In Park v. Thompson, published March 14, 2017, a divided 9th Circuit panel reversed a district court order dismissing a 42 U.S.C. section 1983 suit against a police detective. The plaintiff was accused of murder. Her defense included a theory that another person was the murderer. She planned to call as a defense witness the girlfriend of the man she alleged was the murderer. The witness told the defendant's investigator she would testify that the man had become violent when the witness accused him of the murder, and would choke the witness while telling her that this was what the victim felt like. The defendant gave the prosecution notice of the witness. The police detective spoke with the witness. She admitted she did so not to investigate. She told the witness that the man (who had physically abused the witness in the past) was "really upset" about the witness's planned testimony. She also allegedly misrepresented the strength of the evidence against the plaintiff, and told the witness she did not have to talk to anyone. The detective allegedly advised another police department to file charges against the witness before she testified, and allegedly as a result the DA filed charges against her before the plaintiff's trial. The witness appeared at the trial under subpoena. The prosecutor advised the witness's attorney to advise her to assert the Fifth Amendment. The witness did so. The judge barred any evidence of the third-party culpability theory. The plaintiff was acquitted anyway.
The panel majority held that the plaintiff had stated a claim against the detective for violation of her rights under the Sixth Amendment Compulsory Process Clause and the Fourteenth Amendment Due Process Clause. The detective's alleged conduct amounted to substantial government interference with a defense witness. The conduct allegedly caused the witness not to testify. And the witness's testimony would have been favorable and material to the plaintiff's defense. That she was acquitted anyway did not render the testimony immaterial, because the detective's conduct allegedly deprived the plaintiff of her entire theory of third-party culpability. She was therefore deprived of a fair trial despite being acquitted. The majority also concluded that the plaintiff's allegations about the filing of the charges against the witness sufficiently alleged plausible facts supporting a conspiracy claim under section 1983.
One judge concurred in part and dissented in part. The judge opined that the plaintiff had alleged insufficient facts to plausibly support a theory that the detective had threatened the witness or caused the witness not to testify.
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