Innocent Man Can Sue Louisville For Wrongful Conviction

by TChris

The Sixth Circuit has cleared the way for William Gregory to sue Louisville for acts that caused his wrongful conviction. Gregory was imprisoned for eight years before DNA tests demonstrated that he wasn't the man who raped one woman and threatened to rape another. Gregory contends that the police withheld evidence that would have helped him prove his innocence.

A three-judge appeals panel said Gregory presented evidence that the police department encouraged one-on-one "show-ups" -- in which police present one person to a witness and ask if he's the suspect -- knowing they are inherently suggestive, and that it failed to train officers on their duty to disclose evidence suggesting a suspect may be innocent.

"Show-ups" -- presenting the suspect to the victim and asking "is this the guy?" rather than including him in a line-up -- have long been recognized as unduly suggestive, but some police departments continue to use them, creating serious risks of misidentification.

One of Gregory's lawyers, Deborah Cornwall of New York, called the ruling "a landmark decision for civil rights plaintiffs and in particular for DNA exonorees who spent years in prison for crimes they didn't commit after victims and witnesses misidentified them. It recognizes that a one-on-one show-up -- as opposed to a lineup with six or seven people -- runs too high a risk that the witness will misidentify the suspect."

Her co-counsel, Barry Scheck, a co-founder of the Innocence Project, which helped free Gregory, called the ruling "a home run for the plaintiff."

Hiding evidence from the defense is an even more alarming practice. It happened repeatedly in Gregory's case.

Yesterday's Court of Appeals ruling cited several instances in which police failed to disclose evidence that might have shown Gregory was innocent. It said:

Officer Steve Clark, who investigated the first attack, testified at a preliminary hearing that the victim failed to pick Gregory from a photo array but did not reveal that she picked another suspect.

Clark testified at the same hearing that the first victim's description "fit" Gregory when the victim had described the perpetrator as clean-shaven and 5-feet, six inches tall; Gregory is 5-foot-11½, and had worn a beard for 10 years.

Detective John Tarter failed to disclose to Gregory that the second victim failed to pick him out of a photo pack. Tarter then persuaded him to submit to a one-on-one show-up, where the same victim identified him.

When a third victim was attacked after Gregory was jailed, Tarter and the department took no steps to explore whether the same suspect may have committed the crimes with which Gregory was charged.

When Tarter testified before a grand jury, he didn't mention that the second victim had failed to pick Gregory from a photo array, or that two similar attacks had occurred after Gregory was jailed.

State police analyst Dawn Ross Katz said that five hairs found in the pantyhose mask came from an African American and matched Gregory's but failed to disclose that at least one of the two additional hairs didn't match his. The microscopic tests that Katz performed was done before DNA tests for hair strands were available.

The decision is here (pdf).

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