Kerr v. Lyford
| Decision Date | 14 April 1999 |
| Docket Number | No. 97-41553,97-41553 |
| Citation | 171 F.3d 330 |
| Parties | Eugene KERR and Geneva Kerr, Plaintiffs-Appellants, v. Roland Scott LYFORD; et al., Defendants, Roland Scott Lyford, Ann Goar, Debbie Minshew, Brooks Fleig, and Steve Baggs, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Sybil K. Colson, Paris, TX, Gregory Philip Sapire, Smyser, Kaplan & Veselka, Houston, TX, for Plaintiffs-Appellants.
Richard Huges Davis, Robert Christopher Bunt, Howard & Davis, Tyler, TX, Ramon Gustave Viada, III, Abrams, Scott & Bickley, Houston, TX, for Roland Scott Lyford.
Jose Manuel Rangel, Austin, TX, for Ann Goar and Debbie Minshew.
Toni B. Hunter, Austin, TX, for Ann Goar, Debbie Minshew and Steve Baggs.
George Brown Barron, Orange, TX, for Brooks Fleig.
Nancy Kathleen Juren, Austin, TX, for Steve Baggs.
Appeal from the United States District Court for the Eastern District of Texas.
Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.
Plaintiffs appeal the dismissal, on grounds of immunity, of their civil rights claim. We affirm.
Eugene and Geneva Kerr (the "Kerrs") allege that they were wrongfully investigated, arrested, and incarcerated for the kidnaping, rape, and murder of Kelly Wilson. They sued, under 42 U.S.C. § 1983, those persons involved in the investigation and prosecution that led to their arrest and incarceration: Roland Lyford, Ann Goar, Debbie Minshew, Brooks Fleig, and Steve Baggs. Moving for summary judgment, Goar, Minshew, Fleig, and Baggs claimed qualified immunity; Lyford asserted absolute and qualified immunity.
Defendants' involvement in this disturbing and largely unresolved saga of child abuse, child molestation, and occult-related rape and murder can be traced to November 1990, when Goar, an employee of the Texas Department of Human Services ("TDHS"), 1 was assigned the case of Loretta and Wendell Kerr and their four children. Wendell Kerr is the son of plaintiffs Eugene and Geneva Kerr, so his and Loretta's children are the grandchildren of the instant plaintiffs. On account of sexual abuse allegations made against Wendell Kerr, the Kerrs' grandchildren (the "Kerr children") were living in foster homes, and it was Goar's responsibility to meet with them on a monthly basis.
In December 1990, Goar was shown a letter addressed to Wendell Kerr written by Lucas Geer, the brother of Wanda Geer Hicks, a woman who, following her divorce from James Hicks, had begun dating Wendell Kerr (who had recently divorced Loretta Kerr). In this letter, Lucas Geer appears to apologize to Wendell Kerr for sexually abusing one of Wanda Geer Hicks's sons. As a result of this letter, Goar began to counsel Wanda Geer Hicks and her five children (hereinafter referred to collectively as the "Hicks children") in addition to the Kerr children mentioned above.
In May 1991, Wendell Kerr was indicted on charges that he had sexually abused one of his daughters. When TDHS discovered that Wendell Kerr had married Wanda Geer Hicks (hereinafter referred to as "Wanda Kerr") and moved in with her and her five children, it executed an emergency removal of these children, placing them into three different foster homes. The most troubled of these children was placed in Barbara Bass's therapeutic foster home. Minshew was the TDHS caseworker assigned to supervise the Bass home.
Once in their foster homes, the Kerr and Hicks children began to tell elaborate tales of sexual abuse. They spoke of sexual molestation and sodomization at the hands of their parents, grandparents (Eugene and Geneva Kerr), and strangers. They reported being coerced into having sex with each other as their parents, grandparents, and strangers looked on and videotaped them. They told of blood, the devil, masks, and knives, all in connection with their sexual abuse. Lastly, they told graphically of the murder and dismemberment of babies and children at the hands of their parents and grandparents.
The Kerr and Hicks children made the above statements on numerous occasions and in a variety of settings. 2 Some of these statements were proffered spontaneously and voluntarily, while others were elicited via vigorous and coercive questioning, utilizing techniques that have been resoundingly criticized by the plaintiffs' expert and by Child Protective Services ("CPS"). 3 Indeed, one of the reasons why the state ultimately dropped its prosecution of the Kerrs on child abuse charges is that, in its opinion, Minshew's and Goar's mishandling of the child witnesses made the children's testimony untrustworthy. The Kerrs' expert witness, Dr. Perry, explained how child witnesses are quite impressionable, and inappropriate forms of questioning can taint even their very recollection of events. Medical examination of the children did reveal, however, genital and anal scarring consistent with their allegations of sexual molestation, and defense experts disputed the charge that Goar's and Minshew's interviewing techniques were improper.
