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Park v. Thompson

United States Court of Appeals, Ninth Circuit

March 14, 2017

Kelly Soo Park, Plaintiff-Appellant,
Karen Thompson, Defendant-Appellee.

          Argued and Submitted October 4, 2016 Pasadena, California

         Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding D.C. No. 2:14-cv-00330-SJO-RZ

          Becky S. James (argued) and Jessica W. Rosen, James & Stewart LLP, Pacific Palisades, California, for Plaintiff-Appellant.

          Anthony P. Serritella (argued), Deputy City Attorney; Marsha Jones Moutrie, City Attorney; Jeanette Schachtner, Chief Deputy City Attorney; Santa Monica City Attorney's Office, Santa Monica, California, for Defendant-Appellee.

          Before: Stephen Reinhardt, Ferdinand F. Fernandez, and John B. Owens, Circuit Judges.


         Civil Rights

         The panel reversed the district court's dismissal of a complaint and remanded in an action against City of Santa Monica Police Detective Karen Thompson and Doe defendants alleging defendants violated and conspired to violate plaintiff's right to compulsory process and a fair trial by intimidating and attempting to dissuade a key witness from testifying on behalf of the defense.

         The panel held that plaintiff adequately alleged misconduct by Thompson that rose to the level of substantial interference with a defense witness in contravention of the Compulsory Process Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment. The panel further held that plaintiff adequately pleaded that Thompson's misconduct caused the witness to refuse to testify. The fact that plaintiff was eventually acquitted did not render the witness testimony immaterial, nor did it bar plaintiff's Section 1983 action stemming from violations of her rights during the underlying criminal investigation and prosecution. The panel concluded that the witness's testimony was material to plaintiff's defense because evidence of third-party culpability would have cast some doubt on the government's evidence at plaintiff's trial. Finally, the panel held that plaintiff pleaded sufficient facts to state a plausible claim for civil conspiracy under Section 1983.

         Concurring in part and dissenting in part, Judge Fernandez stated that the complaint's mere general pleading that there was some sort of nexus between Thompson's action and the witness's decision not to testify was conclusory and insufficient. Judge Fernandez did not think that there was a proper allegation of a substantive violation, and did not believe that a conspiracy was effectively alleged. He agreed with the majority that the issue of qualified immunity should be remanded to the district court for its consideration in the first instance.


          REINHARDT, Circuit Judge

         Kelly Soo Park was tried by the state of California for the murder of Juliana Redding. Before trial, the judge ruled that she would not allow Park to present any evidence of third-party culpability after Park's key witness on that question, Melissa Ayala, invoked her Fifth Amendment privilege and refused to testify. Park was eventually acquitted of all charges.

         Park then sued Detective Karen Thompson and Doe Defendants under 42 U.S.C. § 1983. Park alleged in her first claim that Thompson violated her constitutional rights to compulsory process and a fair trial by intimidating and attempting to dissuade Ayala from testifying on behalf of the defense. Park asserted a second claim against Thompson and Doe Defendants for conspiracy to violate her civil rights under 42 U.S.C. § 1983 by orchestrating criminal charges against Ayala with the intention that she invoke the Fifth Amendment and refuse to testify on Park's behalf.[1] The district court dismissed both causes of action for failure to state a claim, and Park appeals.[2]

         This appeal presents several issues of law. First, we must decide whether Park has adequately alleged misconduct by Thompson that rises to the level of substantial interference with a defense witness in contravention of the Compulsory Process Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment. Because we hold that Park has adequately alleged such misconduct, we must decide a second issue: whether Park adequately pleads that Thompson's misconduct caused Ayala to refuse to testify. We hold that Park has pleaded a sufficient causal connection between Thompson's misconduct and Ayala's unavailability. Third, we must consider whether Park nonetheless failed to state a claim because Ayala's purported testimony was not favorable and material to her criminal defense. We hold that the fact that Park was eventually acquitted does not render Ayala's testimony immaterial, nor does it bar Park's Section 1983 action stemming from violations of her rights during the underlying criminal investigation and prosecution. Furthermore, we conclude that Ayala's testimony was material to Park's defense because evidence of third-party culpability would have cast some doubt on the government's evidence at Park's trial. Finally, we must make similar determinations with respect to Park's conspiracy claims. Here, we also hold the allegations sufficient.

         In view of the above, we reverse the district court's judgment and remand for further proceedings consistent with this opinion.


