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Ninth Circuit:
Suit Alleging Officers Framed Woman for Murder May Proceed
Defendant Was in Prison for More Than Seven Years; Then-Detective, Now Chief of Police, Accused of Setting Her Up
By a MetNews Staff Writer
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Depicted is Kimberly Long, convicted in 2005 of second-degree murder, with the judgment ordered vacated in 2020 by the California Supreme Court in granting a petition for a writ of habeas corpus based on ineffective assistance of counsel. The Ninth U.S. Circuit Court of Appeals on Monday held that a District Court judge properly denied qualified immunity to five individual defendants who, Long alleges, as members of the Corona Police Department, suppressed potentially exculpatory evidence and otherwise caused her to be wrongfully convicted. |
The Ninth U.S. Circuit Court of Appeals has found no entitlement to qualified immunity on the part of four former members of the City of Corona Police Department and the current chief of police who have been sued by a woman who was imprisoned for more than seven years for the second-degree murder of her boyfriend/co-habitant, gaining her release after the California Supreme Court ordered her conviction vacated based on ineffectiveness of her trial counsel.
Monday’s memorandum decision affirms rulings on July 17, 2024, by District Court Judge Fred W. Slaughter of the Central District of California. Signing the opinion were Circuit Judges Anthony S. Johnstone, Salvador Mendoza Jr., and Kim Wardlaw.
At issue was whether constitutional rights which the officers are alleged by the plaintiff to have violated were “clearly established” as of Oct. 6, 2003—the date on which the victim, Oswaldo Conde, was found, slain. Plaintiff Kimberly Louise Long maintains in her first amended complaint (“FAC”) that the individual defendants framed her.
Her version of the facts is that when she came home in the early morning hours, she found Conde’s dead body and, shocked, phoned 911. She disavows any complicity in the crime and points the finger at two others who were eliminated as suspects: her jealous ex-husband and Conde’s former girlfriend against whom Conde was seeking a restraining order based on her threats.
One defendant in Long’s suit is Robert Newman, a detective in 2003, now chief of police in Corona, a city in Riverside County. The others Long sued, along with the city, are Thomas Weeks who, at the time of the investigation, was the detective in charge of the homicide unit; Ronald Anderson, then a senior detective; Daniel Bloomfield, a detective in those days; and Daniel Verdugo, who was an evidence technician.
Alleged Brady Violations
All five defendants are accused by Long of suppressing potentially exculpatory evidence in violation of the U.S. Supreme Court decision in Brady v. Maryland, handed down 40 years earlier.
The Ninth Circuit judges wrote that “Long alleged facts sufficient to show that Bloomfield, Anderson, and Newman violated Brady when they interviewed a key witness”—Conde’s ex-girlfriend, Shaina Lovejoy—“about her alibi prior to the witness’s polygraph examination but then suppressed the witness’s statements about her alibi ‘so that they could not be used by Long’s defense.’ ”
When police arrived at Long’s home, they found blood on every wall of the living room. Allegedly suppressed by Anderson and Weeks was that Long’s jacket, found on a rug next to Conde’s body, had no blood on it.
The judges declared:
“And Long alleged facts sufficient to show that Anderson, Newman, and Verdugo violated Brady by suppressing key physical evidence that, if tested, would have shown that other individuals had been present with Conde at the time of the crime.”
The physical evidence was comprised of a champagne bottle and cup.
Aside from the suppression of that evidence constituting a Brady violation, Long averred, destruction of it gives rise to a separate claim. The judges said that “by 2003, it was clearly established that a bad-faith failure to preserve or collect potentially exculpatory evidence was a constitutional violation.”
Malicious Prosecution Asserted
The opinion goes on to say:
“Long’s allegations regarding Defendant Officers’ conduct with respect to her due-process claims sufficiently allege the elements of a malicious-prosecution claim….Long has sufficiently alleged that she is ‘not guilty of the offense charged and that the proceedings have terminated in favor of the accused.’…And by 2003, the law prohibiting malicious prosecution was clearly established.”
It also sets forth:
“Weeks is not entitled to qualified immunity on Long’s fabrication-of-evidence claim. Long alleged facts sufficient to show that Weeks deliberately fabricated evidence and caused Long’s deprivation of liberty by pressuring and manipulating multiple witnesses into creating a timeline that implicated Long….And by 2003, the right not to be subjected to criminal charges on the basis of deliberately fabricated evidence was ‘clearly established.’ ”
Two Trials
Long’s first trial took place in 2015, and the jury was deadlocked. A second trial took place later that year and she was convicted.
At both trials, her lawyer was Eric Keen—now a judge of the Riverside Superior Court—and presiding was then-Riverside Superior Court Judge Patrick F. Magers, now retired. Magers sentenced Long to 15 years-to-life in prison.
In 2015, the California Supreme Court, in response to a habeas petition, ordered the Riverside Superior Court to show cause why relief should not be granted based on ineffective assistance of counsel in light of Keen not having secured the services of a time-of-death expert and other omissions alleged by Long. Magers, sitting on assignment, took testimony, including that of Keen who said that he viewed time-of-death evidence as needless because, in light of the uncertainty of expert estimates, it would not necessarily have been exonerating.
Magers granted the writ, though finding that Long had not shown actual innocence. Div. Two of the Fourth District Court of Appeal, on May 3, 2018, reversed, concluding that “Keen provided effective assistance.”
The California Supreme Court on Nov. 30, 2020, in a unanimous opinion authored by Justice Goodwin H. Liu, reversed the Court of Appeal’s judgment, saying that Keen’s “failure to investigate the victim’s time of death was objectively unreasonable and prejudicial to Long’s defense.”
The office of Riverside County District Attorney Michael A. Hestrin on April 22, 2021, announced that it would not retry the woman, explaining, “in part due to the lengthy passage of time since the murder and the deaths of key witnesses, …we can no longer prove the case beyond a reasonable doubt to a jury.”
The California Victim Compensation Board on Sept. 15, 2022, granted Long compensation in the amount of $386,400 based on $140 per day for the 2,760 days she was incarcerated. She was out on bail pending her appeal.
Monday’s decision comes in Long v. Weeks, 24-4427.
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