# Cosenza v. City of Worcester

> District Court, D. Massachusetts · January 9, 2023

URL: https://www.frixlaw.com/law-library/cases/10200767

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** January 9, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10200767

## How later opinions describe it (automated extraction)

- rejecting defendant’s attempt to limit plaintiff to a Brady-style Due Process claim when a claim based on deliberate deception was plainly viable
- noting the “horror” of being incarcerated for a crime you did not commit

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
NATALE COSENZA, )
) CIVIL ACTION
Plaintiff, ) NO. 4:18-10936-TSH
)

v. )

)

CITY OF WORCESTER, Massachusetts, )

KERRY HAZELHURST, JOHN )

DOHERTY, T.J. COAKLEY, MARK )
RICHARDSON, ALLAN BURNES, )
DANIEL BENEDICT, BRIAN DONOHUE, )
ROBERT TRUGEON, DAVID GRADY, )
DARLENE ROCHEFORD, and AS-YET )
UNKNOWN WORCESTER POLICE )
OFFICERS, )
)
Defendants. )
______________________________________ )

ORDER AND MEMORANDUM ON DEFENDANT’S RENEWED MOTION FOR
JUDGMENT AS A MATTER OF LAW (Docket No. 254)

1/9/2023
HILLMAN, D.J.

Natale Cosenza (“Cosenza” or “plaintiff”) brought a § 1983 action alleging constitutional
claims against various defendants stemming from his conviction and sixteen-year incarceration
for armed burglary. At trial, the defendants were Kerry Hazelhurst (“Hazelhurst”) and John
Doherty (“Doherty”) (collectively “defendants”), and four claims were presented to the jury
regarding suppression or fabrication of evidence. The jury found Hazelhurst fabricated and
suppressed evidence in Cosenza’s criminal trial and that Hazelhurst and Doherty conspired to
violate Cosenza’s civil rights and awarded compensatory and punitive damages. For the reasons
below, the defendants’ renewed motion for judgment as a matter of law is denied.
Background
Around 4 A.M. on August 14, 2000, Melissa Horgan (“Horgan”) was awoken in her
bedroom by an intruder. After she asked him who he was, he beat her with a hard object and
attempted to climb onto her bed, but Horgan kicked the man repeatedly and he fled. Immediately

after the attack, Horgan identified the attacker as a white man in his underwear, a t-shirt, with a
white piece of clothing on his head, and that she had never seen him before.
The officer who responded interviewed Horgan’s neighbors in her condominium
building. One neighbor, Robert Payton (“Payton”), told the officer he was having problems with
Cosenza, and that Cosenza had previously entered the building by climbing onto a shared
balcony and had knocked on several doors asking for money. Cosenza lived in a nearby building
in the same complex but did not have access to Horgan and Payton’s building. The officer
created a report listing Cosenza as a suspect. On August 15, 2000, Hazelhurst, a detective, was
assigned to the case, reviewed the officer’s report, and set up a photo array with Horgan. The
array used Cosenza’s picture and pictures of eight men with physical characteristics similar to

Cosenza. At the photo array, Horgan identified Cosenza as her attacker. In a witness statement
made that day, after the photo array, Horgan identified her attacker as Cosenza. The statement
also mentioned that the attacker had medium-to-short dark hair, the incidents between Cosenza
and Payton, and identified Cosenza as someone who had knocked on her door. Specifically, prior
to the attack, Cosenza had knocked on Horgan’s door while she was not home and Horgan’s
roommate told her about the incident, though at the time neither knew who had knocked nor who
Cosenza was.
Horgan did not remain at her apartment after the attack. On August 15, 2000, Horgan’s
sister and mother picked up clothes from her bedroom. On August 16, Horgan returned to her
apartment with Hazelhurst and other detectives and picked up more clothes from her bedroom.
During August, two of Horgan’s nephews stayed at the apartment along with other male guests.
There is some debate about when Horgan returned again to pick up additional clothes, but the
parties agree that she did. On September 13, 2000, Horgan was emptying a bag of clothes that

