Tuesday, March 31, 2009
Court Revives Claim Long Beach Police Fabricated Evidence
By SHERRI M. OKAMOTO, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday revived Leonard McSherry’s civil rights case against the Long Beach Police Department arising from his wrongful conviction for the 1988 kidnapping and rape of a 6-year-old girl.
Reversing a grant of summary judgment by U.S. District Court Judge R. Gary Klausner of the Central District of California for the second time, the panel ruled that genuine issues of material fact exist as to whether the police deliberately fabricated evidence against McSherry.
In March of 1988, the victim was kidnapped from a playground on a U.S. Navy Base in Long Beach. Her abduction was witnessed by her 4-year-old brother.
Both children provided Long Beach Police Department investigators with descriptions of the suspect and said his car was green. A neighbor later described a suspicious man in the area which matched the children’s descriptions, and also reported seeing an unfamiliar green pickup truck in the area.
Several weeks after the abduction, Officer Norman Turley’s police reports indicated that he showed both children a photo lineup, and they identified McSherry as the perpetrator. Both identified a yellow Mazda station wagon belonging to McSherry’s father as the vehicle used in the abduction, the reports said.
After McSherry was arrested and provided a detailed description of the interior of his grandparents’ residence to Turley, the officer interviewed the victim to obtain a description of the place where she had been taken and molested.
Turley’s report documenting this interview listed specific details allegedly provided by the victim about the room where she had been raped and further stated that the victim picked McSherry’s grandparents’ home out of a photo lineup as the place McSherry had taken her.
A search warrant was then executed at McSherry’s grandparents’ house. Turley’s subsequent police report stated that the victim’s description matched a bedroom in the residence.
After the search, Turley re-interviewed the victim, and according to Turley’s report, the victim described the doors to the room, the location of a photograph of McSherry on the wall, a white push button phone and a window with a seat.
McSherry was convicted of kidnapping, rape and molestation and sentenced to a term of 48-years to life imprisonment.
Nearly 14 years later, McSherry was exonerated by DNA evidence and he filed suit against the City of Long Beach, the police department and Turley.
In support of his claim that Turley had fabricated evidence against him, McSherry introduced the deposition testimony of the victim in which she denied providing the detailed description of the residence ascribed to her by the officer.
Just before trial was scheduled to begin, the defendants filed a motion for summary judgment on the basis that Turley was entitled to qualified immunity.
Klausner granted the motion and dismissed the municipal liability claims as pendant to the individual liability claim.
The Ninth Circuit reversed, holding the district judge had inappropriately granted judgment as a matter of law before McSherry had an opportunity to be fully heard on the issue of qualified immunity, and remanded the matter.
On remand, Klausner again granted summary judgment in favor of the defendants.
Writing for the appellate court, Senior Judge Stephen S. Trott noted the incongruity between the victim’s deposition testimony and Turley’s police reports and said such discrepancies meant there were genuine issues of material fact as to whether Turley fabricated the descriptions of the home’s interior.
“Credibility is an issue for the trier of fact,” he wrote.
But even if the descriptions were fabricated, Trott reasoned, the officers had probable cause to arrest McSherry since the victim and her brother had identified him and his father’s vehicle, and medical evidence did not exclude him as a suspect.
The police also did not act in bad faith by relying on the children’s photo lineup identification of McSherry rather than their initial descriptions, he added.
Judges Richard R. Clifton and Consuelo M. Callahan joined Trott in his opinion.
Mark A. Borenstein—who was appointed to the Los Angeles Superior Court last week—and Mark E. Overland of Overland Borenstein Scheper & Kim LLP represented McSherry.
Overland said his client has “been waiting a long time” for a day in court, but ever since the complaint was filed in 2002, “the city’s been doing all they could to prevent us from going to trial.”
He noted that “this is the second time that this judge has been reversed on this, and hopefully this will be the last time and we can get to trial,” adding that he was “look[ing] forward to them trying to explain how this little 5-year old girl can describe the inside of a house she had never been in.”
The attorney opined that the Long Beach Police Department has “a history of less than stellar behavior, so hopefully they’ve cleaned up their act by now” because this case “is going to bring to the public’s attention that certainly at that time they had not cleaned up their act, with tragic results for Mr. McSherry.”
Michael M. Mullins and Nowland C. Hong of Akerman Senterfitt LLP represented the city and Turley. They could not be reached for comment.
The case is McSherry v. City of Long Beach, 06-55837.
Copyright 2009, Metropolitan News Company