United States District Court, W.D. Missouri, St. Joseph Division
FERNANDO J. GAITAN, JR. United States District Judge.
before the Court are (1) Defendant Kenneth Hulshof's
Motion for Summary Judgment (Doc. No. 225); and (2) Defendant
Judge K. Lewis' Motion for Summary Judgment (Doc. No.
238). Both motions are considered below.
filed the instant case on August 11, 2014. Plaintiff
originally named 17 defendants, including both state actors
and private individuals. In plaintiff's First Amended
Complaint (Doc. No. 35, filed on November 14, 2014),
plaintiff alleges generally that he was twice wrongfully
convicted of the murder of Catherine Robertson and other
offenses in Missouri state courts, and the defendants in this
matter conspired with one another to conduct a sham
investigation, fabricate false evidence, and suppress
exculpatory evidence for many years, resulting in plaintiff
spending nearly 18 years in prison. In July 15, 2014,
following successful habeas proceedings, all charges against
plaintiff were dropped. Plaintiff's First Amended
Complaint brings suit against 16 named defendants: (1) Lyndel
Robertson (a former farming partner of plaintiff's
father, husband of the murder victim, and who was also shot
three times in the face and once in the right shoulder on the
night of the murder); (2) Rochelle (Robertson) Koehly
(daughter of Lyndel Robertson); (3) Brandon Patrick Hagan
(a/k/a Brandon Patrick Thomure, former boyfriend of Rochelle
Koehly); (4) Kenneth Lewis (former State of Missouri Circuit
Judge of the 43rd Judicial Circuit); (5) Gary
Calvert (former Deputy Sheriff for Livingston County,
Missouri); (6) Terry L. Deister (a private investigator hired
by Lyndel Robertson to investigate the murder, and a friend
of Gary Calvert); (7) R. Brent Elliott (former prosecuting
attorney of Livingston County, Missouri, personal attorney to
Kenneth Lewis, and represented the Livingston County Juvenile
office in certifying plaintiff as an adult); (8) Kenneth
Hulshof (former employee of the Missouri Attorney General,
special prosecutor appointed to plaintiff's first trial);
(9) John Williams (former employee and farming partner of
Lyndel Robertson); (10) David Miller (a police officer and
member of the Chillicothe Missouri Police Department); (11)
the Livingston County Sheriff's Department; (12)
Livingston County; (13) the City of Chillicothe Police
Department; (14) the City of Chillicothe; (15) Rachel Smith
(prosecuting attorney at plaintiff's second trial) and
(16) Jenny Smith (a member of the Missouri State Highway
the Court's orders on various plaintiffs' motions to
dismiss, as well as stipulations of dismissal filed by
various parties, the only remaining defendants in this case
are the estate of Judge Kenneth Lewis (who died in 2016) and
Kenneth Hulshof. The following claims remain pending against
Lewis and Hulshof: Count I, 42 U.S.C. § 1983,
Destruction and/or Suppression of Exculpatory Evidence, under
the 5th and 14thAmendments; and Count
IV, 42 U.S.C. § 1983 Conspiracy to Deprive
Constitutional Rights. Defendant Hulshof argues that (1) the
allegations made against him in the complaint lack admissible
evidence; (2) even if there were admissible evidence, he is
entitled to absolute prosecutorial immunity as to his
preparations and presentation of evidence before the grand
jury and during Woodworth's first trial; and (3) as to
the limited communications between Judge Lewis and him in the
two-day period before Hulshof being appointed special
prosecutor, those communications did not violate the
14th Amendment and he is entitled to qualified
immunity as to those communications. Defendant Lewis argues
that (1) the allegations made against him lack admissible
evidence; and (2) even if material disputes of fact existed,
he is entitled to absolute judicial immunity and/or qualified
immunity as to the allegations made by plaintiff.
and Lyndel Robertson were shot November 3, 1990; Catherine
died shortly after being shot, but Lyndel Robertson survived.