had been retrieved from her apartment and found a pair of shorts. Not recognizing them, she
checked with her family but none of them recognized the shorts. She called Hazelhurst, who
collected the shorts and sent them to the state lab to be tested. The shorts had semen stains that
did not match Cosenza. Hazelhurst wrote an incident report about the shorts on September 17,
2001, after the DNA test came back negative, and told the prosecutor before Cosenza’s criminal
trial that he had searched the apartment for men’s clothing on August 16, 2000.
Cosenza was charged was intent to rape, assault and battery with a dangerous weapon,
and burglary, and was indicted on October 13, 2000. Cosenza moved to suppress the photo array
as unduly suggestive, which was denied. At the suppression hearing Hazelhurst admitted that it
was likely he told Horgan Cosenza’s name after she identified him and that he lived in her

building. At trial, the Commonwealth relied heavily on Horgan’s identification and Hazelhurst
testified he doubted he bolstered her identification with negative information about Cosenza.
Cosenza maintained his innocence, pointing to the shorts and the unreliability of Horgan’s
identification. The Commonwealth argued that the shorts were left by one of the male guests
who stayed in August. In addition, Hazelhurst testified that he searched the apartment for men’s
shorts or pants on August 16, 2000, to no avail. Cosenza was convicted of armed burglary.
Cosenza moved for a new trial, arguing that it was ineffective for his counsel to not
contact all the guests who stayed at Horgan’s apartment, which was denied. In 2015, Cosenza
moved for a new trial, arguing that expert testimony is necessary to aid a jury in understanding
the reliability of eyewitness identifications. That motion was granted. Prior to the new trial,
Cosenza moved to suppress the identification, arguing the photo array was unduly suggestive,
which was granted. The Commonwealth filed a nolle prosequi and the case was closed.
Subsequently, Cosenza filed the instant case in this court.

Analysis
1. Motion for Judgment Notwithstanding the Verdict
“[C]ourts may only grant a judgment contravening a jury’s determination when the
evidence points so strongly and overwhelmingly in favor of the moving party that no reasonable
jury could have returned a verdict adverse to that party.” Jones ex rel. U.S. v. Mass. Gen. Hosp.,
780 F.3d 479, 487 (1st Cir. 2015) (citation omitted). In reviewing the record during a motion for
a directed verdict under 50(b), the court must draw “all reasonable inferences in favor of the
verdict” and “refrain from passing judgment upon the credibility of witnesses, resolving
evidentiary conflicts, or evaluating the weight of the evidence.” Full Spectrum Software, Inc. v.
Forte Automation Sys., Inc., 858 F.3d 666, 673, 671 (1st Cir. 2017). If “the record supports

conflicting versions of the truth, it [becomes] the jury’s function—not the court’s—to choose
between these versions.” Trainor v. HEI Hospitality, LLC, 699 F.3d 19, 29 (1st Cir. 2012).
a. Suppression
“[L]aw enforcement officers have a . . . duty to turn over to the prosecutor any material
evidence that is favorable to the defendant. Drumgold v. Callahan, 707 F.3d 28, 38 (1st Cir.
2013). Although this Court instructed the jury on Drumgold-style claims, Defendants do not
challenge the jury instructions, only whether what the defendants term a “deliberate deception”-
style claim is supported by the evidence (they incorrectly argue Drumgold-style claims do not
exist). Although the duty in Drumgold is relatively recent, it has been clear since at least the
1940s that officers cannot deliberately conceal exculpatory evidence. Pyle v. Kansas, 317 U.S.
213, 216 (1942); see also Mooney v. Holohan, 294 U.S. 103, 112, (1935) (the state may not
obtain conviction by “deliberate deception”); Haley v. City of Boston, 657 F.3d 39, 50 (1st Cir.
2011) (same). To succeed on a Drumgold-style claim, a plaintiff must show (1) suppression of