         I. Factual Background

         On March 15, 2008, Juliana Redding was strangled to death in her home in Santa Monica, California. Detective Karen Thompson of the Santa Monica Police Department ("SMPD") was the lead investigator on the Redding case. After a few months passed without any leads as to who was responsible for Redding's death, Detective Thompson requested permission from SMPD to continue investigating on her own time. She eventually matched DNA found on Redding's body to Park. The Los Angeles County District Attorney's Office ("District Attorney") consequently charged Park with Redding's murder.

         Park's murder trial was set for May of 2013. As part of her criminal defense, Park sought to introduce evidence that Redding's killer was actually John Gilmore, the victim's boyfriend at the time of her death. Gilmore had a history of domestic violence and had previously assaulted Redding.[3]

         On January 31, 2013, Park's investigator interviewed Gilmore's former girlfriend, Melissa Ayala. During that interview, Ayala told the investigator that Gilmore had been violent toward her and had choked her on at least three occasions. According to Ayala, the first of these incidents occurred after Ayala brought up Redding's death and accused Gilmore of murdering Redding. Before choking Ayala, Gilmore responded, "You want to see how she [Redding] felt?" On the second occasion, after Ayala again accused Gilmore of murdering Redding, he stated, while choking Ayala, that he was "[g]oing to show [Ayala] how [Redding] felt." Gilmore was convicted of domestic violence against Ayala. During the interview with Park's investigator, Ayala said she was afraid of Gilmore, but she agreed to testify about his violent behavior and the statements he made about Redding's death.

         After learning of this potentially exculpatory evidence, Park gave notice to the District Attorney of her intention to call Ayala as a defense witness at trial. Detective Thompson then contacted Ayala and attempted to dissuade her from testifying for the defense. Among other things, Thompson allegedly told Ayala that Gilmore-who had physically abused Ayala in the past-was "really upset" about her statements. Park also alleges that Thompson knowingly made false representations to Ayala about the nature of the evidence against Park.[4] In addition, Thompson allegedly told Ayala, "[Y]ou don't have to talk to them [defense investigators] if you don't want to . . . [I]f they call you, you don't even need to call back. . . . You're not under any obligation to do anything.".

         Detective Thompson allegedly admitted that she "had not spoken to Ms. Ayala for investigatory purposes, " but rather had called Ayala only to "repair the damage the Private Investigators had done to her relationship [with Gilmore]." After speaking with Detective Thompson, Ayala refused any further contact with Park's investigators, although prior to that conversation she had cooperated fully with them. Also, after the conversation, she reneged on her commitment to testify as a witness on Park's behalf.

         On information and belief, Park alleges that Thompson and/or Defendant Does, at Thompson's instigation, later spoke with the El Segundo Police Department about filing charges against Ayala for assault and criminal threats against Gilmore based on an incident that had occurred during the previous year. Park alleges that Detective Thompson and/or Defendant Does told the El Segundo Police Department that it was important to file charges against Ayala as soon as possible because the charges would cause her to invoke the Fifth Amendment, thereby precluding her from testifying about Gilmore's statements. Finally, Park alleges that as a result of this conversation, the District Attorney charged Ayala with felony conspiracy, assault, and criminal threats a few weeks before Park's scheduled trial.

         On May 9, 2013, Ayala appeared in court pursuant to Park's subpoena to testify at trial. The Deputy District Attorney informed Ayala's defense attorney that if he did not instruct Ayala to invoke her Fifth Amendment right against self-incrimination, then she would move to "recuse" him. Ayala invoked her Fifth Amendment right and declined to testify.[5] After Ayala refused to testify, the judge presiding over the criminal case precluded the presentation of any evidence relating to Park's third-party culpability defense.

         Park was tried and acquitted of all criminal charges. Park's defense counsel elicited favorable testimony from the prosecution's DNA expert, who testified that Park's DNA could have been transferred to Redding's body by the actual killer when he wiped down the apartment to eliminate fingerprints or DNA evidence. Park alleges that even though she was ultimately acquitted, her acquittal was far less certain in the absence of Ayala's testimony. Without that testimony, Park was precluded from presenting evidence of third party culpability at trial and was limited to presenting solely a failure of proof defense.