Judge Kenneth Lewis was the presiding judge for the
43rd Judicial Circuit (where the shooting
happened) from approximately 1982 to 2000. At the time of the
shooting, Doug Roberts was Livingston County Prosecuting
November 21, 1990, eight days after her parents were shot,
Rochelle Robertson filed an adult abuse petition against
Brandon Thomure (her ex-boyfriend) in the Circuit Court of
Livingston County. She alleged that Brandon hit her in the
past and had made “frequent harassing telephone calls
to me since November 1st.” She claimed she was afraid
of Brandon because “he may have murdered my mother and
attempted to kill my father on November 13th.” The
court granted the petition and entered an order of protection
against Brandon Thomure. Brent Elliott, a local attorney,
represented Rochelle Robertson in the adult abuse proceeding.
Immediately after the shootings Lyndel Robertson was adamant
that Brandon Thomure be prosecuted for the crimes; however,
it appears he changed his mind at some later time.
1991, Lyndel Robertson hired Terry Deister as a private
investigator to investigate the Robertson shooting. Deister
also assisted Robertson in relation to a civil lawsuit Claude
Woodworth (plaintiff's father) had filed against him
regarding the dissolution of their farming partnership. Gary
Calvert, a deputy sheriff of Livingston County, agreed to
work with Deister on the investigation of the shooting and
they agreed to keep Deister's involvement a secret from
Sheriff Leland O'Dell.
regarded plaintiff Mark Woodworth as the prime suspect as
soon as he got involved in the investigation. During his
first meeting with Calvert, Deister asked what focus had been
given to Mark Woodworth, and Calvert replied almost none.
Deister proposed shifting the focus of the investigation to
Mark Woodworth, and Calvert agreed. Deister had the
investigators “assume” that evidence which
implicated a suspect other than plaintiff “did not
exist, ” thereby opening up the possibility of pursuing
plaintiff. Plaintiff asserts that Brent Elliott, who served
as Judge Lewis's personal attorney on an unrelated legal
issue in 1990, served as a consultant to the private
investigation led by Deister. It appears from Deister's
testimony that he talked to Elliott on a number of occasions;
however, the substance of those conversations is not apparent
from the record. See Doc. No. 242, Ex. 7, MW
7847-7855, 7903 (indicating that Elliott was not “paid
counsel” for the investigation; however, Deister
indicated that he had a “confidential
relationship” with Elliott, Ex. 7 at ¶ 7904)).
Deister did not contact Doug Roberts for advice because
Lyndel Robertson and Gary Calvert believed Roberts did not
know what he was doing.
time prior to Plaintiff Woodworth being charged, Lyndel
Robertson stopped by the Livingston County Prosecuting
Attorney's office to see how the case was going and spoke
to prosecutor Doug Roberts. Robertson testified that Roberts
told him that there was not sufficient evidence to go forward
with charges against Mark Woodworth and that he was not going
to pursue charges against him. Calvert and Deister told
Robertson that they needed to get a special prosecutor
because Doug Roberts couldn't handle the job.
September 16, 1992, Deister wrote a letter to Judge Lewis for
Lyndel Robertson to attempt to get Doug Roberts to recuse
himself as prosecutor. Doc. No. 242, Ex. 7 (testimony of
Deister), at ¶ 7847; Ex. 13 (testimony of Robertson), at
¶ 7975. Robertson read and approved the letter. Doc. No.
242, Ex. 7, at ¶ 7848-49. In that unsigned letter, Mr.
Robertson described the details of the shooting: The incident
occurred “[a]t approximately midnight November 13, 1990
while my wife Cathy and myself and our four children were
asleep inside our home, … someone entered our home
shooting both my wife any myself.” Cathy Robertson
“was shot twice and apparently died without
waking.” Robertson stated that he “didn't
realize we were being shot” and “only
remember[ed] looking at [his] wife and seeing blood all over
her” and “feeling terrible.” Robertson
further stated that he had hired Terry Deister as a private
investigator to assist Gary Calvert of the Livingston County
Sheriff's Department in the investigation of the shooting
of himself and his wife. The letter further stated that
through the “combined efforts” of Deister and
Calvert “a suspect was developed” and alluded to
rumors that his “business partner was a suspect in this
murder case.” He also made derisive comments about
Livingston County Prosecutor Doug Roberts. See Doc.
