Burke v. McDonald, 07-2691.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Citation572 F.3d 51
Docket NumberNo. 07-2692.,No. 07-2691.,07-2691.,07-2692.
PartiesEdmund F. BURKE, Plaintiff, Appellee/Cross-Appellant, v. Steven McDONALD, Defendant, Appellant/Cross-Appellee.
Decision Date17 July 2009
572 F.3d 51
Edmund F. BURKE, Plaintiff, Appellee/Cross-Appellant,
Steven McDONALD, Defendant, Appellant/Cross-Appellee.
No. 07-2691.
No. 07-2692.
United States Court of Appeals, First Circuit.
Heard May 5, 2009.
Decided July 17, 2009.

[572 F.3d 53]

Joseph P. Kitteredge, with whom Rafanelli & Kitteredge, P.C., Brian Rogal, and Rogal & Donnellan, P.C., were on brief, for appellant/cross-appellee.

Robert S. Sinsheimer, with whom Lauren Thomas and Denner Pellegrino, LLP, were on brief, for appellee/cross-appellant.

Before HOWARD, SELYA, and HANSEN,* Circuit Judges.

HOWARD, Circuit Judge.

In 1998, despite the fact that police had obtained DNA evidence excluding him as the perpetrator, Edmund Burke was arrested for murder and forced to spend a total of forty-two days in jail. Burke subsequently filed a civil rights lawsuit under 42 U.S.C. § 1983 against a panoply of those involved in the investigation of the crime, and after years of litigation, a federal jury found Massachusetts State Police Trooper (Tpr.) Steven McDonald liable for violating Burke's Fourth Amendment rights and awarded $400,000 in damages. After trial, the district court denied Tpr. McDonald's motions for judgment as a matter of law, a new trial, and remittitur. The court also awarded attorneys' fees to Burke, although it reduced the amount of the fees award from the requested $292,463.50 (plus expenses of $34,358.55) to $118,882.50 (plus expenses of $12,632.89) on the ground that Burke's success was "decidedly partial."1

Both parties now appeal decisions of the district court: Tpr. McDonald appeals the decision not to limit damages (and evidence thereof) to the period between arrest and arraignment; Burke, as cross-appellant, appeals the attorneys' fees reduction.

Discerning no errors in the district court's handling of the case on either matter, we affirm.

I. Background

A. The Factual Milieu

Because we had the opportunity to develop the factual context of this case in some depth when considering an appeal from the district court's prior entry of summary judgment for the defendants, see Burke v. Town of Walpole (Burke I), 405 F.3d 66 (1st Cir.2005) (vacating the district court's grant of summary judgment as to Burke's Fourth Amendment § 1983 claim against Tpr. McDonald, and affirming in

572 F.3d 54

all other respects), we will limit our factual exposition to a summary of the necessary details. Except where indicated, these facts are not in serious dispute for purposes of these appeals.

On December 1, 1998, Irene Kennedy, a 75-year-old woman, was the victim of a particularly grisly murder involving a severe beating, strangulation, and multiple stab wounds. The victim's breasts, which were exposed when her body was found in a wooded Walpole, Massachusetts park, each bore a human bite mark. The ensuing investigation into the crime included the collection of DNA samples in the form of saliva from the bite marks on the victim's body, and of saliva and other forensic samples from Burke, a suspect in the crime. Because Massachusetts did not at that time operate a facility capable of expedited DNA analysis of multiple-source samples, the samples were sent to the Maine Crime Laboratory for immediate analysis by Theresa Calicchio, a forensic DNA chemist.

Calicchio testified at the trial in this case that, on the morning of December 10, 1998, she called Tpr. McDonald and told him that the DNA analysis had excluded Burke as the source of DNA collected from the victim's body.2 Tpr. McDonald, however, failed to convey this information to his colleagues, this despite the fact that he successfully conveyed the findings of other non-DNA bite mark analyses that implicated Burke in the crime. As a result, a warrant application was filed that afternoon which omitted any mention of the DNA results, and an arrest warrant issued shortly thereafter.

Burke was arrested at his home that afternoon and detained overnight, prior to being arraigned in state court the next day. Shortly after the arraignment began, Tpr. Kevin Shea, Tpr. McDonald's colleague and co-investigator into the murder of Mrs. Kennedy, entered the courtroom and interrupted Assistant District Attorney (ADA) Gerald Pudolsky mid-argument. The facts surrounding this event are disputed. In essence, it is McDonald's and Shea's contention that McDonald called Shea and told him about the DNA exclusion of Burke, thereby leading Tpr. Shea to interrupt ADA Pudolsky. At trial, however, Burke marshaled evidence, discussed in detail below, suggesting that the results of the DNA test were never communicated from Tpr. McDonald to those responsible for prosecuting the arraignment hearing, or to the presiding magistrate.

