and Submitted March 9, 2017 Seattle, Washington
from the United States District Court for the Western
District of Washington D.C. No. 3:11-cv-05424-BHS Benjamin H.
Settle, District Judge, Presiding
Kathleen Zellner (argued), Kathleen T. Zellner &
Associates P.C., Downers Grove, Illinois, for
Jeffrey A.O. Freimund (argued), Freimund Jackson & Tardif
PLLC, Olympia, Washington, for
Defendant-Appellee/Cross-Appellant Michael Davidson.
Bogdanovich (argued), Law Lyman Daniel Kamerrer &
Bogdanovich, Olympia, Washington, for
Defendant-Appellee/Cross-Appellant Sharon Krause.
Before: Susan P. Graber, Sandra S. Ikuta, and Andrew D.
Hurwitz, Circuit Judges.
panel reversed the district court's judgment as a matter
of law and remanded with instructions to reinstate a jury
verdict in a 42 U.S.C. § 1983 action in which plaintiff
alleged that a Clark County detective deliberately fabricated
evidence against him and continued her criminal investigation
despite knowing that plaintiff was innocent.
alleged that defendant deliberately mischaracterized witness
statements in her investigative reports. As a result,
plaintiff testified that he entered a plea pursuant to
Carolina v. Alford, 500 U.S. 25, 37-38 (1970),
causing him to spend nearly twenty years in prison. A jury
found for plaintiff, but the district court granted judgment
as a matter of law to defendants on the grounds that
plaintiff failed to introduce evidence that defendant knew or
should have known of plaintiff's innocence.
panel held that because plaintiff introduced direct evidence
of fabrication, he did not have to prove that defendant knew
or should have known he was innocent. Addressing
defendant's cross-appeal, the panel held that ample
evidence in the record supported the jury's finding on
causation and given the jury's finding on causation and
all other elements, the district court did not err by not
separately instructing the jury on "but for"
causation and "proximate" causation. The panel
further held that the district court did not err by declining
to instruct the jury that plaintiff was required to prove,
that setting aside the fabricated evidence, probable cause
was lacking. Finally, the panel held that the district court
did not err by giving a deliberate indifference instruction
and by permitting plaintiff to introduce certain evidence.
GRABER, Circuit Judge.
Fourteenth Amendment prohibits the deliberate fabrication of
evidence by a state official. Devereaux v. Abbey,
263 F.3d 1070, 1074-75 (9th Cir. 2001) (en banc). Deliberate
fabrication can be established by circumstantial evidence.
For example, evidence that officials "continued their
investigation of [a person] despite the fact that they knew
or should have known that he was innocent, id. at
1076, can raise the inference that the investigator has an
"unlawful motivation" to frame an innocent person.
Costanich v. Dep't of Soc. & Health Servs.,
627 F.3d 1101, 1111 (9th Cir. 2010). Or deliberate
fabrication can be shown by direct evidence, for example,
when "an interviewer . . . deliberately mischaracterizes
witness statements in her investigative report."
Id. In cases involving direct evidence, the
investigator's knowledge or reason to know of the
plaintiff's innocence need not be proved. Id.
42 U.S.C. § 1983 action, Plaintiff Clyde Raymond Spencer
introduced direct evidence of deliberate fabrication,
specifically, evidence that Clark County Sheriff's Office
Detective Sharon Krause deliberately mischaracterized
witnesses' statements in her investigative reports. A
jury found for Plaintiff and against Defendants Krause and
Sergeant Michael Davidson, Krause's supervisor. But the
district court granted judgment as a matter of law to
Defendants, on the ground that Plaintiff had failed to
introduce evidence that Krause knew or should have known of
Plaintiff's innocence. Because the district court
misunderstood our precedent, and because Defendants'
other challenges to the jury's verdict fail, we reverse
and remand with instructions to enter judgment for Plaintiff
consistent with the jury's verdict.
AND PROCEDURAL HISTORY
and his first wife, DeAnne Spencer, had two children, Matthew
and Kathryn. After a divorce, DeAnne retained primary custody
of the children in Sacramento, California, and the children
visited Plaintiff several times a year near Vancouver,
Plaintiff and DeAnne separated, Plaintiff lived with Karen
Stone for about two years. Matthew and Kathryn visited
Plaintiff for extended periods during that time, and they got
to know Stone. In 1983, Plaintiff married his second wife,
Shirley Spencer. Shirley's son from a previous
relationship, Matthew Hansen ("Hansen"), therefore
became Plaintiff's stepson. Plaintiff, Shirley, and
Hansen lived together in the Vancouver area.
summer of 1984, Matthew and Kathryn visited Plaintiff for a
six-week stay ending on Sunday, August 26, 1984. Matthew was
8; Kathryn was 5; and Hansen was 4. On the final weekend of
the stay, Kathryn allegedly disclosed to Shirley that she had
been sexually abused, including acts of vaginal and oral sex,
by four people: her father (Plaintiff), her mother (DeAnne),
her father's previous girlfriend (Stone), and her
eight-year-old brother (Matthew). Alarmed, Plaintiff and
Shirley reported Kathryn's statements to Child Protective
Services. Investigations began in California and in
Detective Pat Flood contacted Plaintiff and Shirley, who
recounted Kathryn's statements. Detective Flood then
visited DeAnne, who denied any sexual abuse and any knowledge
of the allegations against others. She later passed a
polygraph examination, and Detective Flood terminated the
investigation of DeAnne.
