United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB, District Judge.
case has a long history, starting in 1980 with the brutal
rape and murder of Charise Kamps in Madison, Wisconsin.
Plaintiff Ralph Dale Armstrong was charged with the crimes
and a jury convicted him in 1981. After several unsuccessful
attempts, plaintiff obtained a reversal of his conviction in
2005, when the Wisconsin Supreme Court granted him a new
trial on the ground that the jury had not been able to
consider important DNA evidence. However, it was not until
2009 that the charges against plaintiff were dismissed, when
a state trial court concluded that various instances of
prosecutorial misconduct precluded a retrial.
2012, plaintiff filed this lawsuit without a lawyer,
contending that various officials involved in his criminal
case had violated his constitutional rights, leading to both
his conviction and the delay in the dismissal of his charges
after the state supreme court granted him a new trial.
(Plaintiff later obtained counsel.) After reviewing multiple
iterations of plaintiff’s complaint and entertaining
motions to dismiss filed by various defendants, I allowed the
following claims to proceed: (1) defendant John Norsetter,
the assistant district attorney assigned to plaintiff’s
case, violated plaintiff’s right to due process of law
by losing or destroying multiple pieces of potentially
exculpatory evidence before plaintiff was tried in 1981; and
(2) defendants Karen Daily and Daniel Campbell (two analysts
for the state crime lab) and defendant Marion Morgan (a
detective for the Madison Police Department) violated
plaintiff’s right to due process by destroying
potentially exculpatory DNA evidence in the form of a semen
stain in 2006. Defendants Norsetter, Daily and Campbell filed
an interlocutory appeal, relying on the doctrine of qualified
immunity, but the Court of Appeals for the Seventh Circuit
affirmed and remanded the case for further proceedings.
Armstrong v. Daily, 786 F.3d 529 (7th Cir. 2015).
motions are now before the court: (1) motions for summary
judgment filed by defendant Norsetter, dkt. #117, defendant
Morgan, dkt. #130, and defendants Daily and Campbell, dkt.
#126; (2) plaintiff’s motion for leave to file a
supplement to his proposed findings of fact, dkt. #197; (3)
defendants Daily’s and Campbell’s motion to
strike the supplemental report of Karl Reich, dkt. #200; and
(4) defendant Morgan’s unopposed motion to join
defendant Daily’s motion to strike, dkt. #213.
the motions in reverse order, I am granting defendant
Morgan’s unopposed motion, but I am denying as
unnecessary the motion to strike Reich’s supplemental
report. Even if I do not consider the opinions in the
supplemental report, it makes no difference to the resolution
of the summary judgment motions. I am granting
plaintiff’s motion for leave to file a supplement to
his proposed findings of fact because I see no unfair
prejudice to defendants in allowing him to do so. Plaintiff
does not seek to file new proposed findings of fact; rather,
he submitted a handful of newly received documents that
provide further support for existing proposed findings of
fact. Defendants do not raise substantive objections to these
documents, which is not surprising because they came from the
Madison Police Department and the Dane County District
respect to the motions for summary judgment, plaintiff
concedes that he does not have sufficient evidence to show
that defendant Campbell was involved in a constitutional
violation, so I am dismissing Campbell from the case.
However, I am denying the motions for summary judgment as to
defendants Norsetter, Daily and Morgan.
allegations against defendants Norsetter, Daily and Morgan
are serious, but the evidence that plaintiff has gathered
against these defendants is far from conclusive. Each of the
defendants has a plausible explanation for his or her actions
that, if believed, would defeat plaintiff’s claims.
However, at this stage of the case, I must draw all
reasonable inferences in plaintiff’s favor. Further,
the court’s task at summary judgment is not to
determine which party has the most compelling narrative. Even
when the evidence for one side seems stronger and more
persuasive, courts must resist the temptation to weigh the
evidence and act as the factfinder. Miller v.
Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014); McCann
v. Iroquois Memorial Hospital, 622 F.3d 745, 752 (7th
Cir. 2010); Kodish v. Oakbrook Terrace Fire Protection
District, 604 F.3d 490, 507 (7th Cir. 2010). Because I
cannot say that plaintiff’s version of events is
“so incredible or implausible . . . that a reasonable
jury could not find in his favor, ” Kodish,
604 F.3d at 507, plaintiff is entitled to a trial so that he
may attempt to persuade a jury that defendants violated his
constitutional rights. Plaintiff has raised legitimate
questions about defendants’ conduct that simply cannot
be answered in the context of a motion for summary judgment.
the parties’ proposed findings of fact and the record,
I find that the following facts are undisputed.
