Harrington v. Wilber, No. 4:03-CV-90616.

CourtUnited States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
Writing for the CourtPratt
Citation353 F.Supp.2d 1033
PartiesTerry HARRINGTON, Plaintiff, v. Matthew D. WILBER and Pottawattamie County, Iowa, Defendants.
Docket NumberNo. 4:03-CV-90616.
Decision Date27 January 2005

Page 1033

353 F.Supp.2d 1033
Terry HARRINGTON, Plaintiff,
v.
Matthew D. WILBER and Pottawattamie County, Iowa, Defendants.
No. 4:03-CV-90616.
United States District Court, S.D. Iowa, Central Division.
January 27, 2005.

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COPYRIGHT MATERIAL OMITTED

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Larissa A. Ferullo, Spence Shockey & McCalla, Jackson, WY, Thomas P. Frerichs, Frerichs Law Office PC, Waterloo, J. Douglas McCalla, Spence Shockey & McCalla, Gerry L. Spence, Spence Shockey & McCalla, Jackson, WY, Brandon Adams, Adams Law Offices, Waterloo, IA, for Terry J. Harrington, Plaintiff.

Kristopher K. Madsen, Stuart Tinley Peters Thorn Hughes Faust & Madsen, Council Bluffs, IA, for Pottawattamie County, Iowa, Matthew D. Wilber, Defendants.

MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

PRATT, District Judge.


Before the Court is Defendants' Motion for Summary Judgment (Clerk's No. 14). Plaintiff Terry Harrington ("Harrington") filed a resistance to the motion and Defendant replied. The matter is fully submitted.

I. PROCEDURAL BACKGROUND

Plaintiff filed his first amended and substituted Complaint on November 13, 2003, alleging libel and slander against Defendants Matthew D. Wilber ("Wilber") and Pottawattamie County, Iowa ("Pottawattamie County"). Plaintiff is a resident and citizen of the State of Nebraska. Defendant Wilber is a resident and citizen of Pottawattamie County, Iowa. Defendant Pottawattamie County is a county within the State of Iowa. Plaintiff alleges damages

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in an amount exceeding $75,000.00. Thus, jurisdiction is proper pursuant to 28 U.S.C. § 1332, diversity jurisdiction.

II. FACTUAL BACKGROUND

In July 1977, the body of John Schweer ("Schweer"), a night watchman for a Council Bluffs automobile dealer, was found. Schweer had apparently been shot to death. On August 4, 1978, then eighteen-year-old Terry Harrington was convicted by a jury of his peers of the First Degree Murder of Schweer. Harrington maintained throughout his trial that he was at a music concert at the time Schweer was shot. Nonetheless, in light of the jury verdict finding him guilty, Harrington was sentenced to a term of life imprisonment, the required sentence under Iowa law. After serving approximately twenty-five years of his life sentence, the Iowa Supreme Court reversed Harrington's conviction, finding the prosecutor had committed a Brady violation by failing to disclose police reports identifying an alternative suspect. See Harrington v. Iowa, 659 N.W.2d 509 (Iowa 2003) (citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)). The case was remanded to the trial court for a new trial. Id.

Just prior to the Iowa Supreme Court's decision, in November 2002, Wilber was elected Pottawattamie County Attorney. Wilber took office on January 2, 2003. As a result of the press coverage of the matter, Harrington moved for a change of venue, alleging that he would "not be able to receive a fair trial in Pottawattamie County" due to the "high profile nature" of the case. Def.'s App. at 133. After the Iowa Supreme Court remanded the case for new trial, Wilber began conducting a renewed investigation into the murder of John Schweer. Based on his investigation, Wilber moved the Iowa District Court to dismiss the criminal case against Harrington, noting that there was insufficient admissible evidence to support a conviction due to the age of the case, and because important prosecution witnesses had recanted their prior testimony. Id. at 20. The motion was granted on October 24, 2003, and the charges against Harrington were dismissed without prejudice. Id. at 20-21.

