Metropolitan News-Enterprise


Tuesday, December 9, 2008


Page 3


Court: No Immunity for Police Officers Accused of Withholding Evidence


By STEVEN M. ELLIS, Staff Writer


Two men exonerated of murder after 13 years in prison can proceed with a civil rights action alleging two San Francisco Police Department homicide inspectors withheld exculpatory evidence and manufactured and presented perjured testimony, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Explaining that the officers violated a duty to tell prosecutors about a witness’ statement incriminating others in the murder, as well as another individual’s taped confession to the crime, a three-judge panel affirmed a ruling by U.S. District Judge Claudia Wilken of the Northern District of California rejecting the officers’ claims of immunity.

John Tennison and Antoine “Sodapop” Goff were convicted of the August 1989 murder of Roderick Shannon, 18. Prosecutors said Goff, aided by Tennison, shot and killed the victim in retaliation for an earlier drive-by shooting that was part of an ongoing battle between gangs from the Sunnydale section of San Francisco, where Shannon lived, and the Hunters’ Point area.

The prosecution charged that Tennison, Goff and others chased Shannon and caught him as he tried to climb a fence, then pulled him back into a parking lot where Tennison held him while Goff killed him with a blast from a shotgun.

Two girls—Masina Fauolo, 11, and friend Pauline Maluina, 14—identified Tennison at trial, saying they had followed the chase because one of them was a friend of Shannon. Both men were convicted of first degree murder.

Tennison later moved for a new trial on the ground that another man, Lovinsky Ricard, had confessed to being the shooter and had said that Tennison was not present. The motion was denied on the ground that the confession was unreliable and that Ricard— who recanted his statement after the motion for new trial was denied—could have been called as a witness at trial.

However, in 2003 Wilken overturned the conviction on the ground that prosecutors had suppressed Brady material, including evidence that officers had received money to distribute to witnesses, but could not explain who had gotten it, and that one of the identification witnesses had taken an inconclusive polygraph test.

Wilken’s order was also based on the grounds that a woman named Chante Smith had given a videotaped interview saying that Ricard was the shooter and identifying others she claimed were present, but inspectors Prentice Sanders and Napoleon Hendrix had merely placed the statement in their file rather than turn it over to prosecutors, and that Ricard had confessed months before the prosecution turned the videotape of his statement over to the defense.

Prosecutors later dropped the case rather than retry it, and when Tennison moved for a declaration of factual innocence, the district attorney responded: “The People concur that Petitioner is factually innocent pursuant to Penal Code section 851.8.”

Tennison and Goff then brought suit under 42 U.S.C. § 1983 against the inspectors for allegedly withholding material, exculpatory evidence, who in turn moved for summary judgment asserting absolute and qualified immunity, but Wilken rejected the inspector’s argument that the plaintiffs needed to establish that the inspectors acted in bad faith in withholding the confession.

She then denied the inspectors’ motion for summary judgment with respect to the confession and Smith’s statement on absolute immunity and qualified immunity grounds, and held that disputed facts regarding a request for payment of a reward precluded a grant of summary judgment on the basis of qualified immunity.

On appeal, Senior Judge A. Wallace Tashima rejected the inspectors’ argument that the duty to disclose exculpatory evidence applied only to prosecutors and not police officers, and agreed with Wilken that Tennison and Goff did not need to show bad faith to establish Sec. 1983 liability.

  He then said that the inspectors were not entitled to qualified immunity with respect to Smith’s statement, writing that it “should not have been buried in a file,” and opined that it was clear the statement and Ricard’s confession should have been disclosed to the defense.

“The Inspectors received a Mirandized confession by someone who had been named by a reliable witness, known to the officers, who recounted events surrounding the murder in detail, and whose account contradicted that of the prosecution’s witnesses,” he wrote. “The evidence certainly ‘undermines confidence in the outcome of the trial.’”

Tashima further said that it was “immaterial” that the inspectors received the tape of the confession after a guilty verdict was rendered both men received it while still involved in new trial and post-conviction proceedings for both Tennison and Goff, and flatly rejected the inspectors claims to absolute immunity, noting the pair acting only as investigators, not advocates.

The judge similarly rejected the inspectors’ request for summary judgment on their claim for qualified immunity as to the possible payment of a witness, noting that evidence that a reward was requested and paid raised a genuine issue of fact.

Judges Michael Daly Hawkins and Sidney R. Thomas joined Tashima in his opinion.

Tennison previously sought compensation for the time he spent imprisoned, but the First District Court of Appeal ruled in July 2007 that a stipulated trial court order declaring a defendant factually innocent of the crime for which he was imprisoned prior to his conviction being set aside is not binding on the California Victims Compensation and Government Claims Board, the state board that hears claims for compensation for wrongful imprisonment by the state.

The case is Tennison v. Sanders, 06-15426.


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