso University School of Law

The federal minimum wage provisions are contained in the Fair Labor Standards Act (FLSA), which set the federal minimum wage at $7.25 per hour. But are detainees and pretrial detainees able to receive minimum wage when they acquire jobs in jails or prisons? The Seventh Circuit Court of Appeals helps us to better understand the answer to that question and more while reviewing Smith v. Dart.

Smith was a pretrial detainee at the Cook County Jail. He brought this claim pro se in a civil rights action under 42 U.S.C. § 1983 alleging that Sheriff Thomas J. Dart violated his federal rights by paying him insufficient wages and subjecting him to inhumane working and living conditions. The trial court dismissed the claims as to his insufficient wages and working conditions on a preliminary review under 28 U.S.C. § 1951A. Dart moved to dismiss the remainder of the claims for failure to state a claim for relief under FRCP 12(b)(6), or alternatively for a more definite statement under rule 12(e) .

In response, Smith sent two letters to the court. The district court did not address the first letter, and it treated the second letter as a motion to introduce evidence, which the court denied. The district court then granted Dart’s motion to dismiss as uncontested and dismissed Smith’s complaint without prejudice. Smith was informed of the pleadings deficiencies and instructed to amend his complaint and resubmit it. Smith attempted to do so, but the court construed his attempt as a motion for reconsideration, which the court denied. The court gave him a second chance at amending his complaint and Smith, again, attempted to resubmit an amended complaint, but the court again construed this pleading as a motion for reconsideration, which was again denied. The court then dismissed the case with prejudice pursuant to FRCP 41(b).

Smith then appealed his case to the 7th Circuit which reassessed his complaint because pro se pleadings are to be held to “less stringent standards than formal pleadings drafted by lawyers.” The court found that the trial court should have considered the first letter that Smith wrote in response to Dart’s motion to dismiss as it clarifies Smith’s initial pleadings. The court held that, as Smith’s letter alleges that the jail food did not meet nutritional standards in accordance with regulations, the claim should not have been dismissed. The letter further clarifies that the jail water is contaminated and contains various pollutants, constituting allegations sufficient to state a claim upon which relief can be granted.

As to Smith’s work wages, the court held that the federal minimum wage set out by FSLA was intended to protect all employees in the free market, of which he was not a member. As the jail is responsible for providing him with his basic needs such as food, shelter, clothing, and medical care, his job in the jail helps to offset those living costs. In conclusion, the court reversed the district court’s decision with respect to his inadequate food and contaminated water claims and remanded for further proceedings on those aspects. The Seventh Circuit affirmed the dismissal of Smith’s other claims.

This case demonstrates the demand for the judicial system to allow pro se defendants to be given the benefit of the doubt. Further, it puts an emphases on the importance of the Courts to not reject a defendant’s petitions based on rules that even the most educated lawyers struggle to master. Before an individual decides to break a law which may be punishable by jail or prison time, you may want to think twice. If being behind bars is not enough of a deterrent, an individual will be additionally be required to pay numerous fines, attorney’s fees, and may also be subject to less than desirable living conditions and very little—if any—pay for work.

Retaliation Claim for Workplace Discrimination

Retaliation road sign

By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

Eric Harden sued the Marion County Sherriff Department for retaliation under title Title VII of The Civil Rights Act of 1964. Harden alleged that the Department fired him in retaliation for testifying on behalf of African-American police officers in a race discrimination investigation.  The Court reviewed two issues: evidentiary and retaliation.

A witness accused Lt. Frasier of stealing money from a man Harden arrested. The Department argues that the summary judgment motion  relied on inadmissible hearsay.  Harden wanted to offer the statement of the witness to prove that the Department was aware of—and ignored—another suspect. The evidence offered did not warrant the decision even if the statement was considered.

Title VII  prohibits employers from retaliating against employees from testifying, assisting, or participating in a race discrimination investigation. Retaliation may be established by either direct or indirect methods of proof. The Court limited their inquiry to whether Harden has presented sufficient evidence that his protected activity was a substantial and motivating factor in Harden’s eventual termination.

The plaintiff sought damages against the defendant for retaliation. Therefore, Harden had the burden of proving each of the following elements by a preponderance of the evidence:

  1. The plaintiff engaged in or was engaging in an activity protected under federal law, that is known as activity;
  2. The employer subjected the plaintiff to an adverse employment action, that is known as adverse employment action; and
  3. The plaintiff was subjected to the adverse employment action because of his participation in protected activity.

