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Mellen v. Winn

United States Court of Appeals, Ninth Circuit

August 17, 2018

Susan Mellen; Julie Carroll; Jessica Curcio; Donald Besch, Plaintiffs-Appellants,
v.
Marcella Winn, Defendant-Appellee.

          Argued and Submitted May 18, 2018 Pasadena, California

          Appeal from the United States District Court No. 2:15-cv-03006-GW-AJW for the Central District of California George H. Wu, District Judge, Presiding

          Anna Benvenutti Hoffmann (argued), Rick Sawyer, and Nick Brustin, Neufeld Scheck & Brustin LLP, New York, New York; Deirdre Lynn O'Connor, Seamus Law APC, Torrance, California; for Plaintiffs-Appellants.

          Calvin House (argued), Gutierrez Preciado & House LLP, Pasadena, California; Laura E. Inlow, Collinson Law, Torrance, California; for Defendant-Appellee.

          Before: Kim McLane Wardlaw, Jacqueline H. Nguyen, and John B. Owens, Circuit Judges.

         SUMMARY[*]

         Civil Rights / Qualified Immunity

         The panel reversed the district court's summary judgment in favor of Detective Marcella Winn on qualified immunity grounds in a 42 U.S.C. § 1983 action.

         Plaintiff Susan Mellen was wrongly imprisoned for seventeen years before securing habeas relief in October 2014, and she and her children brought this civil rights action against Detective Winn based on her failure to disclose evidence.

         The panel held that the record demonstrated as a matter of law that Detective Winn withheld material impeachment evidence under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), and raised a genuine issue of material fact as to whether Detective Winn acted with deliberate indifference or reckless disregard for plaintiff's due process rights.

         The panel held that the law at the time of 1997-98 investigation clearly established that police officers investigating a criminal case were required to disclose material, impeachment evidence to the defense.

         The panel concluded that the district court abused its discretion by striking the declaration of Mellen's police practices expert, Roger Clark.

         The panel reversed summary judgment on qualified immunity grounds and the order striking Clark's declaration, and remanded to the district court for further proceedings.

          OPINION

          WARDLAW, Circuit Judge.

         Susan Mellen was wrongly imprisoned for seventeen years before securing habeas relief in October 2014. After release from prison, Mellen and her three children, Julie Carroll, Jessica Curcio, and Donald Besch, brought suit under 42 U.S.C. § 1983 against Detective Marcella Winn, [1]arguing that Detective Winn failed to disclose evidence that would have cast serious doubt on the testimony of June Patti, the star prosecution witness in Mellen's trial. Detective Winn asserted qualified immunity, arguing there was no genuine dispute of material fact as to whether the withheld evidence was material or as to whether Detective Winn acted with deliberate indifference or reckless disregard for Mellen's due process rights, and that the law at the time of the investigation did not clearly establish that police officers were required to disclose material, impeachment evidence. The district court granted summary judgment in Detective Winn's favor.

         We conclude, first, that the record demonstrates as a matter of law that Detective Winn withheld material impeachment evidence under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972) (extending Brady to impeachment evidence), and raises a genuine issue of material fact as to whether Detective Winn acted with deliberate indifference or reckless disregard for Mellen's due process rights. Second, we conclude that the law at the time of the 1997-98 investigation clearly established that police officers investigating a criminal case were required to disclose material, impeachment evidence to the defense. Finally, we conclude that the district court abused its discretion by striking the declaration of Mellen's police practices expert, Roger Clark. We reverse the grant of summary judgment on qualified immunity grounds and the order striking Clark's declaration, and remand to the district court for further proceedings consistent with this opinion.

         I.

         Susan Mellen was convicted of first-degree murder in June 1998, based largely on the testimony of June Patti (Patti). Mellen contends that Detective Winn wrongfully withheld a statement that June Patti's sister, Laura Patti (Laura), made to Detective Winn before trial. Laura, who was a Torrance police officer at the time of the investigation, told Detective Winn that her sister, June Patti, was "the biggest liar" that she had "ever met" in her life and that she did not "believe anything [Patti] says."

