Tuesday, March 6, 2018
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Ninth Circuit:
Wrongfully Convicted Man’s Action Against City of Modesto Fails
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals—in a case it described as “tragic”—has affirmed the dismissal of an action brought against the City of Modesto and others by a man who spent 16 years in prison for the murder of three persons who died in a fire he was accused of setting, but was freed in 2013 after judicially establishing “actual innocence.”
A memorandum opinion of a three-judge panel, issued Friday, says that plaintiff George Souliotes’s complaint was inadequately pled. The panel was comprised of Judge Paul J. Watford, who did virtually all of the questioning, and Senior Judge Mary Schroeder, joined by District Judge Susan Illston of the Northern District of California, sitting by designation.
The opinion affirms a decision by Chief Judge Lawrence J. O’Neill of the Eastern District of California.
Souliotes asserted in his complaint that the city was responsible for his wrongful conviction based on its police department having concealed evidence in connection with a blaze in the early morning hours of Jan. 15, 1997, at a residence he leased to a family, that resulted in the fatalities. (A mother and two minor children perished; the father was at work.)
He also alleged that members of the fire department snapped to the conclusion that arson had occurred before stepping foot in the burned structure and without observing standards set forth in a 1992 guide promulgated by the National Fire Protection Assn., rendering supposed expert testimony as to the cause valueless.
Key Witness’s Testimony
The contention of concealment of evidence was in connection with testimony by Monica Sandoval, the key witness at the trial that resulted in the conviction of Souliotes on three counts of murder and one count of arson. Sandoval, who resided near the residence where the deaths occurred, testified that she saw a motor home go back and forth in front of the residence where the fire occurred, that it stopped, and that a man got out, went onto the property carrying what looked like a pillowcase, and returned to the vehicle carrying nothing.
She told jurors that shortly after that, the house was engulfed in flames. Sandoval identified Souliotes as the man she spotted and also identified his vehicle.
According to the complaint, Sandoval initially provided a description of a person who could not have been Souliotes. Also, it was set forth, she drew a sketch of a vehicle unlike Souliotes’s and gave a tape recorded statement, neither of which was preserved, or mentioned in police reports, or disclosed to the defense.
In a habeas corpus proceeding, the U.S. District Court found Sandoval’s credibility to be doubtful, one of the factors leading eventually, in protracted proceedings—commenced May 20, 2006—to an order to the state court on April 12, 2013 (founded directly on ineffective assistance of counsel) to release Souliotes or retry him. Rather than face a new trial on charges of murder and arson, Souliotes entered into a plea bargain under which he pled no contest to involuntary manslaughter based on a failure to make sure the smoke detector at the residence he leased was operational, with immediate release.
Watford’s Views
At oral argument on Feb. 12, Watford faulted the complaint for not containing facts amassed after the trial at which Souliotes was convicted. He questioned how the allegedly suppressed sketch and the audio recording could be material given the lack of information as to “what supposedly was in this sketch, or what, supposedly, was in this recording.”
In light of probable cause having been established at the preliminary hearing, Watford suggested that the cause of action for malicious prosecution could not survive if the allegation of fabrication of evidence failed—as his questioning indicated it would. He also expressed doubt that the matter was resolved in favor of Souliotes in light of the no contest plea.
Friday’s opinion declares, with respect to the adequacy of the pleading, that two decisions of the U.S. Supreme Court heighten standards for setting forth federal civil rights claims. Bell Atlantic Corp. v. Twombly, decided in 2007, requires that sufficient facts be set forth showing that a violation is plausible, and Ashcroft v. Iqbal, handed down in 2009, disapproves conclusory allegations.
Ninth Circuit Opinion
Friday’s opinion states:
“The core allegations in the complaint assert that the defendants framed Souliotes by fabricating Sandoval’s eyewitness identification as well as the expert opinion testimony declaring that the fire was caused by arson.”
It sets forth:
“The complaint forcefully asserts conclusions concerning alleged fabrication of evidence, but that is no longer enough. To survive a motion to dismiss, a plaintiff must now allege enough underlying factual material from which the stated conclusions may plausibly be inferred. Souliotes’ complaint fails to allege the needed factual material, notwithstanding his access to the information revealed in lengthy and successfully litigated habeas proceedings that eventually led to his release.”
The opinion adds that the factual allegations do not meet the test of Ashcroft by permitting “the court to draw the reasonable inference” that there was a fabrication of evidence.
Suppression of Evidence
With regard to the alleged suppression of evidence—the sketch and the recording—assertedly in violation of the U.S. Supreme Court’s 1963 decision in Brady v. Maryland as well as its 1988 proclamation in Arizona v. Youngblood, the opinion says:
“The complaint alleges that the police failed to disclose a sketch prepared by Sandoval and a recording of their interview with her. The complaint further alleges that this evidence was exculpatory and material because Sandoval’s initial description of the suspect and his vehicle did not match Souliotes or his vehicle. That allegation is insufficient without greater factual detail because at trial the jury learned that Sandoval’s initial description of the suspect and his vehicle did not match Souliotes or his vehicle, and she was cross-examined about those discrepancies. Thus, to infer that the allegedly suppressed evidence might have been material (i.e., might have changed the outcome of the trial), we would need to know something about the nature of the discrepancies revealed in the sketch and recording. Only then could we even begin to infer that possessing the sketch and recording would have allowed Souliotes’ counsel to mount a sufficiently more effective cross-examination of Sandoval, such that the outcome of the trial might have been different. The complaint is wholly devoid of the necessary factual allegations on this score.”
The opinion adds that because “the complaint does not plausibly allege either fabrication of evidence or suppression of material exculpatory evidence,” there is no need to “resolve whether Souliotes can satisfy the favorable termination clement of his claim.”
The case is Souliotes v. City of Modesto, 17-15277.
O’Neill Complains
In the course of the litigation, O’Neill complained of being overworked and made a plea for appointments to his district. In a June 29, 2016 order in the case, he said:
“Judges in the Eastern District of California carry the heaviest caseloads in the nation, and this Court is unable to devote inordinate time and resources to individual cases and matters. Given the shortage of district judges and staff, this Court addresses only the arguments, evidence, and matters necessary to reach the decision in this order. The parties and counsel are encouraged to contact the offices of United States Senators Feinstein and Boxer to address this Court’s inability to accommodate the parties and this action. The parties are required to reconsider consent to conduct all further proceedings before a Magistrate Judge, whose schedules are far more realistic and accommodating to parties than that of U.S. Chief District Judge Lawrence J. O’Neill, who must prioritize criminal and older civil cases.
“Civil trials set before Chief Judge O’Neill trail until he becomes available and are subject to suspension mid-trial to accommodate criminal matters. Civil trials are no longer reset to a later date if Chief Judge O’Neill is unavailable on the original date set for trial. Moreover, this Court’s Fresno Division randomly and without advance notice reassigns civil actions to U.S. District Judges throughout the nation to serve as visiting judges. In the absence of Magistrate Judge consent, this action is subject to reassignment to a U.S. District Judge from outside the Eastern District of California.”
As in 2016, there is one vacancy on the six-judge court.
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