Harris v. Tioga Cnty.

663 F.Supp.3d 212

Calvin HARRIS, Plaintiff, v. TIOGA COUNTY, Former Tioga County District Attorney Gerald Keene, New York State Police Investigator Steven Andersen, New York State Police Investigator Susan Mulvey, and Barbara Thayer, Defendants.

3:17-CV-932

United States District Court, N.D. New York

Signed March 23, 2023

ALEXANDER R. KLEIN, ESQ., BRUCE A. BARKET, ESQ., DONNA ALDEA, ESQ., BARKET EPSTEIN & KEARON ALDEA & LOTURCO, LLP, Attorneys for Plaintiff Calvin Harris, 666 Old Country Road, Suite 700, Garden City, NY 11530.

MOLLY M. RYAN, ESQ., GOLDBERG, SEGALLA LAW FIRM, Attorneys for Defendants Tioga County and Gerald Keene, 5786 Widewaters Parkway, Syracuse, NY 13214.

HON. LETITIA JAMES, ADRIENNE J. KERWIN, ESQ., COLLEEN D. GALLIGAN, ESQ., LAUREN ROSE EVERSLEY, ESQ., Ass't Attorneys General, New York State Attorney General, Attorneys for Defendants Steven Andersen and Susan Mulvey, The Capitol, Albany, NY 12224.

MATTHEW C. BUTLER, ESQ., DAVID E. BUTLER, ESQ., BUTLER, BUTLER LAW FIRM, Attorneys for Defendant, Barbara Thayer, 231-241 Main Street, Vestal, NY 13850.

DECISION and ORDER

DAVID N. HURD, United States District Judge

TABLE OF CONTENTS

I. INTRODUCTION . . . 221

II. BACKGROUND . . . 223

III. LEGAL STANDARD 231

IV. DISCUSSION 231

A. Preliminary Issues . . . 232

1. Abandoned Claims . . . 232

2. Investigator Lester . . . 232

3. The Does . . . 233

4. The DA's Office . . . 233

B. Remaining Claims . . . 233

1. Malicious Prosecution (Counts One and Nine) . . . 233

i. Timeliness . . . 234 ii. The Merits . . . 237

a. State Defendants . . . 237

b. County Defendants . . . 239

2. Fabrication of Evidence (Count Two) . . . 241

i. State Defendants . . . 242

ii. County Defendants . . . 243

iii. Ms. Thayer . . . 243

3. Conspiracy (Count Five) . . . 244

4. Municipal Liability (Count Seven) . . . 245

C. Qualified Immunity . . . 245

V. CONCLUSION . . . 246

I. INTRODUCTION

On September 12, 2001, just after 7 o'clock in the morning, Barb Thayer, the family's babysitter, made a short drive over to the Harris's house to help get the kids off to school. When she arrived at the foot of the property's long driveway, Ms. Thayer discovered Michele Harris's van abandoned near the gated entrance. The keys were in the ignition. But Michele was nowhere to be found. And she has not been seen since.

Michele's mysterious disappearance was reported to law enforcement later that day. Suspicion immediately fell on her husband, Calvin. Although the couple still shared a home with their four children, they were in the middle of a contentious divorce. And Calvin, a prominent local businessman, stood to lose a lot of money in the breakup.

With this working theory of a motive, State Police dug into the prospect of Calvin's involvement in Michele's disappearance. Their initial search turned up scant physical evidence. And four additional years of official scrutiny into Calvin's life produced little else. Police eventually resorted to some deceptive tactics in the hopes that Calvin might incriminate himself. But nothing ever broke the case open. They never located a murder weapon. Or even a body.

With their leads exhausted and the case gone cold, investigators pressured the local District Attorney to move forward anyway. In the spring of 2005, the DA presented what he had to a grand jury, which voted to indict Calvin for Michele's murder. But it soon became clear that the investigators didn't have much to show for four years of work—the murder charge was thrown out by the trial court when it came to light that the indictment relied on the DA's "intentional" presentation of speculative, inadmissible opinion testimony about the state of the Harris's marriage and pending divorce.

Investigators ran back to the drawing board. In February of 2007, the same District Attorney convinced a newly empaneled grand jury to return a second murder indictment. This time around, though, the grand jury heard some different evidence. According to Calvin, this change in the proof was the product of official misconduct: the prosecutor had conspired with the lead investigator and others to coerce key witnesses into changing their stories to better fit the murder narrative. What's more, Calvin says, they conspired to fabricate or manipulate crucial physical evidence, too.

Misconduct or no, a trial jury finally heard the case and voted to convict Calvin for Michele's murder. But right after the verdict, a local farmer came forward to say that he'd seen Michele and an unidentified man—a man who was definitely not Calvin—standing in the driveway of the Harris's property just after daybreak on the morning she disappeared. The farmer's testimony, if believed, would have blown up the prosecution's timeline of the supposed murder and subsequent cleanup. So Calvin was granted a new trial.

