On the afternoon of June 27, 1998, Lori Duniver discovered that her five-year-old daughter, Devan, was missing from her home in New Philadelphia, Ohio. The following day, Devan's body was found in a wooded area near her home. She had been stabbed seven times in the neck.
Captain Jeffrey Urban of the New Philadelphia Police Department... identified several "persons of interest" who might have killed Devan, including Devan's mother, Lori, who had recently called a suicide hotline to report that she was depressed and considering harming herself and her children; Lori's boyfriend, Jaimie Redmond, a drug addict and felon of whom Devan was afraid, who had previously kidnapped Devan for three days and beaten her with a belt, who may have been in the neighborhood of Devan's house at the time of her disappearance, who was later found in possession of an unexplained pack of children's playing cards, and whose alibi witness was later discovered to have given a false name and Social Security number to the police; Devan's father, Richard, a violent alcoholic who had recently complained about having to pay child support for Devan and who refused to help Lori search for Devan after Devan's disappearance, claiming to be too drunk to drive; Devan's brother, Dylan, who was described by several individuals as violent and who had recently stabbed a cat; and Harris, a twelve-year-old, African-American neighbor of the (Caucasian) Dunivan family.
Harris is the plaintiff in this lawsuit. Despite an apparent rogues gallery of other likely suspects, it was Harris who was brought to the police station and coerced into confessing to the murder. This confession came under the threat of severe punishment if he was found guilty without having made a confession, and was quickly recanted. More importantly, the confession was full of holes. Harris didn't know how many times Devan had been stabbed; he guessed two. He said there had been no blood, but a forensic expert testified that this was impossible, given the number and nature of the wounds. Like an episode of CSI played in reverse, the forensic evidence indicated the lack of any connection between the boy and the body, but prosecutor Linda Spies pressed ahead with the prosecution, and the court found Harris guilty on the strength of his confession alone - a result which was thrown out only after two years of juvenile confinement.
The first defamation issue arose on June 8, 2000, the day Harris was released from prison:
Spies held a press conference that day, at which she stated, "[F]rankly, in my heart and in my gut, I feel that Anthony Harris is responsible for the murder of Devan Duniver." No further charges were ever filed against Harris, and no one has since been arrested for or convicted of Devan's murder.
Following his release, Harris filed a civil suit against various parties-including Spies-in August 2003; in 2004, he applied to enlist in the Marine Corps,and disclosed that he had been convicted of murder, even thought that conviction had been overturned. When the Marines sent someone to ask Spies for documents concerning the matter, the second defamation issue arose:
When Brahen [that's our Marine] arrived in Spies's office and requested the documents, Spies reacted by saying, in a hostile tone of voice, "[A]re you fucking kidding me?" She asked Brahen to accompany her to a conference room, where she "proceeded to tell [him] a little bit about the case and what happened." She asked Brahen whether "the Marine Corps would actually take Anthony Harris into the Marines." Brahen became uncomfortable and asked Spies to speak with Baker on the telephone. Spies agreed and proceeded to inform Baker that Harris would always be a suspect in the murder of Devan Duniver because there were no other suspects.
This comment disrupted Harris' efforts to enlist (later news reports indicate that Harris was eventually able to join the Marines, and is now serving in Iraq), and was frankly an unadvisable step for Spies, already the target of a defamation suit by Harris.
Back to the civil suit, Spies sought both absolute and qualified immunity for her alleged role in the decision to arrest Harris (and her subsequent comments on the arrest, and to the Marines) and the district court held that she could get qualified immunity. The difference between qualified and absolute immunity in this case comes with the scope of the job - the prosecutor gets absolute immunity from the things she says while trying the case, even if she is flat-out maliciously lying; but she only gets qualified immunity for acts of an administrative or investigative manner. Spies wasn't trying the case when she held the press conference (she had already lost), and she certainly wasn't trying the case when she told the Marines that Harris would always be a suspect, and claimed there were no others. In fact, Spies position as a prosecutor worked against her in this case:
Under the circumstances in which it was made, Spies's statement at the press conference was a mixed statement of opinion sufficient to give rise to a defamation claim. Spies made the statement during the workday, in a public venue, during an appearance at which she was accompanied by her second-in-command in the county prosecutor's office. All of these elements combined to imply that her statement was based upon facts not known to the general public.
So, being the prosecutor in this case not only failed to protect Spies from liability, but created an appearance of special knowledge which bolstered the potential of the statement to defamate. A similar issue arises with the statement to the Marines:
The district court also erred in concluding that Spies's statements to the recruiters were true and thus could not constitute defamation. Spies's statement that Harris would always be a suspect because there are no other suspects is directly contradicted by Urban's deposition testimony.
Many of the news reports of the case seem to have glossed over what I thought was the single most damning thing the prosecutor was alleged to have said: that there were no other suspects. The facts reported by the court indicate that this was blatantly false, and surely cast Harris in a light much harsher than the facts allowed. The press conference statement may have been a bit of understandable puffery; but the latter half of the statement to the Marines does appear to have been an outright falsehood. If the court's recitation of the facts is correct, then the prosecutor in this case bit off quite a bit more than she could chew, and would have been wise to recuse herself from further dealings resulting from this case the minute the initial conviction was overturned - but especially in light of pending litigation.
But what separates this case from Western American Transportation, which I wrote about in my last blog, and in which the plaintiff's lawyer did receive qualified immunity? Probable cause. In Harris, the appellate court found the district court in error, because there was no probable cause for Spies to order the arrest of Harris in the first place. There was never enough suspicion for Harris to be questioned, and the confession was meaningless in light of the circumstances. A thoughtful prosecutor simply should have known better.
This case may turn out to have more than local importance. The ruling has been used as fodder in a local judicial campaign, and in a well-deserved self-congratulatory note to the lawyers from Baker Hostetler representing Harris. It certainly bespeaks caution with respect to the conduct of prosecutors outside the courtroom, and particularly in press conferences following acquittals.
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