         Laura said that she based this conclusion on her personal experiences with her sister, who, since the age of four or five, "had a habit of not telling the truth." Laura also explained that her sister had filed more than twenty complaints against Laura with the Torrance Police Department, all unsubstantiated, and that Patti "constant[ly]" lied to Laura's colleagues. At her deposition, Laura also said that she believed that Patti had been a "certified informant" with the Torrance Police Department in the early 1990s.

         Laura stated that her conversation with Detective Winn was brief, and Detective Winn did not inquire into why Laura believed her sister was a liar. But it turned out that Laura was right about her sister. Patti was deemed an "unreliable informant" by the Torrance Police Department five years before Mellen's trial. And in a fourteen-year span between 1988 and 2002, Patti had more than 800 contacts with law enforcement, where she was known to exaggerate or outright lie to police officers to protect or advance her own interests.

         Although the revelations about Patti proved the loose thread that unraveled Mellen's wrongful conviction, Detective Winn contends that no reasonable officer would have understood that Brady/Giglio required the disclosure of Laura's statements.[2] Because the Supreme Court has instructed that Brady/Giglio requires a "fact-intensive" inquiry into whether "there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different," Turner v. United States, 137 S.Ct. 1885, 1888, 1893 (2017) (citations omitted), we turn to a close examination of the investigation and the trial that resulted in Mellen's wrongful conviction.

         A. The Investigation

         Rick Daly's body was found burned near a dumpster in San Pedro, California, on July 21, 1997. After two weeks while police officers struggled to identify the body, calls flooded into the Los Angeles Police Department's (LAPD) South Bureau Homicide Unit, and filtered to Detective Winn, who had taken responsibility for the case. The first tips would later prove the most accurate: a caller told detectives that Daly was killed by three members of "Lawndale 13," a gang that congregated around the "Mellen Patch," a duplex in Torrance, California, owned by members of the Mellen family and frequented by methamphetamine users. Detectives also heard that Daly was killed in the back house of the Mellen Patch, where Susan Mellen had lived before February 1997, [3] and that Daly's body was transported in Scott "Skip" Kimball's car to San Pedro where the three men set Daly on fire.

         On August 12, 1997, Detective Winn prepared a search warrant for the Mellen Patch and arrest warrants for Lester "Wicked" Monllor, Chad "Ghost" Landrum, and Santo "Payaso" Alvarez, the three men identified in the caller's tip and corroborating reports. The LAPD executed the search warrant at the Mellen Patch early in the morning the next day. The warrant yielded several potential witnesses and residents of the Mellen Patch, including Monllor's mother and sister, Mellen's sister-in-law, niece, and nephew, and two other people from the neighborhood. Detective Winn later learned that Monllor, Landrum, and Alvarez were in custody on unrelated charges. Detective Winn had also earlier spoken with Scott Kimball, who was also in jail on unrelated charges, and who told Detective Winn that he had lent his car to his friends on the night of the murder.

         The evening after the LAPD executed the search warrant at the Mellen Patch, June Patti contacted Detective Winn for the first time, leaving a voicemail message that indicated that Patti had information about the Daly murder. The next morning, Patti appeared at Monllor's arraignment, along with Monllor's mother. And two days after Monllor's arraignment, Patti directed Detective Winn's attention to Susan Mellen, Daly's ex-girlfriend, and a long-time Mellen Patch resident.[4]

         Patti gave her first oral statement to Detective Winn on August 15, 1997. At the time, she told Detective Winn that, on the same night that the LAPD executed the arrest warrant at the Mellen Patch, Patti called Mellen and Mellen's boyfriend, Tom Schenkelberg (Tom), to buy "speed." Because Patti was purportedly a paralegal at the courthouse (she was not), and came from a family of police officers, Mellen asked to meet Patti at the motel where Patti was staying to talk about the Daly murder.