The defendants conceded the first two elements. This left Harden with the burden establishing that the discrimination that he suffered was caused as a result of the protected activity; meaning, the employer action was at least, in part, motivated by the employee engaging in protected activity.

Harden had to rely on circumstantial evidence to satisfy the element, or a a casual link between his protected activity and the adverse action. There are three categories that go into circumstantial evidence: suspicious timing, ambiguous statements, and other information from which an inference of retaliation intent might be drawn.

Harden offered no evidence that proved that his termination happened at a suspicious time. Harden, next, offered evidence to show a continuous pattern of harassment. The evidence included Lt and the Deputy encouraging workers to discipline Harden for no reason. Even though Harden introduced this evidence, a link between the evidence and his termination was missing.

Harden alleges that the Internal Affairs investigation was unworthy of credence. The investigation concluded that Harden was, ultimately, responsible for the theft. The court did not evaluate whether the stated reasons were inaccurate, but whether the employer honestly believed the reason it has offered to explain the discharge. The investigation consisted of more people being suspected other than Harden. There was a thorough investigation and the investigation offered a legitimate explanation for their conclusion that Harden was the thief.

The Seven Circuit ruled that there was not enough evidence to suggest that the Internal Affairs investigation was a sham or that the relevant decision makers at the Department did not legitimately rely on the investigators’ conclusion in terminating him. Harden argued that he immediately became the primary suspect and the department, which ignored the accusation of another officer. The Court found that there was no evidence in the person who heard the accusation told the investigators during the interview. Because no reasonable jury could find that the Internal Affairs investigation was pretextual, the District court’s ruling was affirmed. Therefore, summary judgment was granted in favor of the Department.

Inconsistent Story Brings Nothing But Trouble and a Frivolous Law Suit

Old_AVIS_Car_Rental_advert

By: Jeremy M. Schmidt
J.D. Candidate, 2017
Valparaiso University School of Law

The Seventh Circuit decided on Afram Boutros v. Avis Rent A Car System, LLC, which serves as an important reminder for all attorneys to carry out their due diligence before filing a suit (or appeal), because they could be sanctioned for filing a frivolous suit or appeal.

Afram Boutros (Boutros) worked for Avis Rent a Car System (Avis) as a courtesy bus driver at the company’s O’Hare Airport location. In May, 2008, Boutros informed a shift manager that a fire extinguisher inexplicably discharged next to the drivers seat of the bus he was driving. Boutros claimed that a passenger had knocked it over, even though it was found there were no passengers aboard. The shift manager told him to take the bus to the mechanic’s area to have them clean the bus, and that if there was no mechanic available to take the bus out of service. The shift manager concluded by instructing Boutros to use a different bus to finish his shift.

During the same shift, Boutros told another shift manager what happened, and the shift manager told him to do the same as the first shift manager instructed. However, Boutros stated that the fire extinguisher fell by itself, and was not knocked over by a passenger this time. Secondly, he stated that the fire extinguisher sprayed him on his pants and his face. Finally, Boutros said that he cleaned the bus by himself because there were no mechanics available.

Avis offered medical assistance to Boutros the night the incident occurred. Boutros declined. The next day Boutros requested immediate medical assistance so Avis sent him to a local clinic. Boutros ended up in an emergency room because he claimed the clinic doctors sent him there with concerns about cancer caused by the chemicals used in making fire extinguishers. It turned out that there were no cancer concerns and the doctors at the clinic did not tell Boutros to go to an emergency room.

Avis launched an investigation into this incident. Avis interviewed both shift managers that Boutros discussed the incident with. Avis also had the fire extinguisher inspected and it was determined that only 5.5 oz were discharged, which conflicted with Boutros claim that a lot was discharged from the fire extinguisher. Avis determined that there were multiple mechanics available at the time to clean the bus, and that Boutros should have never cleaned it himself. Avis concluded the investigation with firing Boutros for dishonesty and insubordination.

Boutros filed suit alleging that he was fired for his race, which violates Title VII. At the end of the trial, the jury found for Avis on all claims. Boutros fired his attorney, and then hired an attorney who filed the appeal with the seventh circuit. Avis asked the seventh circuit to dismiss the appeal because it was frivolous. The seventh circuit declined to dismiss a case on a procedural error, but instead would rather decide a case on its merits.

Boutros claimed that the lower court erred in the limiting instructions to the jury. The seventh circuit found that there was no error because Boutros agreed to the instructions. Finally, Boutros claimed that the lower court erred in not allowing his motion for a new trial to succeed. The seventh circuit found no error here because this case was found to be frivolous on appeal.