1980, Charise Kamps was raped and murdered. Plaintiff Ralph
Armstrong, plaintiff’s brother Stephen Armstrong and
plaintiff’s fiancée Jane May all spent time with
Kamps the day she died. May found Kamps’s body in
Kamps’s apartment in Madison, Wisconsin, on June 24,
1980, around 12:40 p.m.
Plaintiff’s Discussions with the Police
24, 1980, around 2:00 p.m., plaintiff went to the police
station, where he was questioned by detectives. Plaintiff
waived his Fifth Amendment rights and voluntarily gave
statements to the police. Plaintiff told detectives that
Kamps had been looking for cocaine, but that he had not used
cocaine with Kamps the night that she was murdered. (Later,
police received a report that Kamps had been murdered in the
context of a drug deal.) In addition, he consented to the
search of his person, car and apartment.
Defendant Norsetter’s Assignment to the Case
Doyle (the district attorney at the time) assigned the Kamps
case to defendant John Norsetter, who had been an assistant
district attorney for two and a half years. Norsetter had
prosecuted only one other murder case, a few months earlier.
During his investigation of the case, Norsetter became
convinced that plaintiff had murdered Kamps and he became
resolved to “work vigorously to ensure that [plaintiff]
was convicted.” Trans., April 1, 2009 hearing, dkt.
#152 at 68. Once he was convinced, Norsetter would not change
his mind regardless what the forensic tests might show.
Id. at 94-95.
a charging decision was made, defendant Norsetter assisted
police with their investigation. Detectives sought legal
advice from Norsetter about various issues.
24, 1980, Doyle and defendant Norsetter went to the crime
scene, arriving at 2:10 p.m. It was the first time that
Norsetter had been at the scene of a murder and it made him
“emotional.” Doyle and defendant Norsetter
remained together for the duration of the visit, which lasted
only a few minutes. They did not progress further than a step
or two into the apartment. Although Norsetter took notes
during the visit, he does not know what happened to those
Norsetter returned to the City County Building, which houses
both the police department and the district attorney’s
office. According to a June 24, 1980 police report, while at
the police station, Detective David Listug asked Norsetter
whether the detective could interview plaintiff’s
Handling of Drug-Related Items
9:25 p.m. and 9:50 p.m. on June 24, 1980, detectives John
Sheskey, Charles Cole, and David Listug were at the Kamps
apartment to collect and catalog the drug-related evidence
found at the scene. Det. Listug took the following items from
Kamps’s kitchen table: two mirrors, a silver snorting
straw and a razor blade. All of those items may be used to
the police looked for fingerprints throughout Kamps’s
apartment, the mirrors, straw and razorblade were never
tested for fingerprints. There is no record that defendant
Norsetter requested that these items be tested or that he
even inquired about their existence.
to a June 24 police report, these items “were
destroyed” by Detective Listug. No reason is given for
to Dennis Walker, plaintiff’s police practices expert,
“because of the substantial potential importance for
the evidence, including exculpatory evidence that the real
murderer’s fingerprints could be on the mirrors, a
reasonable detective would not have destroyed the evidence
without being directed to by a superior officer or
prosectuor.” Dkt. #186 at 8. According to Grant
Humerickhouse, a detective with the Madison Police Department
who testified about “the policies related to the
destruction of recovered evidence at the Madison Police
Department from 1980 to present, ” dkt. #164 at 5,
“[i]n 1980, a detective could use [his or her]
discretion to keep or destroy evidence based on any number of
factors, per policy, ” id. at 47. One of the
factors influencing that discretion was whether the district
attorney’s office was involved in the investigation.
Id. at 36.
June 25, 1980 police report, Detective Listug stated that
“originally [he] was going to destroy the drug items
seized from” Kamps’s apartment, but instead he
inventoried them under property tag H2844 after speaking with
Jeffrey Frye, a lieutenant. The June 25 report does not
identify what the “drug items” were. At his
deposition, Detective Listug could not recall his
conversation with Frye or the items that he inventoried.
