Metropolitan News-Enterprise


Monday, June 3, 2013


Page 1


Court Orders New Trial in Suit Alleging LAPD Framed Suspects




Two men who spent 16 years in prison before their murder convictions were overturned, and who claim that Los Angeles police officers intimidated a witness into giving false testimony, were granted a new trial Friday in their civil suit against the officers and the city.

The Ninth U.S. Circuit Court of Appeals said confusing jury instructions by U.S. District Judge Otis Wright of the Central District of California may have led jurors to hold the plaintiffs to a higher standard of proof than the law requires.

The two, Timothy Gantt and Michael Smith, were convicted in 1994 of the 1992 murder of Kalpesh Vardhan and sentenced to life imprisonment without possibility of parole.

The body of Vardhan, a 23-year-old Anderson Consulting employee with a degree in electrical engineering, was found in the structure where he parked for work. He had been stabbed 19 times and his wallet was missing.

Corroborated Testimony

A fellow employee, Kevin Shorts, said he saw Vardhan in the parking structure about seven hours earlier and saw another car containing two black men nearby. A parking lot cashier corroborated that testimony.

Shorts collected a $20,000 reward, even though he at one point identified a photograph of someone else as Gantt’s accomplice before identifying Smith.

Two months after the slaying, a suspect being questioned by LAPD officers in connection with some car break-ins in parking garages, David Rosemond, claimed to have seen the attack on Vardhan. He identified photos of Smith and Gantt from a book of mug shots and said he knew them from the neighborhood.

Rosemond repeated those claims at trial, where he was the only witness who said he saw the attack. He also testified that he took Vardhan’s ATM card after Smith and Gantt fled the scene.

Conviction Thrown Out

Gantt’s conviction was thrown out by the Ninth Circuit 10 years later on the ground that prosecutors withheld exculpatory evidence related to the only physical evidence offered to connect Gantt to the crime—a matchbook from the Shalimar Indian restaurant in the San Fernando Valley that was found on the defendant.

Prosecutors claimed that Gantt—a homeless man who admitted to eking out a living by selling stolen international calling card numbers to immigrants seeking a cheap way of calling friends and family back home, and said he got the matchbook from a customer who used it to write down a number—must have lifted it from the victim.

But they failed to disclose that the number written on the matchbook connected to a man in  Bangladesh who did not recognize the murder victim’s name or photo, or that the Bangladeshi man’s son, who worked at the restaurant, did not recognize the victim from a photo either.

That information was exculpatory and should have been disclosed under Brady v. Maryland, the appellate panel said. At Gantt’s second trial, in 2008, Rosemond recanted his original testimony and the charges were dismissed; the case against Smith was thrown out in 2009.

Consolidated Complaints

In separate complaints that were later consolidated, the men sued the city and several individual officers, claiming, among other things, that they had used coercive and manipulative interrogation techniques to induce Rosemond to incriminate them. The jury found for the defendants in 2010.

But Judge Barry Silverman, writing for a divided panel Friday, said Wright committed prejudicial error in explaining to the jury the rule that police falsification of evidence is actionable under 42 U.S.C. Sec. 1983 only if it is deliberate.

The Ninth Circuit has held that to establish deliberate falsification, the plaintiffs had to show “at a minimum” that the police either continued their investigation despite knowing the plaintiffs were innocent, or that the interrogation was “so coercive and abusive that they knew or should have known” that the information they were getting would be false.  Gantt and Smith, Silverman noted, only presented evidence that would support a verdict in their favor as to the second prong.

Wright told jurors that investigative techniques are coercive and abusive if they “shock the conscience, that is, the conduct of the police officer is intended to injure in some way, unjustified by any governmental interest.” He then gave “[t]orture” as an example.

The judge also told jurors that they could find for the plaintiffs to the ground of “deliberate indifference” to the rights of the plaintiffs, which he defined as “the conscious or reckless disregard of the consequences of one’s acts or omissions,” entailing “something more than negligence but is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.”

Those explanations were flawed, Silverman said, because they “failed to state the intent-to-injure and deliberate-indifference standards in a clear disjunctive format, so that a reasonable juror would understand each of these satisfies the broader ‘shocks-the-conscience’ standard,” and because by listing torture as the lone example.

By doing so, the judge said, Wright conflated the shocks-the-conscience standard with an intent-to-injure requirement and misled the jury.

The error was not harmless, Silverman went on to say, because the plaintiffs presented sufficient evidence to support a verdict in their favor.

Chief Judge Alex Kozinski concurred, but Senior Judge Andrew Kleinfeld dissented.

While the plaintiffs did not get a fair trial for the murder, Kleinfeld argued, any error in the jury instructions in their civil case was harmless because they did not establish a prima facie case that the evidence against them was deliberately fabricated.

“There was no evidence that the police exerted their pressure on Rosemond in order to make him testify to what the police believed to be false,” Kleinfeld insisted. Rosemond, he observed, “has not claimed that he lied twenty years ago, just that he can no longer remember and had not been wearing his glasses.”

The case was argued by Emmanuel C. Akudinobi of Akudinobi & Ikonte for the plaintiffs and by Deputy City Attorney Lisa S. Berger for the defendants.

The case is Gantt v. City of Los Angeles, 11-55000.


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