May 14, 2015 – Ralph Armstrong spent almost 30 years in prison before a new trial was ordered in his murder-rape case, which was later dismissed. Recently, the U.S. Court of Appeals for the Seventh Circuit ruled that Armstrong can pursue his civil lawsuit against the prosecutor and crime lab techs, accused of destroying evidence in bad faith.
In 1981, Armstrong was accused and convicted of raping and murdering 19-year-old Charise Kamps, a U.W.-Madison student at the time. The killer had strangled Kamps with her bathrobe belt, which contained semen stains evidencing rape. The prosecutor, John Norsetter, relied on witnesses and physical evidence to convict Armstrong.
Witnesses accused Armstrong of selling Kamps cocaine and using it with her that night, implicating Armstrong as the suspected killer. Police had found cocaine paraphernalia, which looked recently used, in Kamps’s apartment. However, the drug paraphernalia was never forensically tested or screened for fingerprints, and was lost before trial.
Another witness said she saw a shirtless man with a mustache suspiciously enter and leave Kamps’s apartment building on the night of the murder, describing him as 5’6” inches tall and 165 pounds, with no tattoos. Armstrong was 6’2” tall, 200 pounds, with no mustache and noticeable, dark tattoos on his upper arms.
But Norsetter, Armstrong alleged, had the witness “hypnotized” and showed her photos of Armstrong. Afterwards, she identified Armstrong in a line-up (in 1995, a federal court denied Armstrong’s habeas corpus petition, which alleged the “show-up” was rigged).
In addition, testing of semen stains found on the victim’s bathrobe belt – analysis not nearly as precise as DNA testing today – revealed the Armstrong matched the semen’s “secretor type,” along with the victim’s boyfriend and 80 percent of the population. Ultimately, a jury convicted Armstrong and he was sentenced to life in prison.
New Evidence
In 1995, Armstrong brought forth new DNA evidence – semen stains on Kamps’s bathrobe (not bathrobe belt) – that excluded him as the source of the semen.
The state minimized the importance of the evidence and a state appeals court ultimately ruled that a new trial would not change the result, so one was not granted.
In 2005, Armstrong presented the results of new DNA tests on hair that was found on the victim’s bathrobe belt, definitively excluding him as the source of the hair. He noted again that testing of semen on the bathrobe excluded him as the source of the semen.
This time, the Wisconsin Supreme Court vacated the conviction and ordered a new trial. But Armstrong, who remained in prison awaiting retrial, was never retried. The trial court dismissed the charges because the state acted in bad faith by destroying evidence.
Destruction of Evidence
Despite court orders that required the state to preserve all evidence and inform the defense of any new testing to be performed, Norsetter told crime lab techs to perform testing on newly discovered semen stains that were found on the victim’s bathrobe belt.
The specific test performed could not distinguish between men with the same father, came out inclusive, and consumed the remainder of the DNA sample.
Armstrong had claimed that his brother, Stephen Armstrong, was the true killer. Stephen Armstrong died in 2005 but allegedly confessed to the murder. Proper DNA testing by the defense, he said, could have identified his brother as the true killer.
In 1995, the brother allegedly confessed to a friend, and the friend told Norsetter, but Norsetter never disclosed the confession to anyone, including the lab techs, who could have performed a different DNA test to differentiate between the two brothers.
Norsetter said he “just forgot” about the court orders requiring him to inform the defense before directing any further testing of evidence. The trial court dismissed Armstrong’s case, noting that the DNA sample was potentially exculpatory and the state destroyed it in bad faith, thereby depriving Armstrong of a right to a fair trial. He was released from prison.
Federal Civil Case
In 2012, Armstrong filed a federal civil case for damages against Norsetter and the crime lab technicians for constitutional violations relating to destruction of evidence.
The defendants moved to dismiss, claiming they were shielded from suit based on qualified and prosecutorial immunity. However, the U.S. District Court for the Western District of Wisconsin ruled that Armstrong could proceed on two claims involving the destruction of the drug paraphernalia evidence and the bathrobe semen sample.
The defendants appealed. In Armstrong v. Daily et al., No. 13-3424 (May 11, 2015), a three-judge panel for the Seventh Circuit Court of Appeals ruled that Armstrong’s claims can proceed, upholding the decision that defendants don’t have qualified immunity.
Qualified immunity protects government actors from liability for civil damages if they do not violate clearly established statutory or constitutional rights. If they do, courts ask whether a reasonable officer would clearly know his or her conduct was unlawful.
The panel rejected the defendants’ claim that Armstrong failed to allege a violation of constitutional rights because wrongdoing could be remedied through a state tort suit.
“We reject this argument, which we view as profoundly mistaken,” wrote Judge David Hamilton for the panel’s majority. “First, the Parratt doctrine does not apply to claims alleging that wrongful conduct corrupted fair fact-finding in the criminal justice system.”
The Parratt doctrine attaches qualified immunity to cases in which the defendant acts negligently, in violation of procedural due process, if state tort law provides a remedy, but the panel said Parratt only applies to a “narrow category of due process cases.”
“The fact that the alleged wrongdoing also violated state law and could support a tort claim is not sufficient to invoke the Parratt doctrine,” Judge Hamilton wrote. “When Parratt and its progeny are read carefully … they do not bar Armstrong’s claims based on deprivation of his liberty through deliberate destruction of exculpatory evidence.”
Accepting the facts in the complaint as true, the panel noted that Armstrong sufficiently alleged facts that Norsetter acted in bad faith by destroying the potentially exculpatory drug paraphernalia, which was stored and then lost before Armstrong’s trial.
The complaint stated that Norsetter admitted under oath that he believed Armstrong was guilty, and would not believe otherwise despite any evidence to the contrary. It also alleges that Norsetter would do anything to pin Armstrong, including violating court orders governing evidence and suppressing a confession from Armstrong’s brother.
“These allegations are more than sufficient to allow the inference that Norsetter was acting in bad faith,” wrote Judge Hamilton, noting Armstrong’s allegation that Norsetter knew the drug paraphernalia, if not destroyed, could have exculpatory value.
“Norsetter may dispute these allegations and the inferences one could draw in later stages of litigation, but they suffice for now, on the pleadings,” Hamilton noted.
The majority rejected Norsetter’s argument that his conduct with regard to the drug paraphernalia was not unlawful, in 1980, because that evidence was only “potentially exculpatory.”
Finally, the panel rejected the lab technicians' claim that they are immune from suit for performing testing that consumed the new DNA sample, in violation of court orders.
“He has alleged (plausibly) that Daily and Campbell acted in bad faith to destroy exculpatory evidence,” Judge Hamilton wrote. “He has also alleged the second element, that defendant’s actions caused him to suffer a deprivation of liberty.”
Concurrence
Judge Joel Flaum wrote a concurring opinion. He agreed that Armstrong had viable claims against the lab technicians. But he said Norsetter was immune from suit.
“I disagree with the conclusion that Armstrong’s claim against prosecutor John Norsetter regarding the preservation of drug paraphernalia evidence is sufficient to remove the shield of qualified immunity,” Judge Flaum wrote.
Judge Flaum said that in 1980 or 1981, a reasonable prosecutor would not be aware that failing to preserve “potentially exculpatory evidence” in bad faith was unlawful.
“I question whether a prosecutor’s affirmative duty to preserve potentially exculpatory evidence was clearly established prior to the Supreme Court’s pronouncements in 1984 and 1988,” wrote Flaum, referring to California v. Trombetta and Arizona v. Youngblood.
