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Peterson v. Bernardi

June 15, 2010

LARRY PETERSON, PLAINTIFF,
v.
ROBERT D. BERNARDI, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Bumb, United States District Judge

FOR PUBLICATION

[Dkt. Ent. 70]

OPINION

In this civil rights action, plaintiff Larry Peterson (the "Plaintiff") alleges that he served 18 years incarceration for a crime he did not commit. He alleges that the evidence leading to his arrest, indictment, and conviction was fabricated, that the prosecutor's expert exaggerated her findings, and that, even when presented with exonerating evidence, the prosecutor prolonged his incarceration. Asserting the protections of both absolute and qualified immunity, all defendants (collectively, the "Defendants")*fn1 now move for summary judgment, pursuant to Federal Rule of Civil Procedure 56(a). For the following reasons, the motion will be partially granted and partially denied.

BACKGROUND*fn2

On March 17, 1989, a Burlington County jury found Plaintiff guilty of felony murder and aggravated sexual assault. State v. Larry L. Peterson, Indictment No. 87-11-0828-I. The trial judge then sentenced him to a term of life imprisonment, with 40 years of parole ineligibility. The Appellate Division and Supreme Court of New Jersey affirmed the conviction and sentence. State v. Peterson, No. A-3034-89T4 (App. Div. Nov. 30, 1992), cert'n denied, 133 N.J. 433, 627 A.2d 1139 (1993).

A. The Crime and Investigation

Jacqueline Harrison was the victim of the crimes of which Plaintiff was convicted. In the early morning of August 24, 1987, Harrison was brutally raped and strangled to death in a Pemberton Township, New Jersey soybean field. It was later reported that Harrison had, the prior evening, consumed cocaine and engaged in consensual sexual intercourse with two men, David Sutton and Arthur Walley.

Investigators identified Plaintiff as a person of interest within days of Harrison's murder because, according to accounts of the investigation, witnesses had reported observing suspicious scratch marks on Plaintiff's arms. Plaintiff was first interviewed by investigators four days after the murder, on August 28, 1987. Defendant Richard Serafin, a lieutenant with the Burlington County Prosecutor's Office ("BCPO"), conducted the first interview, followed by Defendant M. Scott Fitz-Patrick,*fn3 a BCPO sergeant, and Edward Ryan, a BCPO investigator.

Investigators interviewed Robert Elder, an acquaintance of Plaintiff's, on three separate days beginning August 31, 1987.

Elder submitted to a polygraph examination in the course of the second day's interview, the results of which indicated that he was withholding information. He thereafter provided new details of a conversation with Plaintiff, which purportedly occurred within hours of Harrison's murder. He said that Plaintiff admitted to having sex with, assaulting, and choking a woman with a name like the victim's. Importantly, he said that Plaintiff had confessed to vaginally penetrating the woman with a stick. Notably, investigators had withheld from the public the fact that Harrison had been penetrated with a stick. On September 21, 1987, investigators obtained statements from Wesley Bishop and Arthur Grooms corroborating Elder's account of his conversation with Plaintiff.

Elder has now recanted his statement. He says that BCPO investigators -- specifically, Defendants Fitz-Patrick and Michael King -- harassed and intimidated him by appearing repeatedly at his home and workplace and by threatening to prosecute him for Harrison's murder, all to obtain testimony from him to inculpate Plaintiff. He says that he learned the details of Harrison's murder, including the fact that Harrison had been penetrated with a stick, from investigators speaking outside of the interview room. Unlike Elder, however, Bishop and Grooms have not recanted their statements, although Bishop does not retain a clear memory of the events.

Defendant Gail Tighe, a forensic scientist with the New Jersey State Police, performed a microscopic analysis of hairs found on a broken stick taken from the crime scene. Defendant Tighe concluded that of the seven hairs found on the stick, four "compared" to (that is, shared similarities with) the victim's hair, while three "compared" to Plaintiff's hair.

The Pemberton Police filed a criminal complaint against Plaintiff on September 22, 1987. Plaintiff was then arrested pursuant to a valid warrant. Two months later, on November 18, 1987, the case was presented to a grand jury. Defendant Serafin testified before the grand jury that Plaintiff had admitted to the murder in a conversation with Elder. He also explained Defendant Tighe's scientific analysis as finding that the hair from the crime scene was "identical" to Plaintiff's hair. The grand jury returned an eight-count indictment. Plaintiff maintains that Defendant Serafin's testimony mischaracterized Elder's statement and Defendant Tighe's findings.