Flood also talked with Matthew and Kathryn, who had recently
returned from Vancouver. Matthew denied any knowledge of the
allegations and denied any sexual abuse. Kathryn was
"extremely shy, " according to Detective
Flood's contemporaneous report. (Detective Flood died
before the trial in this case and therefore did not testify.)
The report stated that Kathryn "indicated that she did
tell Shirley everything that Shirley advised me of but then
when asked to explain it or asked specific questions about
it, she would say that she couldn't remember the words so
she couldn't tell me." Kathryn gave conflicting
responses to questions asking whether anyone had touched her
inappropriately. DeAnne took Kathryn for a medical exam; the
examining doctor found no physical evidence of sexual abuse.
Washington, Krause investigated Stone (Plaintiff's former
girlfriend) and Plaintiff. Stone denied ever abusing Kathryn,
and she agreed to take a polygraph test. Although Krause made
eight attempts to schedule a polygraph test, Stone never took
one. Krause nevertheless ended the investigation of Stone in
too, denied abusing Kathryn, and he also agreed to take a
polygraph test. On September 21, 1984, Plaintiff-accompanied
by Shirley-took a polygraph test at the Sheriff's
Office. The results of the polygraph were
inconclusive, so Plaintiff agreed to a second polygraph test
a few days later. The examiner's report of the results of
the second test suggested deception, but not very strongly:
The subject demonstrated consistently greater physiologic
responses on the three critical questions . . . as compared
to the control items. While this was sufficient to be
indicative of deception, . . . Spencer's scores were not
very high so that the examiner does not feel as certain about
the validity of these findings as in most examinations.
Hopefully, further corroboration of these results will be
mid-October 1984, Krause traveled to Sacramento to continue
the investigation. During that trip, she interviewed Matthew,
DeAnne, two of DeAnne's sisters, and DeAnne's mother,
all of whom denied any knowledge of sexual abuse of Kathryn
by anyone. Krause prepared investigative reports of those
interviews, including a report attributing many quotations to
Matthew. During the trial in this case, Matthew testified
that many of those quotations were fabricated-in particular,
statements that incorrectly portrayed Matthew as comfortable
with Krause and incorrectly portrayed Matthew as generally
aware of the allegations of sexual abuse.
also interviewed Kathryn twice. The interviews took place
almost entirely in Krause's motel room and her rental
car, without anyone else present. Krause's
contemporaneous investigative reports claim that Kathryn
described, in great detail, sexual abuse by Plaintiff. The
reports contain scores of specific, explicit quotations
attributed to Kathryn. At trial, however, Kathryn testified
that, other than some trivial quotations unrelated to sexual
abuse, all the quotations were fabrications. Kathryn
testified that, in fact, she denied to Krause that anyone had
sexually abused her.
November 1984, a prosecutor from King County, Washington,
reviewed the investigative file at the request of the Clark
County Sheriff's Office. The prosecutor concluded that
the case was "legally insufficient" for several
reasons. First, Kathryn appeared to be "extremely
reluctant to talk about facts, " and Kathryn's
failure to disclose the abuse to her counselor did "not
bode well for testifying in court." Second, the fact
that Kathryn identified "multiple suspects is very
disturbing, " because it suggested a lack of
credibility. Third, there were inconsistencies "over all
issues": the number of times abuse occurred, what
Plaintiff was wearing, and what Kathryn was wearing. Fourth,
certain details commonly reported by victims of sexual abuse
were lacking from Kathryn's account.
early December 1984, a Clark County prosecutor, Jim Peters,
conducted a videotaped interview of Kathryn. According to
Peters, the purpose was to find out "whether she could
tell me the story of what happened and whether I thought she
might be competent"; it was not an investigative
interview. For that reason, Peters was not concerned about
using techniques-such as coaching or suggestive
questioning-that would be improper if used during an
videotape, which was played for the jury, Kathryn appeared
very uncomfortable during the entire 45-minute initial
interview. Very early on, she asked Krause to leave the room,
even though Krause's investigative reports portrayed
Kathryn as extremely comfortable with her. Kathryn was unable
to describe Plaintiff's alleged conduct-until after an
hour-long break. After the break, in a 10-minute follow-up
interview, Kathryn described various acts of sexual abuse by
Plaintiff. Kathryn testified at trial in this case that,
during the ...