With the benefit of the farmer's testimony, a second jury heard the case and also voted to convict. Calvin began a lengthy prison sentence. On direct appeal, the Appellate Division reviewed the conviction and affirmed. Sure enough, though, the proof that seemed to support the verdict overlapped with the evidence that Calvin would later claim was fabricated.

Eventually, the Court of Appeals vacated the conviction on other grounds and ordered a new trial. By the time the case came back down to Tioga County for renewed proceedings, four more years had passed. A national media frenzy had come and gone. The lead investigator had retired. And the DA had leveraged his high-profile victory into a seat on the county bench.

Re-starting the case from scratch took just over a year of preparation. A third trial in a neighboring county with a new prosecutor ended with a hung jury. The case was re-tried to the bench a year later. That trial—the fourth, for those keeping score—ended in an acquittal on May 24, 2016.

Calvin claims he'd finally been able to show the fact-finder what his own private investigators had learned: that law enforcement had fabricated the evidence used to convict him. In fact, they were so busy doctoring the proof that they'd failed to take a good look at the two out-of-towners who'd been hanging around with Michele at the time of her disappearance.

On August 22, 2017, Calvin Harris filed this 42 U.S.C. § 1983 action alleging that defendants Tioga County (the "County"), the County District Attorney's Office (the "DA's Office"), former County District Attorney Gerald Keene ("DA Keene") (collectively the "County defendants"), New York State Police Investigators Susan Mulvey ("Senior Investigator Mulvey"), Steven Andersen ("Investigator Anderson"), Mark Lester ("Investigator Lester") (collectively the "State defendants"), along with Barbara Thayer, the family's former babysitter ("Ms. Thayer"), conspired with each other to maliciously prosecute him on the basis of false and fabricated evidence.

The ten-count complaint asserts § 1983 claims for malicious prosecution (Count One), fabrication of evidence (Count Two), a failure to investigate (Count Three), the suppression of evidence (Count Four), conspiracy (Count Five), supervisory liability (Count Six), municipal liability (Count Seven), and defamation (Count Eight) as well as related state law claims for malicious prosecution (Count Nine) and infliction of emotional distress (Count Ten).

On October 5, 2017, the County defendants moved under Federal Rule of Civil Procedure ("Rule") 12(e) for a more definite statement of plaintiff's claims. Dkt. No. 14. That motion was denied on August 19, 2019. Harris v. Tioga County, 2019 WL 3890994 (N.D.N.Y.). Thereafter, the parties completed a relatively uneventful period of discovery. The exception was a dispute over whether non-party witness attorney Betty Keene should be compelled to answer certain deposition questions about communications she had with Michele during the divorce case. Dkt. No. 68. After briefing and argument, U.S. Magistrate Judge Thérèse Wiley Dancks denied plaintiff's motion to compel. Dkt. No. 77. Plaintiff appealed but this Court affirmed on July 16, 2021. Harris v. Tioga County, 2021 WL 3022052 (N.D.N.Y).

On June 2 and June 3, 2022, the County defendants, the State Police defendants, and Ms. Thayer each moved separately for summary judgment on plaintiff's various claims. Dkt. Nos. 97, 100, 101. Those three motions were fully briefed. Dkt. Nos. 110, 115, 117, 118, 119. Oral argument was heard on January 12, 2023 in Utica, New York. Decision was reserved.

II. BACKGROUND¹

Calvin wed Michele on September 29, 1990. The couple soon welcomed four children into their lives. The family lived together at 381 Hagadorn Hill Road, a 200-acre estate in rural Spencer, New York. The property featured a long, gently curving driveway that ran up to the residence itself, which sat in the woods near the edge of Empire Lake.

On January 17, 2001, Michele filed for a divorce on the statutory grounds of "cruel and inhuman treatment." Ex. A at 2.² She hired a local attorney by the name of Robert Miller. He hired Betty Keene, another local lawyer, to help him out. Attorney Keene met with Michele, talked with her about the divorce proceedings, and helped prepare some filings in the case.

Attorney Keene is relevant to this story for two reasons. First, she is the wife of DA Keene, who presented the murder case to the grand juries and prosecuted Calvin at the first two trials. Second, attorney Keene took notes of her meetings with Michele. Attorney Keene's notes describe an instance in which Michele recounted being pushed to the ground during an argument with Calvin. Ex. F at 3. Michele reported to attorney Keene that when this happened, she "cut her hand on the ice," which "caus[ed] it to bleed." Id.

As the description of this event might suggest, the couple's separation and divorce proceedings were contentious. The marriage had been in trouble for a while. Both parties had been unfaithful. Michele's decision to file for the divorce had sparked arguments, and there were accusations that some of...