         It was at the Travelodge motel that Mellen allegedly confessed her involvement in Daly's murder to Patti. Patti said that Mellen told her that she and Tom, with help from Chad Landrum, killed Daly because Daly "kept going in [Mellen's mother's house] and stealing all her things, their speed, their pips [sic]." Patti said that Mellen had told her that Tom and Landrum kicked Daly and taped his mouth shut, that Landrum pulled out a knife and threatened to stab Daly, and that Tom and Landrum set fire to Daly in Mellen's mother's house.[5] Mellen allegedly told Patti that she pulled back Daly's head with his bandana, kicked Daly, and got high while Tom and Landrum beat Daly. Patti also said that a fourth, unnamed person came over from next door to tell Mellen, Tom, and Landrum to be quiet, and that this person was already in custody.[6] Patti said that Mellen and Landrum put Daly in the back of Mellen's car and "dropped him off" in San Pedro because "Tom didn't want to go."

         At the end of the August 15, 1997 recorded oral statement, [7] Detective Winn prepared a written statement for Patti's signature. The written statement adds more detail to Patti's oral statement, detail that Detective Winn was aware of from the police investigation thus far. Notably, the written statement mentioned that the fourth, unnamed person acted as a lookout for Mellen, Tom, and Landrum. Patti's written statement also added that Landrum set Daly on fire again in San Pedro, and that Patti and Tom had left Daly's body near a trash can in an alley with a chain link fence because "only Mexicans live there and they won[']t say anything"-details that did not come from Patti's oral statement. The written statement also added that Mellen and Landrum dumped the body in San Pedro around "8:30 or 9:00 P.M.," when Patti previously told Detective Winn only that Landrum and Tom started beating Daly "during the daytime."

         Relying on Patti's written statement, Detective Winn presented the case against Mellen to district attorney Steven Schreiner, who, in turn, filed one count of first-degree murder against Mellen.[8] Mellen was arrested on August 25, 1997, and in an interview with Detective Winn, insisted that she had nothing to do with Daly's murder. Mellen told Detective Winn that she and Cory Valdez, Daly's then-girlfriend, had learned from a woman named Ginger Wilborn that Landrum, Monllor, and Alvarez had murdered Daly, and had wrapped his body in a blanket to transport him to San Pedro. Mellen also told Detective Winn that she had returned to the Mellen Patch with her children on the evening of the murder, but that she had stayed in the area for only ten to fifteen minutes. Mellen said that while she was there, she saw Daly alive, and he must have been murdered after she left. Detective Winn told Mellen that she did not believe her.

         The preliminary hearing in Mellen's criminal case, where she was charged alongside co-defendants Monllor and Landrum, took place on November 13, 1997. Mellen was represented by Lewis Notrica, a private family law attorney whom Mellen had previously asked to handle her divorce. The government was represented by Valerie Rose, a deputy district attorney who had prosecuted cases since 1991.

         Patti testified at the preliminary hearing. She again said that Mellen had confessed her involvement in Daly's murder to Patti at the Travelodge motel, reiterating that Mellen and Tom recruited Landrum from next door to beat up Daly for stealing Mellen's things. This time, however, when defense counsel questioned Patti about the involvement of a fourth person, Patti insisted that the fourth person had only banged on the window and said "shut the fuck up," but otherwise had nothing to do with the murder. When defense counsel pressed Patti about the inconsistencies between her written statement and her preliminary hearing testimony as to this fourth person, Patti said that Detective Winn made up the details of the story. Patti testified that she told Detective Winn that she was "not signing" the written statement because Detective Winn "wrote something to the [effect] that the person in jail was a lookout" when that was not true. Patti also testified that Detective Winn told her that "the person was in jail and she wanted him to be blamed for it, and he didn't do it, and he wasn't around when it happened." Patti said that Detective Winn was "pissed off" when Patti told her "four or five times" that the written statement did not reflect what Mellen had said, but Patti ultimately signed it because she was pressed to get to the airport.

         This is the most notable inconsistency between Patti's earlier oral and written statements and her preliminary hearing testimony, but there are others. In her oral statement, Patti said that she called Mellen to buy speed, and that the "motel receipt" would show the phone number to which the call had been placed. Patti initially testified that she had "dial privileges" from her room, but when pressed by Mellen's counsel about how she paid for the phone call, Patti changed her story: "Actually," she testified, "we didn't call from the room. We called from downstairs at the pay phone, because it was a pager, and my dad paid for the calls and I didn't want him to find out I was paging people for speed." And for the first time at the preliminary hearing, Patti testified that she was on speed the night that she talked to Mellen at the hotel. Patti's preliminary hearing testimony did not mention whether anyone else had been present with her at the hotel, whether Daly's attackers had used a hammer or a knife, or any other detail about how they had allegedly kept Daly quiet or transported his body to San Pedro.