exculpatory evidence and (2) that the exculpatory evidence was material and that it caused his
conviction.1 To succeed on what this Court will refer to as a Pyle-style claim, the plaintiff must
additionally show deliberate deception. Deliberate deception exists if the defendant officer (1)
knows the information is exculpatory (2) knows the defense requested exculpatory information
and (3) fails to disclose the information to the prosecutor. Haley, 657 F.3d at 50-51.
At trial the plaintiff argued that the additional details in the post-array witness statement,
along with Horgan’s professed lack of knowledge as to who Cosenza or the person knocking on
doors was, demonstrated that Hazelhurst provided Horgan with that information after her
identification, thus bolstering the identification by imputing to Cosenza a criminal or at least
unsavory nature. Furthermore, Hazelhurst admitted that the information about Payton’s

interactions with Cosenza was in the report he reviewed prior to conducting the photo array.
Finally, that discrepancy was suppressed because at the criminal trial Hazelhurst testified that he
“doubted” that he bolstered Horgan’s testimony.
The jury was reasonable in inferring that Hazelhurst bolstered Horgan’s identification by
giving her negative information about Cosenza. Having found the bolstering occurred, it was
necessarily suppressed because Hazelhurst never notified the prosecutor. The jury might have

1 Technically, materiality and causality are separate prongs, but the “factual causation inquiry essentially
replicates the materiality inquiry with a heightened burden of proof.” Drumgold, 707 F3d at 49. While the
First Circuit has held that juries must consider these questions separately, this Court considers them in a
single analysis for the purpose of this motion. Whenever this Court rules that a reasonable jury could find
the “causal” requirement satisfied, it necessarily follows a jury could find “materiality” satisfied.
reasonably found that such evidence impeached Horgan and was therefore exculpatory, the
theory the Court assumed at summary judgment. Wearry v. Cain, 577 U.S. 385, 392-93 (2016).
At trial, plaintiff focused on another theory, that Horgan underwent “unconscious transference.”
Plaintiff theorized that the circumstances of the initial identification were not conducive to a

reliable identification. Therefore, it was the bolstering of the identification that helped cement
Cosenza as the attacker in Horgan’s mind, leading to the confidence in her identification, a
confidence that continued to this civil trial. That theory was supported by an unrebutted expert
witness. The jury could have reasonably credited that theory and found Horgan would not have
maintained her identification, or at least not to the extent she did, had the bolstering been
revealed. Regardless of the theory, the value of the inculpatory evidence the Commonwealth had
at the criminal trial would have decreased, and the civil jury was reasonable in finding that the
criminal jury would not have found, beyond a reasonable doubt, that Cosenza was guilty,
satisfying the causal requirement. Thus, a Drumgold-style claim was supported by the evidence.
As to deliberate deception, when asked at the criminal trial whether he fed Horgan

negative information about Cosenza, Hazelhurst testified “I doubt it. I don’t think so.” He also
testified he understood bolstering was improper and that he conducted all his photo arrays the
same. Because the jury found Hazelhurst bolstered the identification, his denial at the criminal
trial meets the Haley standard for deliberate deception. A jury could infer Hazelhurst knew he
bolstered, knew the bolstering was exculpatory and important to the case, and deceived the
court—that it was not a memory lapse. Thus, a Pyle-style claim was supported by the evidence.
b. Fabrication
Officers may not fabricate evidence to obtain a conviction. Limone v. Condon, 372 F.3d
39, 44-45 (1st Cir. 2004). 2 The standard is nearly identical to the Pyle-style suppression
standard: (1) fabrication of inculpatory evidence that is (2) material / causal to the conviction and
(3) deliberate deception.3

The plaintiff argued at trial that Hazelhurst’s testimony that he searched Horgan’s
apartment on August 16, 2000 was fabricated to diminish the exculpatory value of the shorts.
Plaintiff introduced evidence that the shorts were not left after the attack, including testimony
from the male guests that the shorts were not theirs, that no officers searched the room for shorts
before Hazelhurst’s alleged search, and that the room was in the same state it was during the
attack when Horgan returned to collect clothes. Furthermore, the plaintiff introduced evidence
that the shorts were not there before the attack, including Horgan’s testimony that she did not
have male overnight guests and that her male family members did not recognize the shorts.
Contrary to defendants’ argument that no new evidence was introduced after summary judgment,
the inconsistencies between Hazelhurst’s criminal and civil trial testimony were not available to

the Court at summary judgment. Jones, 780 F.3d at 488 (“the record fully develops between any
proffered summary judgment motion and trial”).4

