Carrillo v. Cnty. of L.A., s. 12–57229

• Citation: 798 F.3d 1210
• Decision Date: 26 August 2015
• Docket Number: 13–56817.,Nos. 12–57229,s. 12–57229
• Parties: Francisco CARRILLO, Jr., Plaintiff–Appellee, v. COUNTY OF LOS ANGELES; Craig Ditsch, Defendants–Appellants. Frank O'Connell ; Nicholas O'Connell, Plaintiffs–Appellees, v. J.D. Smith; Eric Parra; County of Los Angeles, Defendants–Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

798 F.3d 1210

Francisco CARRILLO, Jr., Plaintiff–Appellee

v.COUNTY OF LOS ANGELES;

Craig Ditsch, Defendants–Appellants.

Frank O'Connell ;

Nicholas O'Connell, Plaintiffs–Appelleesv.J.D. Smith;

Eric Parra;

County of Los Angeles, Defendants–Appellants.

Nos. 12–57229

13–56817.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 4, 2015—Pasadena, California.^*

Filed Aug. 26, 2015.

Paul B. Beach, Michael D. Allen (argued), George E. Morris Jr., Lawrence Beach Allen & Choi, PC, Glendale, CA, for Defendants–Appellants J.D. Smith and Eric Parra.

David D. Lawrence, Jin S. Choi (argued), Lawrence Beach Allen & Choi, PC, Glendale, CA, for Defendant–Appellant Craig Ditsch.

Barrett S. Litt (argued), Lindsay B. Battles, Kaye, McLane, Bednarski & Litt, LLP, Pasadena, CA, for Plaintiffs–Appellees Frank and Nicholas O'Connell.

Ronald O. Kaye, Marilyn E. Bednarski, Caitlin S. Weisberg, Barrett S. Litt (argued), Kaye, McLane, Bednarski & Litt, LLP, Pasadena, CA, for Plaintiff–Appellee Francisco Carrillo, Jr.

Appeal from the United States District Court for the Central District of California, Stephen V. Wilson, District Judge, Presiding. D.C. No. 2:11–cv–10310–SVW–AGR.

Appeal from the United States District Court for the Central District of California, Stephen V. Wilson, District Judge, Presiding. D.C. No. 2:11–cv–10310–SVW–AGR.

Before: RAYMOND C. FISHER, JAY S. BYBEE and CARLOS T. BEA, Circuit Judges.

OPINION

FISHER, Circuit Judge:

Frank O'Connell and Francisco Carrillo were wrongfully imprisoned for decades before eventually securing habeas relief. After release, they separately brought suit under 42 U.S.C. § 1983 in federal district court against the police investigators involved in their respective cases, arguing in part the officers failed to disclose evidence that would have cast serious doubt on the testimony of key prosecution witnesses.¹ The defendant officers asserted qualified immunity, arguing the law at the time of the investigations did not clearly establish the duty of police officers to disclose material, exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court denied judgment on the pleadings in O'Connell's case and summary judgment in Carrillo's case, concluding the officers' duty to disclose Brady evidence was clearly established at the time of the investigations. The officers challenge these determinations on appeal.²

We conclude, first, that the law at the time of the investigations clearly established that police officers had to disclose material, exculpatory evidence under Brady, and second, that any reasonable officer would have understood that Brady required the disclosure of the specific evidence allegedly withheld. We therefore affirm the denials of qualified immunity and remand these cases to the district court for further proceedings.

BACKGROUND ³

I. O'Connell

In January 1984, Jay French was murdered in the parking lot of his apartment building. Los Angeles County Sheriff's Department (LASD) homicide detectives J.D. Smith and Gilbert Parra were responsible for investigating the murder. Smith and Parra discovered French was in a heated battle over the custody of his children with his ex-wife, Jeanne Lyon, and that Lyon had called French's home on the morning of the murder. During their investigation, the officers discovered Lyon had been romantically involved with Frank O'Connell the previous summer. The eyewitness descriptions of the killer matched O'Connell, and he was ultimately charged with French's murder. The case proceeded to a bench trial.

At trial, the prosecution introduced evidence that French had shouted, as he lay dying, that “that fucker in the yellow Pinto shot me,” and that “he was going to have to die and it had something to do with Jeanne [Lyon], it looked like somebody she hangs around with or somebody she hung around with.”⁴ Through the testimony of several witnesses, including Daniel Druecker, Alec Sanchez, Arturo Villareal and Maurice Soucy, the prosecution pinned the crime to O'Connell.

