Metropolitan News-Enterprise


Wednesday, February 13, 2019


Page 1


Ninth Circuit:

Man Entitled to Trial in Wrongful Imprisonment Case

Opinion Says Judge Real Erred in Deciding Disputed Facts, on City’s Motion For Summary Judgment, in Action by Man Incarcerated for Nearly 13 Years


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday revived a civil rights action by a man who was incarcerated for nearly 13 years in connection with a murder of which he was subsequently found by a judge to be factually innocent, decrying the action by District Court Judge Manuel Real of the Central District of California in deciding disputed facts on a motion for summary judgment.

A three-judge panel, in its memorandum decision, responded to a request by the plaintiff/appellant Marco Milla—who was convicted in 2002 of a slaying one year earlier, and later exonerated—that the case be re-routed, on remand, to another judge. While noting that such relief is granted only “in rare and extraordinary circumstances,” the panel obliged, declaring:

“Milla was wrongfully imprisoned for over a decade, and his claims were, and are. serious enough to warrant meaningful consideration. A decision at the summary judgement stage in a case such as this, without the benefit of a hearing or oral argument, raises real doubts as to the care with which Milla’s claims were examined. Therefore, on remand, we instruct the Chief Judge of the Central District of California to assign the case to a different district judge.”

Probable Cause

Real, now a senior judge, on Feb. 13, 2017, ordered judgment for the City of Los Angeles and Los Angeles Police Department Detective Richard H. Ulley. He said that underlying Milla’s civil rights action pursuant to 42 U.S.C. §1983 “are claims for malicious prosecution and unlawful imprisonment,” declaring:

“Because probable cause existed at the time of Plaintiff’s arrest and prosecution, both bases fail.”

Yesterday’s opinion says:

“While probable cause is a bar to claims of false imprisonment and malicious prosecution, the District Court erred in concluding that probable cause existed because it is a question for resolution by a jury where, as here, genuine disputes over material facts exist….Moreover, when determining probable cause to prosecute….Here, probable cause was based primarily on eyewitness identifications. Milla has raised genuine issues of material fact regarding the identifications including, inter alia, whether the detectives asked leading questions during the witness interviews, whether the witnesses’ earlier testimony contradicted later identifications, and whether the detectives failed to investigate Milla’s alibi.”

Photographic Display

Real rejected Milla’s contention that photographic displays were unduly suggestive, holding:

“The fact that Plaintiff appeared in multiple displays does not automatically deem the photographic identification process unduly suggestive….

“Furthermore, Plaintiff’s claim that the photographic identification process was tainted because the Detectives failed to include photographs of all possible suspects likewise fails.”

The judge erred, the Ninth Circuit opinion says, because “genuine issues of material fact existed regarding the identifications.” It cites the U.S. Supreme Court’s 1982 decision in Sumner v. Mata, as requiring that juries determine “whether the witnesses in this case had an opportunity to observe the crime or were too distracted; whether the witnesses gave a detailed, accurate description; and whether the witnesses were under pressure from [government] officials or others are all questions of fact.”

The opinion also says that Real erred in dismissing Detective John Vander Horck, utilizing the wrong standard, but agrees with his determination that the prosecution did not wrongfully withhold evidence from the defense.

Remuneration From State

The State of California has paid Milla $654,500 for his 4,675 days—12.8 years—of incarceration, including 425 days in jail following his Oct. 24, 2001 arrest and prior to entering state prison.

He was charged with, and convicted of, one count of murder and five counts of attempted murder in connection with a Sept. 29, 2001 gang shooting.

In 2010, the United States Department of Homeland Security, which had been probing activities of gangs, advised the Office of Los Angeles County District Attorney did it had information from a reliable informant that Milla had not been present at the crime scene. His petition for a writ of habeas corpus was granted on June 23, 2014; Milla was released on Aug. 11, 2014; and a petition for a declaration of actual innocence was granted on Jan. 13, 2016.

The case is Milla v. City of Los Angeles, 17-55330.


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