2 Contrary to the defendants, both the suppression and fabrication claims, as violations of the Due
Process guarantee to a fair trial, are in the “four corners of the complaint.” Cf. Haley, 657 F.3d at 49
(rejecting defendant’s attempt to limit plaintiff to a Brady-style Due Process claim when a claim based on
deliberate deception was plainly viable); accord Drumgold, 707 F.3d at 43-44.
3 Although unlikely, it is conceivable that an officer could unintentionally fabricate inculpatory
evidence. So long as it is intentional, fabrication necessarily meets the deliberate deception standard.
4 Unlike the suppression issue, the fabrication theory was not briefed by defendants at the
summary judgment stage. This Court ruled that, under a suppression theory, a lack of contemporary
documentation was not enough raise a genuine issue of material fact as to the honesty of Hazelhurst’s
testimony about the August 16, 2000, search. However, the defendants did not adequately dispute the
issue framed as one of fabrication, so the Court allowed it to proceed to trial.
At the criminal trial Hazelhurst testified that when he was in the bedroom on August 16,
2000, he was looking to see if anything was out of place, “especially a pair of men’s shorts or
pants” and that he “did not see those gym shorts.” (emphasis added). At the civil trial, he
testified he did a “cursory” search, that he was just “looking around,” and that he relied on an

earlier Bureau of Criminal Identification (“BCI”) search to identify anything noteworthy. But the
BCI investigator who processed the scene testified that she did not process that sort of evidence;
she took fingerprints and photographs. The jury could have inferred, given his experience, that
Hazelhurst knew BCI did not collect shorts or pants. In addition, Hazelhurst did not document
the search contemporaneously and Doherty testified that Hazelhurst was “concerned” when the
DNA test came back negative. The jury was reasonable in finding that Hazelhurst fabricated his
testimony about searching for the shorts. As it diminished the value of exculpatory evidence, the
testimony was inculpatory.
The jury was also reasonable in finding that the fabricated testimony caused Cosenza’s
incarceration. Had Hazelhurst not testified that he looked for shorts or pants on August 16, 2000,

the criminal jury would have considered shorts at the scene of the crime, with a DNA test that
did not match Cosenza, testimony from Horgan that her family members did not recognize the
shorts, and testimony from her nephew that no one entered her bedroom while she was away.
The Commonwealth still could have argued that the shorts belonged to one of the guests, but
Hazelhurst’s testimony was important enough that the Commonwealth referred to it to discredit
the shorts’ importance in their closing arguments at the criminal trial. (Docket No. 181, at 8).
Indeed, at this trial Hazelhurst testified that, absent his search, the shorts were “about as close to
an exoneration as you can get.” Finally, the lack of documentation of a search until the DNA test
came back negative, along with Doherty’s testimony that Hazelhurst was “concerned” by the
negative DNA test is enough—along with the evidence of fabrication—for the jury to find that
Hazelhurst intentionally fabricated the search to diminish the exculpatory value of the shorts.
c. Qualified Immunity
The defendants argue qualified immunity bars liability for the suppression and fabrication

claims. The analysis above relates to the first prong of the qualified immunity analysis, whether
there is a constitutional violation. Penate v. Hanchett, 944 F.3d 358, 366 (1st Cir. 2019). The
second prong concerns whether the law was clearly established at the time of the violation and
whether a reasonable defendant would know his conduct violated the plaintiff’s rights. Id.
It has been clear since at least the 1940s that fabricating or deliberately concealing
material evidence is unconstitutional. A reasonable officer in Hazelhurst’s position would know
that suppressing evidence that he improperly bolstered Horgan’s identification and fabricating
testimony to diminish the value of exculpatory evidence are constitutional violations. Haley, 657
F.3d at 50-51. Even if the jury only found a Drumgold-style suppression claim, such a right was
firmly established by 1995. Drumgold, 707 F.3d at 38; accord Echavarria v. Roach, 565 F.