         II. Procedural History

         Park filed her complaint in district court asserting two causes of action against Detective Thompson and Defendants Does 1-10: (1) deprivation of civil rights, 42 U.S.C. § 1983, by violation of the Sixth Amendment's Compulsory Process Clause and denial of her right to a fair trial under the Due Process Clause of the Fourteenth Amendment; and (2) conspiracy to violate civil rights, 42 U.S.C.§ 1983, alleging violation of the same two constitutional rights.[6]

         The district court granted Detective Thompson's motion to dismiss the complaint without leave to amend. With respect to Park's claim against Thompson individually: first, the district court's opinion was not entirely clear as to whether the district judge held that Park had not adequately alleged that Thompson's conduct constituted substantial interference. Second, the district court concluded that Park had "not pleaded sufficient facts leading to a reasonable inference that it was Defendant's alleged persuasion that caused Ayala not to testify." Third, the district court concluded that the complaint failed to establish that Ayala's testimony would have been "material" to Park's third party culpability defense. The district judge reasoned that because Park would have obtained, and did obtain, the same result (acquittal), regardless of whether Ayala's testimony was presented to the jury, her Section 1983 claims were precluded. In addition, because Ayala's testimony was "not actually 'exculpatory evidence, '" the district judge concluded that its exclusion did not materially prejudice Park's defense. For the same reasons, as well as others, the district judge dismissed Park's conspiracy claim without leave to amend.[7]

         Park appeals the district court's dismissal of her claim against Thompson individually and her conspiracy claim against Thompson and Doe Defendants.


         We review de novo a district court's dismissal for failure to state a claim under Rule 12(b)(6). Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). We accept the plaintiff's allegations as true and view them in the light most favorable to her. New Mexico State Inv. Council v. Ernst & Young LLP, 641 F.3d 1089, 1094 (9th Cir. 2011). "Conclusory allegations of law . . . are insufficient to defeat a motion to dismiss." Lee, 250 F.3d at 679. Moreover, dismissal is appropriate if the complaint fails to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "If there are two alternative explanations, one advanced by defendant and the other advanced by plaintiff, both of which are plausible, plaintiff's complaint survives a motion to dismiss under Rule 12(b)(6)." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).


         I. Section 1983 Claim for Violation of Sixth Amendment Right to Compulsory Process and Fourteenth Amendment Right to a Fair Trial

         "To make out a cause of action under Section 1983, [the] plaintiff[] must plead that (1) the defendant[] acting under color of state law (2) deprived plaintiff[] of rights secured by the Constitution or federal statutes." Williams v. California, 764 F.3d 1002, 1009 (9th Cir. 2014) (internal quotation marks omitted). In the present case, it is undisputed that Detective Thompson was acting under color of state law. Consequently, Park's Section 1983 claim must be allowed to proceed if she pleaded sufficient facts to state a claim for violation of her constitutional rights under the Sixth and Fourteenth Amendments.[8]

         The Compulsory Process Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor." U.S. Const. amend VI. The right to compulsory process encompasses "[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary." Washington v. Texas, 388 U.S. 14, 18-19 (1967). As "a fundamental element of due process of law, " the right to compulsory process is incorporated against the states through the Due Process Clause of the Fourteenth Amendment. See id. at 19, 20.

         The Supreme Court has established that the government violates due process when its conduct "effectively dr[ives a] witness off the stand." Webb v. Texas, 409 U.S. 95, 98 (1972) (per curiam) (holding right to present a defense was violated when the trial judge singled out and admonished a defense witness about the risks of perjury in "unnecessarily strong terms"). We have further explained that, under Webb, "[i]t is well established that 'substantial government interference with a defense witness's free and unhampered choice to testify amounts to a violation of due process.'" Ayala v. Chappell, 829 F.3d 1081, 1111 (9th Cir. 2016) (quoting Earp v. Ornoski, 431 F.3d 1158, 1170 (9th Cir. 2005)). Although Webb dealt only with judicial misconduct, wrongful conduct by prosecutors or law enforcement officers can also constitute "substantial government interference" with a defense witness's choice to testify. See, e.g., United States v. Vavages, 151 F.3d 1185, 1189 (9th Cir. 1998) ("[T]he conduct of prosecutors, like the conduct of judges, is unquestionably governed by Webb."); United States v. Little, 753 F.2d 1420, 1439-40 (9th Cir. 1984) (analyzing claim of defense witness intimidation by IRS agents); see also Ayala, 829 F.3d at 1111 (explaining that allegations of witness intimidation by detective, taken as true, would amount to constitutional violation).

         The Supreme Court has also made clear that "the Sixth Amendment does not by its terms grant to a criminal defendant the right to secure the attendance and testimony of any and all witnesses, " but only "witnesses in his favor." United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (emphasis in original). Consequently, even where there may have been governmental misconduct, a criminal defendant cannot establish a violation of his compulsory process right unless he "make[s] some plausible showing" of how the potential witness's "testimony would have been both material and favorable to his defense." Id.; see also Cacoperdo v. ...

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