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Armstrong v. Norsetter

United States District Court, W.D. Wisconsin

July 29, 2016



          BARBARA B. CRABB, District Judge.

         This 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.

         In 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).

         Several 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.

         Taking 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 Attorney’s Office.

         With 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.

         Plaintiff’s 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.

         From the parties’ proposed findings of fact and the record, I find that the following facts are undisputed.


         A. The Crimes

         In June 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.

         B. Plaintiff’s Discussions with the Police

         On June 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.

         C. Defendant Norsetter’s Assignment to the Case

         James 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.

         Before a charging decision was made, defendant Norsetter assisted police with their investigation. Detectives sought legal advice from Norsetter about various issues.

         On June 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 notes.

         Defendant 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 fiancée.

         D. Handling of Drug-Related Items

         Between 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 ingest cocaine.

         Although 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.

         According to a June 24 police report, these items “were destroyed” by Detective Listug. No reason is given for doing this.

         According 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.

         In a 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.

         In 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.

         E. Lineup

         On July 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.

         After 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.

         F. Plaintiff is Charged and Convicted

         On 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.

         G. Allegation against Stephen Armstrong

         In 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.

         H. Defendant Daily Joins the Case

         Defendant 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.

         I. Plaintiff’s Conviction is Vacated

         On July 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.

         On July 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.)

         J. Defendant Morgan’s Assignment to the Case

         Defendant 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.

         On July 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.

         K. Procedures for the ...

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