Supp. 3d 51, 87 (D. Mass. 2021). Multiple circuits have held the duty was established in the
early 1990s, Moldowan v. City of Warren, 578 F.3d 351, 381-82 (6th Cir. 2009) (collecting
cases), or at least by the mid-1990s; McMillian v. Johnson, 88 F.3d 1554, 1567-68 (11th
Cir.1996). A reasonable officer would know that not turning over exculpatory, material evidence
would be a constitutional violation. Indeed, Hazelhurst testified that bolstering would have been
improper; he knew that not turning over that information to a prosecutor would also be improper.
d. Conspiracy
Parties cannot raise arguments in their 50(b) motion they did not raise in their 50(a)
motions. Falto De Román v. Mun. Gov't of Mayagüez, 46 F.4th 51, 55 (1st Cir. 2022). The
arguments must be “distinctly articulated” in the 50(a) motion, not merely relating to the same
issue. Santos-Arrieta v. Hosp. Del Maestro, 14 F.4th 1, 8 (1st Cir. 2021) (citing RFF Family
P’ship, LP v. Ross, 814 F.3d 520, 537 (1st Cir. 2016)). The defendants’ only argument as to the
conspiracy claim in their 50(a) motions was to deny the existence of § 1983 conspiracies. They

are confined to that argument now. Their arguments at summary judgment, not included in their
50(a) motion, are waived. Parker v. Gerrish, 547 F.3d 1, 12 (1st Cir. 2008). Because § 1983
conspiracies exist, this argument fails as a matter of law.
e. Perjury
Defendants argue that in maintaining that he never admitted his guilty Cosenza perjured
himself because they impeached Cosenza with notes from a parole board hearing that indicated
he admitted his guilt. Cosenza was impeached; that is not perjury. Cosenza maintained
throughout this trial that he never admitted guilt to anyone and that he does not know why the
parole board wrote that he admitted guilt. The jury found him credible, and this court may not
second-guess them. This also bars defendants’ argument that this is grounds for a new trial.

2. Motion for a New Trial
“A district court’s power to grant a motion for new trial is much broader than its power to
grant a [Rule 50 motion.].” Jennings v. Jones, 587 F.3d 430, 436 (1st Cir. 2009). But when the
issue is “at bottom, based on sufficiency of the evidence, the standards under Rule 50 and Rule
59 effectively ‘merge.’” Rodriguez-Valentin v. Doctors’ Ctr. Hosp. (Manati), Inc., 27 F.4th 14,
21 (1st Cir. 2022); accord Sanchez v. Foley, 972 F.3d 1, 16-17 (1st Cir. 2020) (conflicting
testimony and credibility disputes are typically not grounds for a new trial). As to defendants’
arguments that a new trial should be granted because of concerns about the sufficiency of the
evidence, “consideration of the same facts that lead us to [deny] under Rule 50 likewise lead
[this Court] to [deny] as to Rule 59.” Rodriguez-Valentin, 27 F.4th at 21. A court may also grant
a motion for a new trial “if the verdict is . . . tantamount to a miscarriage of justice.” Sanchez,
972 F.3d at 16 (citation omitted). Defendants argue that improperly admitted evidence and
improper closing arguments amount to a miscarriage of justice.

a. Improper Evidence
The defendants argue that this Court erred in admitting evidence relating to the shorts
because the shorts were “previously litigated.” The analysis above demonstrates that all the
evidence introduced relates to the fabrication analysis. Furthermore, insofar as defendants are
arguing that plaintiff’s Due Process rights are satisfied because he had a chance to accuse
Hazelhurst of fabrication at his criminal trial, that is plainly incorrect. The only evidence
regarding the shorts that merits further discussion is the testimony of the male guests which was
initially given at the ineffective assistance of counsel hearing and admitted at this trial.
At that hearing, several of the male guests present in Horgan’s apartment after her attack
testified that the shorts were not theirs. Plaintiff’s theory at that hearing was that his criminal trial

