Mimesis Law
20 April 2019

Third Circuit: Even The Acquitted Can Sue For Being Framed

September 7, 2016 (Fault Lines) — The Third Circuit Court of Appeals held that a woman’s lawsuit against a county that wrongfully prosecuted her for arson can go forward, even though she was never convicted or imprisoned.

Arson “experts” are crap at science. They exaggerate their credentials, their certainty, and their past results. At least one man has been wrongfully executed because some idiot saw “accelerant” where anyone who had actually studied the field would have seen the ordinary results of a sustained fire.

But as bad as these experts may be, we hope, at a minimum, that they won’t immediately start tampering with the evidence at the scene of the “crime” and then be too embarrassed to tell anyone about it. Sadly, in criminal justice, disappointment springs eternal.

Michele Black had bad wiring in her home. She had a buyer on the hook, but to close the deal, she’d have to let the problem get fixed. So, the same day she and her mother started moving out of the home, a bevy of electricians went to work. A fire broke out from a 220 volt outlet, but was quickly extinguished by the workmen.

So far, a pretty routine incident. Hell Enter Deputy Fire Marshal Frank Hand. Hand took one look at the outlet, and although he had no experience as an electrician, decided that it needed to be disassembled. He concluded that the fire must have been deliberately set (despite the fact that the outlet was fire damaged) and, to support that conclusion, told the District Attorney’s office and other police that there was no power supply to the outlet before he disassembled it.

That made it a pretty open and shut case for other experts, who could easily rule out an electrical fire if there was no electricity to cause it. Making matters worse, there was a box of matches found in another room. Now, of course, no one tested the matches for DNA or fingerprints, but the experts were pretty sure that this must have been the source of the non-electrical fire.

Officers started interrogating Black and accused her of starting the fire. Naturally, when they went to get the warrant, nobody mentioned to the magistrate that the fire had started at an outlet, that the Fire Chief had first reported the incident as an electrical fire, or most importantly, that there was a group of electricians at the house to fix the faulty wiring when the fire broke out.

Black had already moved out to California when the warrant was issued, but she still had to trudge back to Pennsylvana and promise to pay $50,000.00 if she failed to report for court. That meant flying back and forth, repeatedly, over the course of months and years.

Prosecutors didn’t seem too interested in disputing the learned Hand’s account of the fire, refusing to meet with a defense expert who would testify that the fire was definitely electrical before trial. And I guess the prosecutors had reason to be confident, since Hand was ready to produce photographs proving that the electrical outlet’s wire had been cut on the day of the fire—photographs which, it turns out, may have been taken days or weeks afterward and then lied about. Thanks to good defense counsel and a reasonable jury, Black was acquitted in less than 40 minutes.

But now there was hell to pay. The State had gone out of its way to prosecute Black for a crime she did not commit, and had ignored mounds of exculpatory evidence to get there. Worse, it presented fabricated evidence at trial. Sure, the prosecutors couldn’t be sued (we wouldn’t want a “chilling effect” on lying to juries), but the fire experts were fair game.

The experts had a brilliant counter-strategy, though. How could Black prove wrongful imprisonment if she hadn’t been held in jail? How could she prove malicious prosecution if she had never been successfully prosecuted? In other words, they hoped to establish that you can’t be sued for a conspiracy to wrongfully convict you for a crime if the conspiracy isn’t successful.

The Third Circuit had an answer for that, noting that being forced to fly continuously from California to Pennsylvania is no picnic. The “continuous seizure” of coming to court, missing work and childcare obligations so that a prosecutor can tell a judge he’s “ready for trial,” then change his mind as the date approaches, is a serious one. Thus, Black gets to sue for damned inconvenience of our archaic court system pending her acquittal.

This result, in particular, is a rare piece of pragmatism from an appellate court. Of all the burdens of being criminally charged, the least discussed is the continued drudgery of appearing for court. Pointless appearances, gussied up as protecting the “rights” of the accused, serve instead to incentivize plea deals by making it difficult to go on living a normal life until the charges are dealt with.