The seventh circuit concluded that the lower court did not error in any of the  rulings during trial, and did not error on any of the post trial motions as well. Additionally, the seventh circuit invoked Rule 38 which requires attorneys show good cause in why sanctions should not be issued for filing a frivolous appeal.

A Miscarriage of Justice

By: Haley Holmberg
J.D. Candidate, 2017
Valparaiso University School of Law

Nobody is perfect. Mistakes happen to the very best of us, including judges. This is precisely why our justice system has a procedure of checks and balances set in place to prevent injustice to the best of its ability. Recently, the Seventh Circuit Court of Appeals dealt with a mistake made by both the defense counsel and trial judge in Reyes v. Dart.

A Cook County Jail pre-trial detainee was attacked and stabbed as a guard stood ten to fifteen feet away and ignored his cries for help. The detainee eventually lost consciousness which was not regained until three days later in the hospital. The attack caused severe nerve damage and a fractured eye socket which may eventually lead to blindness.

The victim-detainee filed suit against the Cook County Sheriff, Thomas Dart, and two of the jail officials claiming they failed to protect him from the attack. He contends that the defendants have culpably failed to create or enforce policies necessary to protect such attacks from occurring.  After filing an answer to the complaint, the next six months entailed the defense lawyer sending a total of five letters to the plaintiff. Each letter demanded the plaintiff sign a release giving the defense counsel access to protected health information maintained by a variety of hospitals. The release was not limited to medical records surrounding the attack that occurred, but rather all medical records would have been accessible from birth forward. Further, the release did not impose limitations on to whom the information could be disclosed.

The letters advised that it was entirely the plaintiff’s decision to sign the release or not, however, failure to sign would be grounds for dismissal of the case because the claim was for physical injuries. Naturally, the plaintiff did not sign the release for medical records. After the fifth letter of release was not replied to, defense counsel moved for dismissal under Federal Rules of Civil Procedure 41(b). The district court dismissed the suit with prejudice.

The Seventh Circuit ruled that the district judge erred in dismissing under 41(b) because there was no failure to comply with any rule or any court order. Nor was the plaintiff’s refusal to sign the release a failure to prosecute the suit. The defense counsel’s dispute with the plaintiff over the medical records was merely a discovery dispute and should have been dealt with as such by filing a motion to compel under Fed. R. Civ. P. 37. As the claim involved physical injuries, an order requiring the plaintiff to submit to a medical examination could have been filed under Fed. R. Civ. P. 35.

Another reason the case should not have been dismissed was because the release specifically stated that the signer may revoke authorization to release of his medical records at any time, which would have empower the plaintiff to refuse to sign in the first place without being punished. For the aforementioned reasons, the Court vacated and remanded the case. Judge Posner instructed the lower court to rule on the plaintiff’s prior motion for recruitment of counsel and inform the defendants’ counsel that the civil rule applicable to his demand for medical records is rule 37, not rule 41(b).

The defense counsel may have been quick to get the case dismissed, however, the counsel’s lack of knowledge concerning the Federal Rules of Civil Procedure only led to the case coming back to haunt him after Judge Posner issued the Seventh Circuit Court of Appeals opinion.

Coming Back to Bite You: Immunity for Expert Witnesses

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By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

Can teeth marks on a body come back and bite you for falsifying your opinion during trial? The Seventh Circuit Court of Appeal issued an opinion explaining the immunity for expert witnesses. In Stinson v. Gauger, the court reviewed a case where an expert’s opinion resulted in a man being wrongly accused and sentenced for murder. Judge Sykes wrote the Opinion for a three-judge panel.

Robert Lee Stinson spent 23 years in prison for a murder that he did not commit. He was exonerated by DNA evidence. Stinson alleges that the two odontologists—key witnesses for the prosecution—fabricated their opinion. Stinson burger alleges that the detective in the case—Mr. Gauger—put them up to it and collectively the three suppressed evidence of the fabrication in violation of his due process of law.

The bite marks found on the victim showed that her killer had one missing tooth in the upper right lateral incisor and a twisted tooth in the same area. Stinson’s dental records were similar to those of the killer’s, but did not actually match. Stinson was missing his front right central incisor and had a damaged tooth, which resembled the killer’s dental records. Nonetheless, Dr. Raymond and Dr. Johnson testified that the bite marks on the victim implicated Stinson.