Around June 1992, Goar's and Minshew's supervisor, Loye Bardwell, asked Baggs to help in investigating the Kerrs. Baggs was an investigator for the Criminal Law Enforcement Division of the Texas Department of Public Safety who had developed expertise in investigating ritualistic behavior and occult practices. He assented and called on Fleig, a Louisiana peace officer, also experienced in ritually-based crime, to assist him. Baggs's and Fleig's discussions with the children convinced them of the possibility that the Kerrs had engaged in some sort of ritualistic abuse.
One of the adults identified by the children as a participant in their victimization was Lucas Geer, who was currently serving time for violating the conditions of his parole. Baggs and Fleig interviewed Geer and heard him confess to making a variety of sexual assaults on the children and to participating in the ritualistic murder of babies on the Kerrs' property. Geer corroborated many of the allegations made by the Kerr and Hicks children implicating the other Kerr adults, including Eugene and Geneva Kerr, in their abuse and torture. Polygraph testing suggested that Geer was truthful in making these statements.
Statements of the Kerr and Hicks children also led defendants to "R.S.," a male juvenile who was another alleged victim of sexual molestation at the hands of the Kerr adults. R.S. provided the initial link between the child abuse investigation of the Kerrs and the Kelly Wilson murder: He told investigators that he had witnessed Wilson's abduction, rape, and murder. 4 He provided details of these events and said that Wilson's body was kept in a shed in the Kerrs' backyard.
Utilizing an infrared system designed to detect heat rays emitted from human remains buried underground, Baggs flew over the Kerrs' property and located two potential sites of such remains. A cadaver-sensing dog also alerted to three potential sites: (1) a toolbox containing a blue bag, (2) a red shed, and (3) three shallow grave-like depressions in the soil. The red shed exhibited signs of recent heavy washing and repainting and contained a shovel that had blood residue on it. Additionally, investigation revealed a circular clearing in the woods behind the Kerrs' house that matched the description given by the children as the place where much of their sexual abuse had occurred.
In May 1993, Upshur County District Attorney Tim Cone obtained indictments against the Kerrs--along with four other members of the Kerr family--alleging sexual child abuse. Discovering that he was disqualified from prosecuting the indictments because of prior representation of the Kerr family, Cone asked the state district court in Upshur County to appoint Lyford as special prosecutor pursuant to TEX.CODE CRIM.PROC.ANN. ART. 2.07 (Vernon 1977). Cone also personally appointed Lyford as an assistant district attorney ("ADA") pro tem for Upshur County, charged with prosecuting the sexual abuse cases and "any criminal or civil lawsuits arising out of any and all incidents related or connected" thereto.
Lyford had served two years as the Travis County District Attorney's Office Chief Litigator for TDHS. At the time he was appointed special prosecutor in the instant case, he was practicing law with a prominent firm in Galveston, Texas.
In December 1993, Lyford reached plea agreements with Wanda Kerr and Connie Martin, who, pursuant to their agreements, provided, among other things, further evidence implicating the Kerrs in Wilson's kidnaping, sexual assault, and murder. They identified items removed from the blue bag found in a toolbox on the Kerrs' property as instrumentalities of restraint and torture. 5 Wanda Kerr and Connie Martin passed polygraph tests in connection with their statements.
Wanda Kerr also described how Danny Kerr (son of Eugene and Geneva Kerr) had abducted Wilson as an apparent "birthday present" for Geneva Kerr. Danny Kerr purportedly had picked Wilson up in his van and took her to the Kerrs' property, where she was raped and murdered. Her body was kept in the red shed in their backyard. Wanda Kerr even retraced the route Danny Kerr had taken during the abduction. 6
Connie Martin provided further corroboration of the account of Wilson's abduction given by Wanda Kerr and R.S. She also reiterated the children's stories of ritualistic sex, torture, and murder and stated that some of the victims were buried in Danny Kerr's backyard, in body bags of metal and plastic. A subsequent search of Danny Kerr's backyard, conducted by Baggs and Fleig, revealed bone fragments wrapped in pieces of metal and plastic. These fragments initially were identified by forensic analysis to be subadult human. 7 Baggs and Fleig also uncovered two devil masks, two knives, a bayonet, a blood-stained mattress cover, and a long machete belonging to Danny Kerr. Connie Martin stated that the machete was used by Danny Kerr to dismember his victims, and several of the...
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