Three federal judges considered on Tuesday whether to allow a man who spent nearly three decades in prison before his acquittal in 2016 to sue the city of Denver as well as the prosecutors and law enforcement who put him behind bars.

Clarence Moses-EL maintained his innocence in the 1987 rape of a woman in Five Points. The victim named him not upon her initial contact with police, but only after a dream. Following his conviction, he raised $1,000 from fellow inmates to test DNA evidence, which the Denver Police Department instead destroyed. Another man, previously convicted of rape, even confessed to having sex with the victim the night of the crime.

Following a second trial that resulted in his acquittal, Moses-EL filed a civil suit alleging malicious prosecution. In March 2019, U.S. District Court Senior Judge Marcia S. Krieger dismissed the lawsuit, finding Moses-EL had failed to sufficiently allege a violation of his constitutional rights.

“To be clear: what happened to Mr. Moses-El was horrifyingly unjust and represents troubling failures at multiple levels of the law enforcement and criminal justice systems,” she wrote. “Mr. Moses-El and his supporters have every right to be upset and angry at the many ways in which city and state institutions failed to protect him. But not all systemic failures give rise to constitutional claims.”

Moses-EL turned to the U.S. Court of Appeals for the 10th Circuit, where a three-judge panel heard his attorney, Gail Johnson, argue that Krieger had instituted a higher-than-normal burden for Moses-EL’s allegations. In dismissing a claim against the doctor whose blood test showed an apparent mismatch between the blood collected from a so-called rape kit and Moses-EL’s, Krieger believed Moses-EL had to “establish a probability, not a possibility, that Dr. [Kathren Brown-Dressel] acted with malice against him.”

Judge Gregory A. Phillips wondered if Krieger had meant to say, “You can’t just come in and say we have this possibility, and it’s just as good as the rival interpretations.” He referenced the 2008 U.S. Supreme Court decision of Ashcroft v. Iqbal, which laid out the need for a claimant to show a certain degree of intentionality behind a government employee’s harmful actions.

“I think when you boil down your argument, it is the district attorney lacked probable cause to try your client for rape. Is it your position that there was no probable cause to arrest and try him in 1988?” asked Chief Judge Timothy M. Tymkovich.

Johnson responded in the affirmative. “The only thing tying our client to this case was a narcotic, dream-induced identification,” after the initial police questioning, she said. “It is as if the district attorney said, ‘we’re gonna find probable cause based on something a psychic said.'”

The third member of the panel, Senior Judge Paul J. Kelly, Jr., grilled Johnson for bringing a claim against the detective in the case, James Huff, now 15 years after his death, and called the lawsuit “frivolous.”

“I want to know what’s the basis of your lawsuit against Detective Huff, who did what he was told, he told what he found, and I think you want him to go out on a charging horse and find the true answer when he’s just an officer working for the DA,” Kelly said. “They’re gonna charge [Moses-EL] with whatever they charged him with. It seems to me it’s a frivolous case.”

Melanie Lewis, an attorney representing the city, as well as Huff and Brown-Dressel, conceded Krieger used “imprecise” language, but agreed Moses-EL’s allegations did not amount to malice.

“These are ‘should have known’ allegations, which is the classic hallmark of negligence, not of the malice standard that is required for a malicious prosecution claim,” she contended.

The lawyer for former Denver District Attorney Mitch Morrissey, Andrew Ringel, added that Moses-EL’s acquittal while Morrissey was the city’s top prosecutor voided the malicious prosecution arguments.

“All these claims don’t have a basis because of the acquittal. There are no cases that say if you are acquitted in a criminal trial, you can state a malicious prosecution claim. That’s not what the law is,” he said.

Thanks to a 2013 change in state law, Moses-EL was entitled to receive approximately $2 million from the state – $70,000 for each year incarcerated. But Erik Klein, another attorney for Moses-EL, told CPR in 2019 that the civil lawsuit served a different purpose.

“The state compensation statute really can’t even begin to compensate for spending almost three decades in prison for a crime he didn’t commit,” Klein said at the time. “We feel that the people who are responsible for that should be held accountable and there should be something to disincentiv[ize] government actors in the future to make sure this doesn’t happen to anybody else.”

The case is Moses-EL v. Denver et al.