The Court examined three issues: 1) Appellate Jurisdiction;  2) Absolute Immunity; and 3) Qualified Immunity.  Did the appeal raise a question of law about historical facts? An order denying summary judgment usually lacks the finality required for appellate jurisdiction, but orders denying claims of immunity from suits are an exception. The odontologist and Gauger accepted Stinson’s version of historical facts, but they argued that the facts do not amount to violation of a constitutional right. As a result of this case being a legal question of a qualified-immunity claim, the district court order qualified for immediate appeal.

A witness has absolute immunity from suits on claims from their testimony at trial and from the preparation to testify at trial. Misconduct committed while investigating the case is not qualified for absolute immunity. Even if the doctors falsely testified at trial, they cannot be sued solely on that testimony in a civil suit. Stinson accused the odontologist of fabricating their opinions during the investigation before probable cause existed. Based on the principles outlined in Buckley v. Fitzsimmons, absolute immunity does not apply to this alleged misconduct.

To be protected under qualified immunity, Stinson had to possess evidence that showed the odontologist’s conduct violated a constitutional right and the right was established at the time of their actions. Stinson alleged that his Fourteenth Amendment right was violated. Stinson believed the doctors and the detective conspired to frame him with fabricated evidence. In order to suffice this requirement, an expert has to know their information is wrong and still use the false information. The defendant’s expert at the initial trial failed to show that the information given was fabricated. Stinson’s own expert missed the errors that were later identified and, therefore, there was no suppression of evidence.

The Seven Circuit ruled that the defendants are not protected under absolute immunity because Stinson accused them of fabricating their opinion during the investigative phase, but they are entitled qualified immunity because they did not violate Stinson’s due process rights by fabricating their opinions since there was not any showing that they intentionally fabricated their opinion, and the detective did not violate Stinson’s due process right and was also entitled to qualified immunity.

This case shows that witnesses should be held responsible for their testimonies and that all individuals—despite being accused of a crime—should be awarded the same protection as everyone else. Additionally, this case illustrates the demand for immunity to be granted to expert witnesses so they will feel free to tell the truth to the best of their overall knowledge without the threat of being sued for a mere mistake. However, one question remains with this type of interpretation: Would this allow experts to say what they want geared by their personal opinions?

Equalizing Administrative Remedies for Prisoners

By: Haley Holmberg
J.D. Candidate, 2017

Valparaiso University School of Law

Under 42 U.S.C. § 1997e(a), “no action shall be brought with respect to prison conditions until administrative remedies as are available are exhausted.” Recently, the 7th Circuit Court of Appeals reviewed White v. Bukowski to determine the outcome when a detainee does not follow protocol for reporting an abuse of a fundamental right–or at the very least, a right protected under statute regarding prison regulations.

When Wenona White arrive at jail for pre-trial detention on alleged conspiracy to commit bank fraud, she was almost eight months pregnant. Eleven days later, she experienced labor pains and was taken by ambulance to the hospital, where she delivered a daughter with severe birth defects. She was returned to the jail several days after giving birth, and was transferred to another jail four days later while she awaited trial. Two years later, she filed suit alleging that her child’s birth defects were caused by failure to take a proper medical history when she arrived at the jail (which would have revealed the complications in birth); failure to respond to her repeated medical requests; and failure to react quickly when she was in labor. The trial court dismissed White’s claim based on her failure to seek administrative remedies prior to filing suit.

However, White claimed there were no administrative remedies available to her in this case. Grievances are filed to obtain a change of some sort within the jail and to allow the jail time to address the issues. Even in cases where the harm has already occurred, a grievance must be filed or the detainee loses the right to sue. However, there is no administrative remedy to exhaust where the relevant administrative procedure provides no remedy. White was not aware while being held in the first jail that she was receiving inadequate health care, which contributed to her child’s birth defects. Therefore, it was not possible for her to file a grievance before the harm occurred. Further, according to the jail’s inmate handbook, there was no deadline for filing a grievance. Moreover, White was not aware that she would be transferred from the first jail at which she was being detained shortly after returning from the hospital.

The 7th Circuit Court of Appeals agreed with White that she could not be faulted for having not filed a grievance when no deadline existed, and when she had no knowledge that she was to be transferred from the jail. After she was transferred, it was too late to file her grievance, as the jail would not entertain a grievance by an individual no longer being detained in that jail. The Court held for these reasons that the judgment must be vacated and remanded.

Although a detainee’s rights and freedoms are extremely limited compared to other citizens, it is unethical to deny an individual a granted right based on circumstances beyond her control. This ruling will help ensure that all prisoners are given equal opportunity to be heard in court despite administrative procedures of the jail limiting such right and failing to offer relief to address the issue under such conditions.

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