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Woodworth v. Hulshof

United States District Court, W.D. Missouri, St. Joseph Division

March 10, 2017

MARK EUGENE WOODWORTH, Plaintiff,
v.
KENNETH HULSHOF, et al., Defendants.

          ORDER

          FERNANDO J. GAITAN, JR. United States District Judge.

         Pending 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.

         I. Background

         Plaintiff 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 Patrol).

         Following 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.

         II. Facts

         Catherine 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 Attorney.

         On 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.

         In June 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.

         Deister 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.

         At some 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.

         On September 16, 1992, Deister wrote a letter to Judge Lewis for Lyndel Robertson to attempt to get Doug Roberts to recuse himself as prosecutor.[1] 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).

         One 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 ¶ 7742.

         In 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 been prosecuted.
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.

         Lewis 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.

         Defendant 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.

         Defendant 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.[2] 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 ¶ 6118.

         Judge 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, ¶ 1.

         Judge 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 Lyndel Robertson.
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 experience.[3]
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 here.
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.

         Before 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 ...


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