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Bunch v. United States

United States Court of Appeals, Seventh Circuit

January 30, 2018

Kristine Bunch, Plaintiff-Appellant,
v.
United States of America, Defendant-Appellee.

          Argued September 7, 2017

         Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. l:14-cv-438-WTL-DKL - William T. Lawrence, Judge.

          Before Wood, Chief Judge, and Bauer and Sykes, Circuit Judges.

          WOOD, Chief Judge.

         Kristine Bunch spent 17 years in an Indiana prison based on a state conviction for the murder of her son. Bunch's conviction rested on testimony and evidence apparently fabricated by a federal forensic chemist, William Kinard. Kinard's conduct came to light during post-conviction proceedings in Indiana's courts, prompting the Indiana Court of Appeals to reverse her conviction. The Indiana Supreme Court later denied transfer. With the criminal conviction wiped out, Bunch became free to seek some recompense for the wrongful conviction and years of liberty she lost. She is attempting to do so in this suit.

         At the time of Bunch's wrongful conviction, Kinard was a forensic chemist with the federal Bureau of Alcohol, Tobacco, and Firearms (ATF). Bunch therefore sued the United States as his employer, invoking the Federal Tort Claims Act (FTCA), 28 U.S.C. §§1346, 2671-80. That suit was consolidated with a separate action Bunch brought against two Indiana state fire marshal investigators under 42 U.S.C. § 1983. With respect to the suit against the United States, the district court concluded that the intentional-tort exception to the general waiver of immunity found in the FTCA applied. It also ruled that the exception to that exception for torts committed by investigative or law-enforcement officers did not apply, and on that basis it granted summary judgment in the United States's favor. With that work done, the court certified under Federal Rule of Civil Procedure 54(b) that the suit against the United States was fully resolved and that there was no just reason to delay an appeal.

         It may well be, in the final analysis, that the intentional-tort exception precludes suit against the United States. But the record was not developed fully enough in the district court to support such a conclusion at this stage. We do not sit as triers of fact, and so it would be improper for us to supervise the collection of further evidence. We conclude that summary judgment was premature and that further proceedings must occur in the district court before the immunity issue can finally be resolved.

         I

         Bunch's travails began when a fire consumed her home and claimed the life of her three-year-old son on June 30, 1995. Two investigators from the Indiana Fire Marshal's office, Bryan Frank and James Skaggs, quickly decided that arson had caused the fire and that Bunch was the arsonist. They sent samples from Bunch's home to ATF for testing. It fell to Kinard, an ATF forensic chemist and gunshot-residue analyst-specialist, to analyze the samples. His results did not confirm Frank and Skaggs's theory. To the contrary, his draft report stated that no accelerants were present in the two places where the Indiana investigators thought the fire had begun: the boy's bedroom and a spot in the living room. Although samples from elsewhere in the house tested positive for heavy petroleum distillates, Kinard concluded that these results were "consistent with the presence of kerosene, for which there was an innocent explanation."

         This was not what Frank and Skaggs wanted to hear. Bunch alleges that they communicated their disappointment to Kinard, who agreed to fabricate findings in his official report. He apparently did just that: the official report confirmed the presence of accelerants in the two locales identified by the Indiana investigators. It also said that the heavy petroleum distillates were consistent with the presence of a broad array of chemicals, many of which were highly suspicious. The Indiana investigators submitted only the final, official, version of Kinard's report to the state prosecutors, and Kinard's trial testimony stuck to that version. No one revealed the existence of the draft report to Bunch, nor did anyone alert her to the dramatic shift in Kinard's conclusions.

         In 1996 an Indiana jury convicted Bunch of felony murder, and the court sentenced her to 60 years' imprisonment. As the Indiana Court of Appeals later noted, "no witness testified to seeing Bunch set the fire or hearing her talk about doing so; there was no evidence Bunch had purchased a liquid accelerant and no evidence of flammable liquid on the clothes she was wearing; and there was no testimony regarding a motive for her setting the fire." Bunch v. State, 964 N.E.2d 274, 280 (Ind.Ct.App. 2012). Thus, "[t]he State's case relied largely on expert testimony describing two points of origin for the fire from visual inspection and testing of floor samples showing evidence of a liquid accelerant." Id. In other words, Bunch asserts, the state relied on the testimony of Frank and Kinard, bolstered by Kinard's falsified report.

         Bunch filed a petition for post-conviction relief in 2006. In the course of those proceedings, Kinard's draft report came to light. The Indiana Court of Appeals reversed Bunch's conviction, holding that the state's failure to produce the draft report had violated Brady v. Maryland, 373 U.S. 83 (1963). Bunch, 964 N.E.2d at 304. In addition, the court held that significant advances in the science of fire-victim toxicology independently justified granting post-conviction relief. Id. After the Supreme Court of Indiana denied the state's petition to transfer, Indiana declined to retry Bunch.

         At that point Bunch sued the United States under the FTCA because Kinard was acting within the scope of his federal employment when he prepared the reports. She raised claims of both malicious prosecution and intentional infliction of emotional distress arising out of the malicious prosecution. As we noted, the district court later consolidated this suit with her separate section 1983 action against Frank and Skaggs. The court ultimately resolved her FTCA suit with its decision that the United States is ...


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