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Spencer v. Peters

United States Court of Appeals, Ninth Circuit

May 18, 2017

Clyde Raymond Spencer, Plaintiff-Appellant/ Cross-Appellee,
James M. Peters, Defendant, and Sharon Krause, Detective (Clark County); Michael Davidson, Sergeant (Clark County), Defendants-Appellees/ Cross-Appellants.

          Argued and Submitted March 9, 2017 Seattle, Washington

         Appeals 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 Plaintiff-Appellant/Cross-Appellee.

          Jeffrey A.O. Freimund (argued), Freimund Jackson & Tardif PLLC, Olympia, Washington, for Defendant-Appellee/Cross-Appellant Michael Davidson.

          Guy M. 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.


         Civil Rights

         The 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.

         Plaintiff 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.

         The 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.

         The 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.

         In this 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.


         Plaintiff 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, Washington.

         After 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.

         In the 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


         Sacramento 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.

         Detective 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.

         In 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 December 1984.

         Plaintiff, 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.[2] 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 obtained.

         In 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.

         Krause 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.

         In late 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.

         In 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 investigation.

         On the 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 ...

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