Though most of the property tags generated in the
investigation listed all of the items included under the tag,
H2844 does not identify the items inventoried.
1985, Theodore Mell, a detective supervisor, authorized the
destruction of the items included under H2844. In 1994,
department records show another authorization for the
destruction of the same items.
3, 1980, defendant Norsetter set up a procedure for witness
Ricci Orebia to identify the person she saw going in and out
of Kamps’s apartment building between 3:00 a.m. and
4:00 a.m. on June 24, 1980. Several aspects of the lineup
were suggestive: (1) only plaintiff was carried across the
street; (2) at least two of the participants had on obvious
wigs; and (3) the other two did not match the witness’s
description at all because they were “fat”; in
addition, one had straight hair. Orebia picked plaintiff out
of the lineup.
the lineup, Orebia told plaintiff’s lawyer that
plaintiff was “not the guy. He’s too tall.”
After that, Orebia was contacted by the police and they
brought her to the police department. “Somebody”
at the department told her, “stop talking, you’re
wrecking our case.” She does not remember who made the
statement or whether Norsetter was present.
Plaintiff is Charged and Convicted
August 12, 1980, defendant Norsetter filed a criminal
complaint, charging plaintiff with sexually assaulting and
murdering Kamps. On March 24, 1981, a jury convicted
plaintiff of both crimes. Plaintiff continued to maintain his
innocence, filing multiple challenges to his conviction in
both state and federal court. These challenges were
unsuccessful for 25 years.
Allegation against Stephen Armstrong
1995, defendant Norsetter received a telephone call from a
witness, Deborah Holsomback, who told Norsetter that Stephen
Armstrong (plaintiff’s brother) had confessed to
Kamps’s murder. In response, Norsetter told Holsomback
that he “had the right man.” (It is disputed
whether Norsetter also stated that he “would never
listen to any other evidence.”) Norsetter did not
follow up on Holsomback’s statement.
Defendant Daily Joins the Case
Karen Daily was a senior forensic scientist in the Wisconsin
State Crime Lab. In 2000 or 2001, defendant Daily was
assigned to the Kamps case. Because Daily had not been part
of the case since the beginning, the police department sent
her “all the documentation and photographs” the
department had that were related to the case. Dkt. #113 at
249. She reviewed at least some of this material.
Plaintiff’s Conviction is Vacated
12, 2005, the Wisconsin Supreme Court granted plaintiff a new
trial, relying on evidence that was not available in 1981 to
conclude that “the real controversy was not fully
tried.” State v. Armstrong, 2005 WI 119,
¶ 163, 283 Wis.2d 639, 700 N.W.2d 98. In particular, the
court relied on (1) DNA testing of two hairs found on
Kamps’s robe belt, which excluded plaintiff as the
source; (2) the absence of any finding of blood on “a
piece of cloth accompanying slides allegedly prepared from
the hemostick swabs and scrapings from [plaintiff]'s
thumbs and large toes”; and (3) a 1990 DNA analysis
that excluded plaintiff as the source of the semen on
Kamps’s bathrobe. Id. at ¶ 95.
20, 2005, plaintiff’s brother, Stephen Armstrong, died.
His body was cremated. (The parties do not say how he died or
who made the decision to cremate his body.)
Defendant Morgan’s Assignment to the Case
Marion Morgan was a detective in the Madison Police
Department’s “sensitive crimes unit.” After
the state supreme court’s decision, she was the lead
detective on the case, which meant that she was responsible
for determining the direction of the investigation and
deciding who should be interviewed. Defendant Norsetter was
still working for the district attorney’s office, so
the case was reassigned to him.
27, 2005, defendants Norsetter, Daily and Morgan participated
in a meeting to discuss DNA testing of various pieces of
evidence. In an email dated the same day, analyst Daily
wrote, “Y-STRs? Just wondering.” Y-STR is a type
of DNA testing. It is different from a STR test in that the
Y-STR test specifically analyzes markers or areas of the DNA
on the Y chromosome, so it is specific to male individuals.
It cannot distinguish among paternal relatives, but Daily did
not disclose this limitation.
Procedures for the ...