Druecker, who lived in French's apartment building, was the only witness to the shooting itself. At trial, he described the shooter as a tall Caucasian man in his thirties with brown shoulder-length hair. He identified O'Connell as the killer at trial and testified he had selected O'Connell from a photo lineup shown to him by the officers.

Sanchez, a flagman in the area, reported and later testified he had witnessed a yellow Pinto station wagon with faded wooden sides fleeing the scene of the crime. He described the driver as a woman with blond hair and her companion as a white male with long curly brown hair. He was unable to identify O'Connell or anyone else as the passenger in the car.

Villareal, a deliveryman, also saw the shooter leave the scene of the crime in a Pinto. He testified that, when the investigators showed him a photo lineup, he selected two photos and told the officers he “couldn't be positive” which was the shooter. He also testified he could not identify O'Connell as the person he saw the day of the murder. Detective Smith countered this testimony, testifying Villareal had chosen only one photo from the lineup. He read from a police report that represented Villareal as remarking that O'Connell was “the strongest contender, and I'm sure that's him.”

Finally, Soucy, a neighbor of Lyon's, testified. Soucy recalled seeing a tall white man who drove a yellow Pinto in his apartment complex on several occasions. Soucy further testified he had seen the man who drove the Pinto kissing Lyon, and that he had seen the car parked near Lyon's apartment on several occasions. He identified O'Connell in court as the man he had seen driving the Pinto.

O'Connell was convicted of murder following his bench trial. Over 20 years later, he filed a state habeas petition, alleging in part that the investigating officers failed to disclose material, exculpatory evidence that would have undermined the witnesses' trial testimony and cast suspicion on an alternative suspect.

At an evidentiary hearing on O'Connell's habeas petition, Druecker testified, offering information that would have significantly undercut his identification of O'Connell at trial. He recalled he had been working on his car on the day French was shot and was not wearing contacts or glasses, which he generally needed because he was nearsighted. He was leaning into the driver's side of his car when he heard a loud “pop,” which he thought was a firecracker. He got out of the car to see French running and screaming that he had been shot. A man immediately behind French stopped, raised a gun and pointed it, when Druecker heard another bang. Druecker ducked behind a car. As a result, he saw the shooter only in left profile and described him as tall, with long, dark hair and carrying a long-barreled gun. Because Druecker had never seen a gun, he was focused on the weapon.

An officer on the scene asked whether Druecker had seen anything. Druecker said he thought he could identify the shooter but was not certain. Two officers (later identified as Smith and Parra) came to Druecker's apartment to ask for a description of the shooter. Druecker told them he could not remember what the shooter looked like and asked if the officers could put him under hypnosis, which they refused to do. He testified the officers “kept calling him,” and eventually came back on their own one morning with photos of six men. Druecker took this as an indication that they must have found the shooter. He told the officers he had seen only the shooter's profile and asked if they had profile photos. He also remarked to them that every photo depicted a man with a mustache but that he did not remember the shooter having a mustache.

Even though Druecker told the officers he did not recognize any of the men depicted in the photos, they told him to “really look” at the photos. Feeling he had to select one of the photos, and believing the officers already knew who the shooter was, he pointed to photo three (which depicted O'Connell) and asked, “Is this the guy?” The officers asked if this was the person he was identifying as the shooter. Thinking the officers already knew who the shooter was, Druecker responded, “I think that's the guy.” The officers told him he had to be certain. He said he was sure, but at the evidentiary hearing on O'Connell's habeas petition, he testified that he only did so out of intimidation. In truth, he did not recognize the photo but was simply guessing. Druecker explained he did not disclose this uncertainty either during the preliminary hearing or at trial because he was afraid and believed, based on his interactions with the officers, that he had identified the correct person.

During the habeas proceeding, O'Connell discovered a copy of the officers' handwritten notes detailing their interview with Maurice Soucy. In the official police report, which was disclosed, the officers had written that when shown the photo lineup, Soucy “immediately pointed out photograph number three. He stated that was the person who asked him to jump start the yellow Pinto, and was also the same person he had seen hugging and kissing Jeanne Lyon.” But in the handwritten notes, which were never provided to the prosecutors or the defense, the officers had written that Soucy identified “# 3 & poss. # 1” and “picked out # 3 as poss. suspect because of face but hair was curlier.”⁵ Immediately following that statement, they noted the name “Maurice.”⁶ These notes were never turned over to the prosecution or defense.

O'Connell also discovered another set of handwritten notes revealing a possible alternative suspect to the crime. The prosecution contended French's dying declaration, in which he shouted the killer was someone Jeanne “hung around with,” pointed solely to O'Connell, who had been romantically linked to Lyon. But other notes taken by the officers during an interview with a former attorney of French's revealed Lyon,...