No. 242, Ex. 15 (unsigned letter dated September 16, 1992).
year later, Deister prepared another letter to Judge Lewis
for Lyndel Robertson that criticized Roberts and urged Lewis
to convene a grand jury. In that letter, dated September 24,
1993, Mr. Robertson stated in full:
After talking to Prosecuting Attorney Doug Roberts, I feel he
should be released of his duty in my particular case.
I feel he is not giving this case his full attention. Gary
Calvert and my private investigator have spent countless man
hours on this case. All the evidence was compiled and
presented to Doug Roberts in written reports in July of 1993.
It is now going on two (2) months since he received this and
he has not been in touch with me as promised. I know Mr.
Roberts does not feel that this case is any more important
than any other case he has in front of him, as he clearly
stated in his letter to me dated July 27, 1993, which I
received after I personally spoke with him in his office.
This has be [sic] a constant disruption in my life since
November of 1990 when it all started. My children and I would
like to be able to put this bad memory in the back of our
minds, knowing the law had done everything in their power.
Until this time, I do not feel justice has been served and my
life is at a standstill.
I am pleading with you to act upon this, within your power,
to have this case presented before a Grand Jury.
Doc. No. 292, Ex. 3. After receiving the September 24, 1993,
letter from Robertson, Judge Lewis summoned Doug Roberts to
his office and handed him a copy of the letter. Ex. 7, at
response, in a letter dated October 5, 1993, Doug Roberts
wrote to Judge Lewis in regards to the Robertson matter,
stating in full:
It has come to my attention that the complaining witness in
this matter has requested you disqualify me for “lack
of enthusiasm”. Mr. Robertson confuses my desire to
make a thorough review of all the reports in this case with a
lack of enthusiasm. I can understand his frustration, but
recall that soon after this crime, Mr. Robertson was adamant
that we charge another young man. Had his decision been
rubber-stamped by this office, an innocent person might have
A “lack of enthusiasm” is not grounds to seek,
nor order, the disqualification of a prosecuting attorney.
For me to accede to his request invites the establishment of
a dangerous precedent. However, I recognize that cases of
this magnitude may justify unique approaches.
The appropriate disposition of this matter requires that the
prosecuting official have the confidence of, as well as
confidence in, the complaining witness. This I do not have.
Therefore, I disqualify myself in this matter and
respectfully request you appoint the office of the Attorney
General to represent the State of Missouri.
Doc. No. 226, Ex. C, p. 4.
testified in 2011 in relation to Plaintiff Woodworth's
post-conviction proceedings that that Roberts “was
wrong” to conclude that there was insufficient evidence
to proceed to a grand jury against Mark Woodworth, given that
two juries had found Woodworth guilty beyond a reasonable
doubt and a grand jury found him guilty by probable cause.
Ex. 1, at ¶ 3198. On October 7, 1993, Lewis convened a
grand jury to investigate the murder of Catherine Robertson
and assault of Lyndel Robertson. Lewis was prompted to bring
about a grand jury inquiry based on Lyndel Robertson's
September 24, 1993, letter.
Hulshof testified that after receiving the October 5, letter
from Roberts, Defendant Judge Lewis initiated a phone call to
the Office of the Attorney General and AAG Hulshof was asked
by his secretary if he would take that call. Hulshof
testified that during the phone call, Judge Lewis asked how
cases were assigned and AAG Hulshof advised Judge Lewis that
case assignments were made on a rotation between him and
another assistant attorney general. Doc. No. 226, Ex. H, pp.
12:24 to 13:8; p. 17:15-25. During the conversations between
Lewis and Hulshof before the Attorney General's Office
was appointed special prosecutor, Lewis discussed the fact of
this case with Hulshof and expressed his desire for Hulshof
to handle the case. Doc. No. 242, Ex. 1, at ¶ 3183-84;
Ex. 2, at ¶ 6110-11. Specifically, Hulshof testified
that Judge Lewis indicated during the phone call that he
would prefer AAG Hulshof to take the case because Mr. Hulshof
had spent time in Livingston County on previous criminal
matters and was familiar with local law enforcement
officials. Doc. No. 226, Ex. H, p. 13:9-13.
Hulshof provides an affidavit he had no specific knowledge of
the case or any discussion with law enforcement officials
about the crime or any investigation before he received the
assignment from Jack Morris, the unit chief for the Criminal
Division within the Office of the Missouri Attorney
General. Doc. No. 226, Ex. N, ¶¶ 1, 5-6.