         B. Pre-Trial Matters

         As Mellen's case approached trial in May 1998, several events, in addition to the alleged telephone call between Laura Patti and Detective Winn, shed further light on Patti's unreliability as the star government witness.

         In a letter dated February 25, 1998, Patti wrote to District Attorney Rose explaining that she could not return to California to testify at Mellen's murder trial because Patti's sister, Laura, had threatened to arrest her. Patti sent the letter to the prosecutor while living with her boyfriend in Washington State. In the letter, Patti said that she was writing to notify District Attorney Rose that she had outstanding warrants for traffic tickets and for an incident where she used her "sister Serina Patti [sic] name after [she] hit a women's car in a [sic] accident." Patti said that her sister, Laura, a Torrance police officer, had warned Patti that if she returned to California she would be arrested on those warrants. Patti also recounted numerous incidents where she had lied to police to evade arrest warrants, had impersonated her sister, Serina Patti, and had otherwise interacted with law enforcement. She asked the district attorney to "contact the Torrance D.A." to get the ticket "dismissed in the interest of justice."

         The district court found that Patti's February 1998 letter was placed in the "murder book," a dossier that was supposed to contain all of the investigatory information about the Daly murder and which was turned over to defense counsel on October 1, 1997. But the record demonstrates that the district attorney's office received Patti's letter after the murder book had already been turned over to the defense, and it is not clear from the record that defense counsel had access to the letter. District Attorney Rose's own declaration suggests that she would not have turned over the letter because she was "unaware of any legal authority which provided that sibling rivalry . . . was Brady evidence."

         Rose replied to Patti's letter on April 16, 1998, two and a half weeks before Mellen's criminal trial would start on May 4, 1998, in a letter intended "to memorialize [a] telephone conversation regarding [Patti's February 1998] letter." It advised "[n]either your sister nor any other officer can serve you or arrest you for anything that happened in this state prior to the date that you came into . . . the state in order to comply with the subpoena." The letter then concluded, "I will send a copy of this letter to your sister, as well as to the defense attorneys on the criminal case of People v. Monllor, Mellen & Landrum."

         Patti's credibility was also at issue in a hearing on the morning before trial, where the parties argued pending motions in limine. District Attorney Rose asserted that it would be inappropriate "to ask about [Patti's] arrests and a misdemeanor." Patti had two prior misdemeanor convictions for forgery and for harassment of her sister Laura, and Patti had numerous prior arrests for drug-related charges. The trial court opined that Patti's prior "misdemeanor conviction[s]" and arrests were "not admissible," and Notrica, Mellen's defense counsel, replied "I [have] no quarrel with that."

         Rose then discussed Patti's testimony that she had stabbed Mellen's prior boyfriend because he had grabbed her breast, and an allegation that Patti had stolen Mellen's brother's vehicle because Mellen's brother killed one of Patti's dogs. As to the first incident, Notrica replied, "I don't even know where I got the information." When the trial court asked whether Notrica intended to use the information at trial, he said "no." As to the second incident, Notrica said, "I don't have [Mellen's brother] under subpoena," so "[testimony about] it is not going to happen."

         The parties also discussed whether Patti was a paid informant. Notrica had suggested to the district attorney that Patti might be a paid informant because she "appears to have a lot of arrests, but no convictions." In reply, district attorney Rose said that she had "no knowledge of such," and she argued that raising Patti's potential role as a paid informant would be "inappropriate" at trial. At the time, Patti had, in fact, enrolled as a paid informant with the El Segundo and Redondo Beach police departments, and the Torrance Police Department deemed Patti an "unreliable informant" in 1993 for providing exaggerated and untruthful information to law-enforcement officers. The court, however, agreed with the prosecutor, concluding that "absent some good ...


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