Shortly after the district court granted the dismissal motion, Wilber issued a press release and held a press conference, announcing the dismissal of charges against Harrington. The press release read as follows:

It is with regret that I am announcing my decision to discontinue the prosecution against Terry Harrington for the murder of John Schweer. Recent events have unfortunately made it impossible for us to proceed with the trial. As you are all undoubtedly aware, I am very limited on the information I can convey outside of an official court document or proceeding. I can tell you that I have filed a very detailed application to dismiss this case and that Chief Judge Charles Smith granted that application a short while ago. It is important to note that this dismissal is considered to be "without prejudice," which basically means that should additional evidence come to light, or should evidence which is currently not admissible become admissible, our office could refile the charge of First Degree Murder against Mr. Harrington.

I met with the children of John Schweer for about two hours this morning. They have asked me to let you know that they may be issuing a statement through a family representative but would prefer that they not be contacted directly by the media. They did ask me to let you know that, while disappointed in the outcome, they are supportive

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of the decision to discontinue the prosecution of this case at this time.

The interesting irony of this case is that Terry Harrington was put in prison by his own friends and associates. If they are now choosing to change their sworn testimony there is little I can do to stop that. We play the cards we are dealt as best we can. In this case, there were multiple witnesses who changed their testimony from what was given in 1978, including the recent recantation of Kevin Hughes during his deposition yesterday morning.

I want to thank Detective Dave Dawson (and the rest of the Council Bluffs Police Department for that matter) for his dedication to this case. Detective Dawson was able to track down over 71 of our 82 witnesses and the 11 he couldn't track down actually passed away during some point over the past twenty-six years. Detective Dawson did a fantastic job organizing this case after it sat in our closed files for over twenty-five years.

After personally spending hundreds of hours on this case, I have no doubt that Terry Harrington committed the murder of John Schweer on July 22, 1977. The jury made the right decision in 1978, and the right man went to prison for over twenty-five years. That said, I also have no doubt that the admissible evidence which is left after twenty-six years is not sufficient to sustain a conviction against Mr. Harrington.

The easy decision on this case would have been to let it drop when the Supreme Court granted Mr. Harrington a new trial earlier this year. I certainly had many people recommend that I take that easier path. That would not have been the right decision, however. I owed it to the family of John Schweer to do my best on this case to bring his killer to justice a second time. And while I am disappointed that I will not get the opportunity to put this case before a jury, I am satisfied that nothing else could have been done, by my office or by the Council Bluffs Police Department. As for final justice for Terry Harrington, I will defer that honor to a higher power.

On a related note, Curtis McGhee, a co-defendant of Mr. Harrington's in this case, pleaded no contest today to a charge of Second Degree Murder for the death of John Schweer. Mr. McGhee was sentenced to a term of imprisonment of twenty-five years. Since Curtis McGhee had already served more than twenty-five years in prison since his original conviction in 1978, he was credited with time served and left the courthouse late this morning. Even though Mr. McGhee did not actually pull the trigger on the gun that killed John Schweer, our case against him was stronger than against Terry Harrington. Mr. McGhee had made admissions to at least three different people about being with Terry Harrington when Harrington shot a police officer in Council Bluffs. Those statements would likely not be admissible in a trial against Terry Harrington, but would certainly have come into evidence at a trial against Mr. McGhee. Mr. McGhee was offered a chance to plead to Second Degree Murder back in 1978 and, had he taken that deal back then, he would probably have been paroled over ten years ago.

Matt Wilber, Pottawattamie County Attorney

Def.'s App. at 147-49 (emphasis added).

Harrington claims that the italicized portions of Wilber's press release constitute libel per se. Moreover, Plaintiff claims that, at a press conference on the same date, Wilber orally defamed him by repeating and enlarging on the printed

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statements, constituting slander per se. Plaintiff, therefore, requests damages for defamation to his name and reputation, and for emotional distress. Moreover, Plaintiff argues that Wilber's actions were done willfully and with malice, thus entitling Plaintiff to punitive damages. Plaintiff raises the same allegations against Pottawattamie County, as he claims Wilber's actions were taken in the course of his employment with the County.