Even better, the Court has little patience for the State’s “I’m bad at this” argument against liability.

Such a result would insulate the ineffective fabricator of evidence while holding accountable only the skillful fabricator.

In short, you shouldn’t avoid consequences for framing people just because you’re terrible at it. Instead, the Third Circuit adopted a rule that there is a 14th Amendment claim so long as the fabricated evidence led to criminal charges, regardless of conviction.

Now that the District Court’s summary judgment decision has been reversed, Black will get her day in court. That may mean a trial, allowing her to be vindicated yet again by a jury. Or it may mean that the State, tired of being dragged before a judge, settles out rather than asserting its rights. Either way, poetic justice.

9 Comments on this post.

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  • Scott Jacobs
    7 September 2016 at 9:51 am - Reply

    Hand: “When I looked at the outlet there wasn’t any power to it.”

    Literally any electrician ever: “No shit – it caught on fire, so when we put it out we killed the power to it so it wouldn’t happen again. What are you, stupid?”

    • Andrew Fleischman
      7 September 2016 at 11:34 am - Reply

      In reading the case, it’s not clear if the prosecutors even talked to the electricians who dealt with the fire. These are the sorts of cases where the State needs to be on the hook for damages after the fact.

  • Chris
    7 September 2016 at 11:25 am - Reply

    Looks more like the Fire Marshall was just an idiot who sucks at his job than a true frame up.

    Maybe courts should be open to letting her recover based on imputing his gross negligence to the state.

    Choosing to believe your own investigator and/or expert and discrediting the other side’s expert as a paid hack is a fairly common reaction for a lawyer. It is certainly indefensible to give up an opportunity to do a pre-trial interview on the other side’s expert though. Also, testing for DNA and fingerprints for someone who lives in the house, is not going to avail much either way.

    Judges can hear cases or motions and keep crap from going to a jury maybe.
    Not sure what the real solution to stupid or incompetent prosecution is other than the ballot box.

    • Andrew Fleischman
      7 September 2016 at 11:32 am - Reply

      It sounds like he had a hunch and then fixed the evidence to match his initial conclusion. At best, it showed reckless disregard for whether he was reaching the right result. As for prosecutors, it’s a mystery why they’d pursue a case like this. Why would a person burn down a home they were just about to sell?

  • C
    7 September 2016 at 9:08 pm - Reply

    As an Australian paralegal I don’t comment here much, as I don’t have much to add… So this is merely for interest.

    Our regime for malicious prosecution is the common law tort (and I see a few of them). The first leg is an unsuccessful prosecution, which is satisfied by withdrawn charges, as well as dismissed charges or appellate reversal. In theory, overcharging could be covered but it’d have to be pretty egregious (and separating damage would be challenging).

    I mean, I thought it was hard to get up on one of these here but if you had to actually be successfully convicted it’d be even more of a joke than it is.

    Fortunately we have been seeing more flex in the common law here with a recent higher decision suggesting that the bar be moved to recklessness as to the reasonableness of prosecution being a continuing obligation so I have some hope. We don’t get many decisions about it as meritorious claims tend to settle.

    tl;dr – flabbergasted by the notion that an unsuccessful prosecution isn’t a prosecution.

  • Ahcuah
    8 September 2016 at 6:21 pm - Reply

    Prosecutors didn’t seem too interested in disputing the learned Hand’s account of the fire . . .

    I see what you did there.

    • Andrew Fleischman
      8 September 2016 at 8:31 pm - Reply

      And that’s what makes it all worthwhile.

      • Ahcuah
        8 September 2016 at 10:52 pm - Reply

        Now I’ll be waiting to see if you can fit any barefoot sanders into a story . . .

        • Scott Jacobs
          8 September 2016 at 11:10 pm - Reply

          God damnit will you stop encouraging him?