In addition, Plaintiff maintains that BCPO investigators failed to pursue important leads. Specifically, Plaintiff avers that investigators failed to interview a number of people with whom Harrison had contact in the hours before her murder, including three individuals who sold cocaine to her. Also, Plaintiff avers that BCPO inadequately investigated individuals who attended a party on the night of the murder at a housing development nearby the crime scene, including one individual, Hassan Hartfield, who Plaintiff had implicated in interviews with police. Plaintiff further avers that BCPO inadequately investigated two individuals, Kenneth Dixon and James Threadgill, who had been apprehended by the Hamilton Township Police Department for several robberies. Defendants dispute each of these averments.

B. The Trial

Plaintiff's trial commenced in February 1989 before Judge Cornelius P. Sullivan. At trial, Plaintiff was represented by attorneys John Furlong and John L. Call, Jr. Elder, Grooms, and Bishop testified to hearing Plaintiff make self-incriminating statements shortly after the murder. Defendant Tighe also testified about her findings. Notably, she did not dispute the prosecutor's use of the term "match" (rather than "compare") to characterize her findings, and she agreed that hair from the crime scene "ha[d] been identified as . . . belonging to" Plaintiff. (Trial tr., Mar. 6, 1989, 152:1-18 [Pl.'s Ex. 26].) Plaintiff now maintains that these were inaccurate overstatements of her findings. Defendant Tighe further testified that her findings were confirmed by the existence of debris on both the crime-scene hair-fragment and Plaintiff's control hair-fragment, which Plaintiff now maintains is scientifically baseless. At trial, however, Plaintiff offered no rebuttal expert testimony.

Plaintiff also testified at trial. He said that he was with Susan Ruble at a Wrightstown motel when the murder occurred. However, the motel records presented at trial did not reflect a room registered to Plaintiff or Ruble for that night. (Plaintiff now suggests that BCPO officials failed to investigate Ruble's September 9, 1987 statement that she and Plaintiff had registered under a different name.) On direct-examination, Ruble initially corroborated Plaintiff's account, but on cross-examination she conceded that she was unsure of the date on which she and Plaintiff had stayed at the motel.

The jury returned a guilty verdict.

C. Exoneration of Plaintiff

In July 2002, Plaintiff, represented by the Innocence Project, filed a motion seeking post-conviction relief under a newly enacted statute, N.J. Stat. Ann. 2A:84A-32a, which created a procedural mechanism for obtaining DNA testing of evidence that might be probative of guilt or innocence. BCPO, which by then was led by Defendant Robert Bernardi, opposed Plaintiff's motion, and on January 31, 2003, Judge Sullivan denied it. On appeal, however, the Appellate Division reversed Judge Sullivan and ordered the DNA testing. State v. Peterson, 364 N.J. Super. 387, 836 A.2d 821 (App. Div. 2003).

On January 30, 2004, evidence samples were submitted to the Serilogical Research Institute ("SERI") for DNA testing. In December 2004 and February 2005, SERI reported that the samples (including hair samples that were said to have microscopically "compared" to Plaintiff's hair) did not match Plaintiff's DNA profile. The testing of semen taken from the victim's body yielded matches for Sutton and Walley, which was consistent with BCPO's report that they both had consensual sex with Harrison in the hours before her murder. The testing also yielded evidence of semen belonging to a third, unidentified person whose DNA profile did not match Plaintiff's.

Based upon these results, Plaintiff moved to vacate his conviction on April 27, 2005, which BCPO did not oppose. The motion was granted by Judge Thomas S. Smith on July 29, 2005. Plaintiff then made bail in August 2005, pending a decision of BCPO officials as to whether to try Plaintiff a second time. They ultimately decided against a retrial, and, at BCPO's request, an Order of Dismissal was entered on May 26, 2006.

STANDARD OF REVIEW

Summary judgment should be granted if "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). A fact is "material" if it will "affect the outcome of the suit under the governing law . . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). An issue is "genuine" if it could lead a "reasonable jury [to] return a verdict for the nonmoving party."

Id. at 250.

When deciding the existence of a genuine issue of material fact, a court's role is not to weigh the evidence: all reasonable "inferences, doubts, and issues of credibility should be resolved against the moving party." Meyer v. Riegel Products Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983). However, "a mere scintilla of evidence," without more, will not give rise to a genuine issue for trial. Anderson, 477 U.S. at 249. In the face of such evidence, summary judgment is still appropriate "where the record . . . could not lead a rational trier of fact to find for the nonmoving party . . . ." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986). "Summary judgment motions thus require judges to 'assess how one-sided evidence is, or what a 'fair-minded' jury could 'reasonably' decide.'" Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460 (3d Cir. 1989) (quoting Anderson, 477 U.S. at 265).

The movant "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). Then, "when a properly supported motion for summary judgment [has been] made, the adverse party 'must set forth specific facts showing that there is a genuine issue for trial.'" Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P. 56(e)). The non-movant's burden is rigorous: it "must point to concrete ...


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