Defendants filed the present motion for summary judgment on August 16, 2004. Defendants claims that Plaintiff's case should be dismissed because: 1) Wilber's statements are protected as First Amendment opinion; 2) Wilber's statements are protected by an absolute privilege because they were incidental to the termination of a judicial proceeding; 3) Wilber's statements are protected by qualified privilege; 4) Wilber's statements were discretionary acts immune from liability under the Iowa Municipal Tort Claims Act, Iowa Code § 670 et seq.; and 5) Plaintiff's claim for punitive damages fails as a matter of law under the Iowa Municipal Tort Claims Act.

III. STANDARD FOR SUMMARY JUDGMENT

Summary judgment has a special place in civil litigation. The device "has proven its usefulness as a means of avoiding full-dress trials in unwinnable cases, thereby freeing courts to utilize scarce judicial resources in more beneficial ways." Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991). In operation, the role of summary judgment...

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7 practice notes
  • Grega v. Pettengill, Case No. 5:14–cv–00147.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • August 18, 2015
    ...the court construes Davis's statement as opinion, Grega argues that it is similar to the one found actionable in Harrington v. Wilber, 353 F.Supp.2d 1033 (S.D.Iowa 2005). There, the plaintiff had been convicted of murder and spent twenty-five years in prison before his conviction was revers......
  • McGhee v. Pottawattamie County, Ia, No. 4:05-cv-00255.
    • United States
    • U.S. District Court — Southern District of Iowa
    • February 23, 2007
    ...defense in Harrington's companion case, Iowa Southern District # 4:03-cv-90616 (Clerk's No. 29), published at Harrington v. Wilber, 353 F.Supp.2d 1033 (S.D.Iowa 2005). The court found that the attachment of qualified privilege was appropriate, but that a genuine issue of material fact had b......
  • Harrington v. Wilber, No. 4:03-cv-90616 RP-TJS.
    • United States
    • U.S. District Court — Southern District of Iowa
    • November 9, 2009
    ...function or duty ... whether or not the discretion is abused." Iowa Code § 670.4(3). In an order dated January 27, 2005, 353 F.Supp.2d 1033 (S.D.Iowa.2005), the Court denied Wilber's motion for summary judgment, concluding that while he had adequately shown that issuing statements abou......
  • Ferguson v. Short, No. 2:14-cv-04062-NKL
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • August 12, 2014
    ...is also no way to verify the truth of the statement "They know how I feel." Ferguson relies heavily on Harrington v. Wilber, 353 F.Supp.2d 1033 (S.D. Iowa 2005). In Harrington, Harrington was convicted of murder, but his conviction was later vacated on the grounds that the prosecu......
  • Request a trial to view additional results
7 cases
  • Grega v. Pettengill, Case No. 5:14–cv–00147.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • August 18, 2015
    ...the court construes Davis's statement as opinion, Grega argues that it is similar to the one found actionable in Harrington v. Wilber, 353 F.Supp.2d 1033 (S.D.Iowa 2005). There, the plaintiff had been convicted of murder and spent twenty-five years in prison before his conviction was revers......
  • McGhee v. Pottawattamie County, Ia, No. 4:05-cv-00255.
    • United States
    • U.S. District Court — Southern District of Iowa
    • February 23, 2007
    ...defense in Harrington's companion case, Iowa Southern District # 4:03-cv-90616 (Clerk's No. 29), published at Harrington v. Wilber, 353 F.Supp.2d 1033 (S.D.Iowa 2005). The court found that the attachment of qualified privilege was appropriate, but that a genuine issue of material fact had b......
  • Harrington v. Wilber, No. 4:03-cv-90616 RP-TJS.
    • United States
    • U.S. District Court — Southern District of Iowa
    • November 9, 2009
    ...function or duty ... whether or not the discretion is abused." Iowa Code § 670.4(3). In an order dated January 27, 2005, 353 F.Supp.2d 1033 (S.D.Iowa.2005), the Court denied Wilber's motion for summary judgment, concluding that while he had adequately shown that issuing statements abou......
  • Ferguson v. Short, No. 2:14-cv-04062-NKL
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • August 12, 2014
    ...is also no way to verify the truth of the statement "They know how I feel." Ferguson relies heavily on Harrington v. Wilber, 353 F.Supp.2d 1033 (S.D. Iowa 2005). In Harrington, Harrington was convicted of murder, but his conviction was later vacated on the grounds that the prosecu......
  • Request a trial to view additional results

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