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Spencer v. Peters

United States District Court, W.D. Washington, Tacoma

August 13, 2014

JAMES M. PETERS, et al., Defendants.


BENJAMIN H. SETTLE, District Judge.

The fabrication of inculpatory evidence and/or suppression of exculpatory evidence is abhorrent, reprehensible, and "only a rapscallion in official raiment would do such a thing." Devereaux v. Abbey, 263 F.3d 1070, 1082 (9th Cir. 2001) (Fernandez, J., concurring). The jury concluded that such actions occurred during the investigation and prosecution of Clyde Ray Spencer ("Spencer"), but such conduct alone does not establish a constitutional violation. Under binding precedent, Spencer was required to show more and the evidence was insufficient to establish a violation of his constitutional rights.

This matter comes before the Court on Defendants Michael Davidson ("Davidson") and Sharon Krause's ("Krause") motion for judgment as a matter of law or, in the alternative, motion for a new trial (Dkt. 290), the Court's order denying the motion in part (Dkt. 316), and the parties' response to the Court's request for additional briefing. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the remaining portions of the motion for the reasons stated herein.


On March 3, 3014, Krause and Davidson filed a motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b) or, in the alternative, a motion for a new trial pursuant to Fed.R.Civ.P. 59(a)(1)(A). Dkt. 290. On May 28, 2014, the Court denied the motion in part and requested additional briefing on the remaining issues.[1] Dkt. 316. On June 13, 2014, both parties filed responses. Dkts. 335 & 336. On June 27, 2014, both parties filed replies. Dkts. 337 & 338.


In the prior order the Court requested additional briefing on certain specific issues, which were as follows: (1) the legal framework under Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001), (2) "any evidence of innocence or inculpatory evidence that could not have reasonably been believed at the time Krause fabricated evidence, " (3) whether the Court erred in giving moving force causation instructions, and (4) if the Court erred, whether the error was harmless. Dkt. 316.

A. Devereaux

"[T]here is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government." Devereaux, 263 F.3d 1074-1075. If the Devereaux court stopped at this point, the question in this case would most likely be whether Spencer was subjected to criminal charges based on evidence deliberately fabricated by Krause. See, e.g., Winslow v. Smith, 696 F.3d 716, 735 (8th Cir. 2012) ("because there is evidence Defendants used false evidence to secure a conviction, Plaintiffs have sufficiently supported a cognizable due process claim."). Under the Winslow standard, it appears that one may weigh all of the evidence in the government's possession and consider the question of whether the plaintiff was subjected to criminal charges based on the fabricated evidence or even wrongfully convicted because of fabricated evidence. For example, in order to determine whether a constitutional violation occurred, the jury could weigh the vast amount of allegedly fabricated and hidden evidence against Spencer's statement when he was arrested that "I must have done it if Little Matt said I did, this can't be my ex-wife this time" ( see Trial Exhs. 8, A-18, A-22) as well as Spencer's statements to Defendants, his defense attorney, his psychologist Kevin McGovern ( see Trial Exhs. A-16, A-17), and the judge who presided over his change of plea hearing and sentencing to the effect that he could not remember if he had committed the crimes. This, however, is not the binding precedent that this Court must apply.

In Devereaux, the Ninth Circuit held that, in addition to fabricated evidence, the plaintiff must also show that "Defendants continued their investigation of [plaintiff] despite the fact that they knew or should have known that [plaintiff] was innocent...." Devereaux, 263 F.3d 1076.[2] Under the Devereaux standard, Krause not only had to fabricate evidence against Spencer, but also, at some point in time, must have continued her investigation despite the fact that she knew or should have known Spencer was innocent. The Court allowed the parties an opportunity to identify that particular point in time, as well as what evidence supported Krause's actual or constructive knowledge of Spencer's innocence.

With regard to actual knowledge of innocence, the Court stated that the "amount of inculpatory and inconclusive evidence presented at trial shows that fabrication was done to strengthen an initially weak case against Spencer." Dkt. 316 at 11. This statement was based on the fact that no single piece of evidence established that Kathryn Spencer was never sexually abused in any manner. While the medical evidence may have "confirmed no physical finding of abuse" (Dkt. 335 at 45), the reports did not, and could not, rule out any and all criminal activity. Therefore, without such exculpatory evidence, the Court concludes that it would be unreasonable for a juror to conclude that Krause had actual knowledge of Spencer's innocence.

With regard to constructive knowledge of innocence, Spencer argues that this issue is a credibility determination. Dkt. 335 at 1. The Court agrees to some extent because, as laid out in the previous order, the standard seems to be whether "[a]ny reasonable person in the investigators' position would have known better than to believe [the inculpatory evidence]." Devereaux v. Perez, 218 F.3d 1045, 1054 (9th Cir. 2000) (Kleinfeld, J., dissenting). The inculpatory evidence introduced at trial was, in part, as follows:

Shirley Spencer wrote a statement detailing Kathryn Spencer's unsolicited descriptions of sexual abuse by Spencer and others ( see Trial Exh. A-5);
Kathryn confirmed to Detective Flood with the Sacramento County Sheriff's Department that Kathryn told Shirley what Shirley had reported, and Kathryn shook her head "yes" when asked if someone had touched her "pee pee" and had told her not to tell, saying it was "daddy" who touched her "pee pee" and then moments later denying it was daddy (Trial Exh. 75); Spencer's two polygraph examinations regarding the allegations of abuse of Kathryn, the first of which was ...

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