counsel should have called these guests as witnesses. The superior court disagreed, holding that
such a decision was a legitimate tactic given the possibility that one of them would admit the
shorts were theirs, destroying their exculpatory value. Defendants are correct that the guests’
testimony is irrelevant to materiality because their testimony was not part of the criminal trial.
Therefore, the jury could not consider it in determining whether the jury at that trial would have
convicted Cosenza absent Hazelhurst’s testimony about the search. But the guests’ testimony is
relevant to fabrication. The guests’ testimony tends to show that the shorts were in Horgan’s
apartment prior to the guests’ visit, and therefore in the apartment during Hazelhurst’s purported
search. That casts doubt on the credibility of Hazelhurst’s testimony. The guests’ testimony is
therefore relevant and admitting it was not a miscarriage of justice.
Furthermore, the guests’ testimony is relevant to innocence and innocence is relevant to
damages. An incarcerated innocent person suffers more than a guilty individual who was not

afforded a fair trial. Cf. Limone v. United States, 497 F. Supp. 2d 143, 227 (D. Mass. 2007)
(noting the “horror” of being incarcerated for a crime you did not commit). The extent to which
evidence of innocence can be admitted in these sorts of cases is an open question. There is non-
binding case law supporting plaintiff’s position. Waters v. Town of Ayer, 04-cv-10521 (D. Mass.
2009) (Docket No. 136, at 20) (DNA evidence was admissible in a similar case where the
wrongful conviction occurred prior to the advent of DNA evidence because although it was
irrelevant to the constitutional violation, it was relevant to the question of innocence and
therefore damages); see also Parish v. City of Elkhart, 702 F.3d 997, 1001-02 (7th Cir. 2012)
(similar). Defendants cite no case law supporting their position. This Court carefully instructed
the jury on the precise claims they would decide to determine liability. (Docket No. 272-1, at 18-

19). Jurors are assumed to follow those instructions. United States v. Garcia-Pastrana, 584 F.3d
351, 387-88 (1st Cir. 2009). Admitting this evidence was not a miscarriage of justice.
Similarly, the defendant argues that evidence regarding the suggestiveness of the photo
array was impermissibly admitted. Plaintiff was entitled to introduce evidence relating to the
array given the unconscious transference theory and to establish Hazelhurst’s general approach
to arrays. Also, to prove that the bolstering would have made a difference to the outcome of the
criminal trial he was entitled to discuss the array more generally. Finally, plaintiff is allowed to
argue for his innocence, and the array is relevant to that issue. Admitting this evidence was not a
miscarriage of justice.
b. Improper Closing Arguments
Defendants concede that they did not object to the closing arguments. Thus, the “plain
error” standard applies, and the moving party must show “(1) an error was committed; (2) the
error was “plain” (i.e. obvious and clear under current law); (3) the error was prejudicial (i.e.

affected substantial rights); and (4) review is needed to prevent a miscarriage of justice.” Smith v.
Kmart Corp., 177 F.3d 19, 26 (1st Cir. 1999).
Defendants argue (without pointing to any particular statement) that plaintiff’s counsel’s
closing argument focused too much on the suggestiveness of the photo array. As discussed
above, plaintiff’s counsel was entitled to discuss aspects of the photo array process other than the
bolstering. Defendants also argue that plaintiff’s counsel “shifted the burden of proof” by
arguing the jury should draw a negative inference from the defendants’ lack of an expert witness
to rebut the plaintiff’s unconscious transference expert witness. The defendants argue they did
not use an expert to preserve their objections to that witness on appeal. The defendants are
entitled to a tactical decision, not to insulation from its consequences. Defendants argue it was

improper for plaintiff’s counsel to argue Horgan was mistaken in her identification. That is
relevant both to the materiality prong of the suppression claim as well as innocence. Finally, the
jury instructions cured any minor prejudice because juries are presumed to follow instructions.
Garcia-Pastrana, 584 F.3d at 387. This Court, over plaintiff’s vigorous objections, granted
almost every request the defendants had for jury instructions. Applying those instructions, the
jury found defendants liable. This Court will not disturb that judgment.
Conclusion
For the reasons above, the defendants’ motion is denied.
SO ORDERED
/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10200767. Public record. Not legal advice.