A man who spent nearly three decades behind bars before ultimately being acquitted of the charges may not sue the Denver prosecutors and law enforcement officials whose missteps contributed to his wrongful incarceration, the federal appeals court based in Colorado ruled on Tuesday.
Clarence Moses-EL received a 48-year prison sentence for the 1987 assault and rape of a woman in Five Points. Although the victim, identified by the initials T.S., did not initially name Moses-EL as a suspect, she told police he was her assailant after reportedly dreaming about the attack.
Moses-EL was incarcerated for 28 years despite several flaws in his case, including the Denver Police Department's destruction of evidence before DNA testing could occur. After a jury acquitted Moses-EL at a second trial in 2016, he sued various government officers, including the former district attorney of Denver, for violating his rights with their erroneous prosecution.
But after a lower court judge determined none of the defendants had violated Moses-EL's constitutional rights and dismissed his case, a three-judge panel for the U.S. Court of Appeals for the 10th Circuit reached the same conclusion this week.
"Moses-EL has not plausibly alleged any constitutional claim that Denver fabricated, destroyed, or systematically mishandled evidence; that he was maliciously prosecuted; or that Denver was ever aware that its labs and testing procedures were deficient in Moses-EL’s case," wrote Judge Gregory A. Phillips in the panel's May 31 order.
Ian P. Farrell, an associate professor of law at the University of Denver, criticized the 10th Circuit's decision for failing to hold government officials accountable for their resistance to clearing Moses-EL's name.
"The opinion shows just how much the legal deck is stacked against individuals who claim their rights have been violated," Farrell said. "Mr. Moses-EL will never have his day in court, will never get the opportunity to put the evidence of his mistreatment before a jury."
The case began when T.S. came home from a party at a nearby home early in the morning in August 1987. Shortly after 2:15 a.m., an assailant entered her home, beating and raping her. T.S. told police and her sister the names of various men who had been at the party as possible suspects — none of whom was Moses-EL.
Later, while in the hospital and medicated, T.S. "re-lived" the attack in a dream and identified Moses-EL as the man who assaulted her. Detective James Huff, now deceased, reportedly had doubts about that claim, but law enforcement continued with a focus on Moses-EL. Kathren Brown-Dressel, a forensic serologist, conducted blood tests from swabs taken of T.S. She determined that no man, including Moses-EL, could be excluded as a suspect.
A jury convicted Moses-EL in 1988. Four years later, Moses-EL asserted his trial lawyer had been ineffective for failing to conduct DNA testing. After a favorable ruling in the Colorado Court of Appeals, Moses-EL raised $1,000 from his fellow inmates to perform the DNA test. The Denver Police Department sealed the forensic samples in Moses-EL's case and wrote "DO NOT DESTROY" on the box.
However, Huff, who was not told of the significance of the evidence, authorized the materials for destruction before DNA testing could take place.
A break came in Moses-EL's case in 2012, when L.C. Jackson, a man convicted of other sex crimes whom T.S. initially named as a possible suspect, indicated to Moses-EL's lawyers that he had been the one who attacked T.S. The new evidence triggered further proceedings in state court, culminating in a new trial for Moses-EL and his ultimate acquittal.
Moses-EL brought a civil lawsuit against Huff, Brown-Dressel and others alleging malicious prosecution, failure to prevent the destruction of evidence, and a conspiracy to deprive him of his rights. He also alleged the City and County of Denver had a pattern of mishandling evidence and failing to train forensic laboratory personnel.
In March 2019, U.S. District Court Senior Judge Marcia S. Krieger dismissed the entirety of Moses-EL's claims. She explained that the U.S. Constitution provides protections against purposely harmful conduct by government officials, but not against police negligence or incompetence.
For example, Huff allegedly marked the evidence for destruction because he did not look at the notes accompanying the materials, and expected that someone would have told him explicitly that the evidence needed to be preserved, given the age of the case. Krieger acknowledged that Huff was careless, but he did not act maliciously.
"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. 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," she wrote. "But not all systemic failures give rise to constitutional claims."
Moses-EL appealed to the 10th Circuit, claiming the allegations plausibly stated police and prosecutors purposefully intended to obtain and maintain Moses-EL's conviction despite the presence of information casting doubt on his culpability. A group of disability and civil rights organizations also weighed in on Moses-EL's behalf, arguing that Krieger mistakenly held Moses-EL to a higher standard of showing that his claims were not just plausible, but probable.
During oral arguments before the 10th Circuit panel last year, the appellate judges were skeptical of Moses-EL's attempt to show the defendants intentionally deprived him of his rights through their misguided efforts to prove his guilt.
“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,” said Senior Judge Paul J. Kelly Jr.
While Phillips briefly acknowledged in the panel's order that Krieger had mistakenly held Moses-EL's claims to a higher standard than the law requires, a review of the case by the 10th Circuit showed Moses-EL had still not shown he was subjected to malicious prosecution. His claim failed, Phillips wrote, because Moses-EL did not plausibly allege that law enforcement lacked probable cause to charge him, or that they acted maliciously.
"Though investigating Jackson may have proven 'fruitful' with the 'benefit of hindsight,' Detective Huff did not ignore a potential alibi or other witnesses," Phillips wrote. "Additionally, Moses-EL does not allege that Detective Huff coerced others to stop investigating other possible leads, and Moses-EL must acknowledge that T.S. has steadfastly identified him as the rapist."
Any claim for destroyed evidence, the court noted, required Moses-EL to show the police acted in bad faith, according to the U.S. Supreme Court's decision in Arizona v. Youngblood, a case that also established police have no constitutional duty to perform particular tests on evidence. Although Youngblood is over three decades old, only recently has the Colorado Court of Appeals indicated that it may evaluate going forward whether patterns of evidence destruction within law enforcement agencies amount to constitutional violations.
In addition to finding no bad faith by the Denver Police Department, Phillips also suggested Moses-EL was partly responsible for the destruction by failing to quickly retrieve the evidence before it disappeared.
As for Brown-Dressel, the panel believed she had not acted maliciously in reaching her conclusions after a blood analysis, even if other experts would disagree about the findings. Nor could Mitch Morrissey, the elected district attorney of Denver at the time of Moses-EL's second trial, be held liable for allegedly participating in a conspiracy or spreading lies about the case.
Taken together, the panel did not find the defendants' conduct was "conscience-shocking."
Farrell, the law professor, said it is conscience-shocking to him that Denver authorities would have prosecuted Moses-EL twice given the information they had. He is disappointed the Denver District Attorney's Office pursued a second criminal trial and fought "tooth and nail" in the civil lawsuit, he added.
"Think about it – if another individual or a company causes you harm, you are allowed to sue them for compensation. But if the government wrongfully and through its egregious negligence takes away several decades of your life, the law says you can't get compensation — because they didn't actually violate your rights in the first place," Farrell said.
The attorneys for Moses-EL and the defendants did not respond to a request for comment. Moses-EL also successfully applied for compensation under a 2013 state law that entitled him to approximately $2 million for his wrongful incarceration.
The case is Moses-EL v. City and County of Denver et al.