Hulshof testified that Judge Lewis also mentioned during the
October 5 phone call that the Robertson shootings occurred on
November 13, 1990, and there was some discussion about
soon-to-expire statutes of limitation which might apply, but
not with the detail set out in Judge Lewis's October 7,
1993 letter. Doc. No. 226 (Ex. C); Ex. H, pp. 15:22 to 16:10;
17:7-25. AAG Hulshof testified he recalled no other
discussions with Judge Lewis before Hulshof presented
evidence before the grand jury. Ex. H, pp. 24:23 to 25:1.
Plaintiff notes, however, that Lewis via letter to Hulshof
stated he had various conversations with Hulshof regarding
the case. Doc. No. 226, Ex. C-1; Doc. No. 242 Ex. 2, at
Lewis issued an order on October 7, 1993, appointing the
Office of the Missouri Attorney General as special prosecutor
in connection with the Robertson shootings. Doc. No. 226, Ex.
C, p. 3. Hulshof's affidavit provides that Kenneth
Hulshof was selected by Assistant Attorney General Jack
Morris and assigned as the special prosecutor by the Office
of the Missouri Attorney General. Doc. No. 226, Ex. N, ¶
Lewis sent a letter on October 7, 1993, to defendant Hulshof.
In Judge Lewis' letter of October 7th, he enclosed a copy
of his order appointing the Office of the Attorney General
appointed special prosecutor. Ex. C, p. 3. Judge Lewis also
attached to his October 7th letter to Mr. Hulshof a copy of
Livingston County prosecuting attorney Doug Roberts'
October 5th letter disqualifying himself. Id. at p.
4. Lewis's letter also enclosed Mr. Robertson's
September 24, 1993, letter to Lewis. Doc. No. 242, Ex. 3, at
¶ 2993. (These three letters, dated September 24, 1993,
October 5, 1993, and October 7, 1993, are collectively known
as the “Lewis Letters.) Judge Lewis' October 7,
1993 letter to Hulshof states, in full:
In accordance with our various telephone conversations, I am
enclosing a certified copy of Order Appointing Special
Prosecuting Attorney whereby I have appointed the Office of
the Attorney General to prosecute the case involving the
murder of Catherine J. Robertson and the felonious assault on
I convened a grand jury in Livingston County this morning. I
enclose a copy of a letter from the surviving victim dated
September 24, 1993, which prompted me to bring about a grand
jury inquiry. Also enclosed is a copy of Mr. Roberts'
letter of October 5, 1993, disqualifying himself in the
matter, albeit in a rather roundabout manner.
To say that Doug Roberts has been uncooperative would be a
monumental understatement. He boycotted the grand jury
proceedings this morning, which is simply unheard-of in my
As we had discussed, I recessed the grand jury until Friday,
October 15, 1993, at 10:00 a.m. when you said you could be
One final point, the incident in question occurred on
November 13, 1990. Therefore, the statute of limitations will
run in just over a month on the felonious assault, burglary
in the first degree and armed criminal action charges. This
was another reason that I felt we could wait no longer for
Mr. Roberts to act.
I wish to express my sincere thanks to your office for
agreeing to take on this case. Please let me know if there is
any other information which you may need at this time.
Doc. No. 226, Ex. C, pp. 1-2.
appearing at the grand jury, Hulshof reviewed the
investigative file. Hulshof understood that Roberts had no
desire or intention to present the case to the grand jury and
that Lyndel Robertson was an “insistent victim”
who was “very adamant that his case go forward.”
Hulshof did not speak with Doug Roberts about the case at any
time, and did not know what evidence law enforcement
officials or Mr. Robertson had provided to Doug Roberts.
Prior to the grand jury proceeding, Hulshof knew that Deister
was a private investigator working for Mr. Robertson and that
Deister had been involved in the criminal investigation. This
was the only case Hulshof prosecuted where the victim had
hired a private investigator, a circumstance Hulshof
recognized was “pretty unusual.” Hulshof
testified that “there are a number of issues that could
be raised by having non-law enforcement involved in a
criminal matter.” Doc. No. 242, Ex. 13, at ¶ 8160.
Hulshof understood that one of ...