In any event, it is undisputed that after Tpr. Shea interrupted the arraignment and spoke to ADA Pudolsky, ADA Pudolsky was left with the impression that "some evidence" had "come to light." He requested a recess, called his supervisors, and was told (he does not remember by whom) that "more testing" of the DNA was required before any definitive result could be obtained. ADA Pudolsky then sought and secured Burke's detention without bail. Burke spent the next forty-one

572 F.3d 55

days in custody until, after palm prints provided by Burke pursuant to court order revealed that Burke was not the source of a palm print on the victim's body, the district attorney filed a nolle prosequi in the case on the ground that Burke's prosecution was premature.

B. The Instant Litigation

Burke subsequently filed a civil rights action in state court against the Town of Walpole, the dentist who provided the non-DNA bite mark analysis, and various officers and supervisors of the Walpole Police Department in their individual and official capacities. In addition to a § 1983 claim, he claimed defamation based on having been publicly identified as Mrs. Kennedy's murderer. Shortly thereafter, Burke filed a similar lawsuit in federal court against various Massachusetts State Police troopers, employees of the Massachusetts Chief Medical Examiner's Office, and the Commonwealth of Massachusetts. After the state case was removed to federal court, Burke amended his complaint to combine the two cases, and then amended his complaint two more times to add claims of negligence against the Commonwealth and to join a second dentist as a defendant. His attempt to amend the complaint a fourth time was denied.

In time, the district court granted summary judgment to all defendants on all claims, and Burke appealed. As noted above, we affirmed the district court in every respect except for one: we vacated the grant of summary judgment to Tpr. McDonald on Burke's § 1983 claim alleging a Fourth Amendment violation, concluding that "the record contains evidence, sufficient to create a jury question, that he intentionally or recklessly withheld exculpatory DNA evidence from the magistrate who issued the warrant to arrest Burke, and a reasonable officer would know that such conduct violated a clearly established Fourth Amendment right." Burke I, 405 F.3d at 70.

Before, during, and after the ensuing trial, Tpr. McDonald maintained in the district court his position that he should not be found liable for damages incurred after the arraignment. In support of this position, Tpr. McDonald cited evidence, which he characterized as uncontroverted, suggesting that he had made a full disclosure of the exculpatory DNA evidence to the prosecution before ADA Pudolsky requested Burke's continued detention without bail. In McDonald's view, the district attorney, who after Tpr. McDonald's disclosure had all available information about the evidence inculpating and exculpating Burke, made a fully-informed and independent decision to ask for continued detention, and a fully-informed magistrate agreed. Tpr. McDonald argued to the district court, and maintains on appeal, that the arraignment therefore cut off the damages for which he can be liable, either as a matter of law or as a matter of fact.

The district court disagreed, and instead submitted the question to the jury as a matter of proximate cause and consequential damages. The court instructed the jury that "the plaintiff must establish the defendant's acts were the proximate cause of injuries to him and consequent damages sustained by him." Additionally, after defining and explaining the term "proximate cause" and emphasizing that an intervening cause cuts off liability,3 the court instructed:

572 F.3d 56

In this case it is the defendant's contention that even if he had withheld material information from other investigators on December 10th, he disclosed that the DNA testing had excluded Mr. Burke at the time of the arraignment on December 11th, so that any continued detention of Mr. Burke after that time could not have been caused by his withholding of information. That is also a factual issue for you to determine—for you to resolve, if, of course, you find that Trooper McDonald had withheld information prior to the application for a warrant.

Before the jury retired, the district court held a sidebar discussion and invited objections and corrections to its instructions. Tpr. McDonald's attorney objected, to no avail, as follows: "Your Honor, just for the record, I wanted to state that I believe I'm entitled to as a matter of law instruction that the probable cause determination by the Court on the 11th terminates any exposure my client has to damages." This objection was in addition to an instruction that Tpr. McDonald had proposed, also to no avail, which would have instructed:

[Y]ou may award [the Plaintiff] only such damages as will reasonably compensate him for such injury and damages as you find, from a preponderance of the evidence in the case, that he sustained from the time of his arrest until when the DNA results were disclosed. You are not permitted to award any damages you find the Plaintiff may have suffered following when the DNA results were disclosed by...

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