George Clark v. Anthony Abdallah

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 25a0054p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

GEORGE EDWARD CLARK; KEVIN HARRINGTON,

│

Plaintiffs-Appellees, │

> No. 23-1730

│

v. │

│

ANTHONY ABDALLAH; KEVIN SMITH, │

Defendants-Appellants. │

┘

Appeal from the United States District Court for the Eastern District of Michigan at Detroit.

No. 2:21-cv-10001—Victoria A. Roberts, District Judge.

Argued: December 12, 2024

Decided and Filed: March 13, 2025

Before: BATCHELDER, MOORE, and BUSH, Circuit Judges.

_________________

COUNSEL

ARGUED: Kali M. L. Henderson, SEWARD HENDERSON, PLLC, Royal Oak, Michigan, for

Appellants. Wolfgang Mueller, WOLF MUELLER LAW FIRM, Novi, Michigan, for

Appellees. ON BRIEF: Kali M. L. Henderson, T. Joseph Seward, Michael A. Knoblock,

SEWARD HENDERSON, PLLC, Royal Oak, Michigan, for Appellants. Wolfgang Mueller,

WOLF MUELLER LAW FIRM, Novi, Michigan, for Appellees.

MOORE, J., delivered the opinion of the court in which BUSH, J., concurred, and

BATCHELDER, J., concurred in part. BATCHELDER, J. (pp. 32–39), delivered a separate

opinion concurring in part and dissenting in part.

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 2

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. This § 1983 case concerns alleged

constitutional violations in the investigation and prosecution of George Clark and Kevin

Harrington. Clark and Harrington spent nearly two decades in prison before the Wayne County

Prosecution Integrity Unit determined that they did not receive a fair trial because their murder

convictions were secured based on the testimony of a singular eyewitness, who claimed she had

been coerced to lie by detectives. Following dismissal of the charges and Clark’s and

Harrington’s releases from prison, the men sued those detectives for violating their constitutional

rights.

After discovery, the district court granted in part and denied in part the detectives’ motion

for summary judgment based on qualified immunity. Specifically, the district court denied

qualified immunity on the men’s claims that the detectives fabricated the statement of the

eyewitness, facilitated their prosecution without probable cause, and violated the Brady rule by

withholding evidence that detectives threatened and offered benefits to key witnesses. The

detectives filed an interlocutory appeal on the denial of qualified immunity. For the following

reasons, we AFFIRM the district court’s denial of qualified immunity and REMAND for trial on

the merits.

I. BACKGROUND

A. Factual Background

Around 11 a.m. on September 27, 2002, a boy distributing church fliers discovered the

body of man with gunshot wounds near a wooded area in Inkster, Michigan. Clark v. Abdallah,

No. 21-10001, 2023 WL 4852230, at *1 (E.D. Mich. July 28, 2023). The young man flagged

down a woman, Bearia Stewart, who identified the body as that of Michael Martin. Id.; see R.

138-2 (Def. Martin Incident Report) (Page ID #4062). Stewart called police, and Inkster Police

detectives arrived on scene to investigate. Clark, 2023 WL 4852230, at *1. Stewart spoke with

Detective Paul Martin and advised him that she saw George Clark at the house from 12 to 3 p.m.

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 3

the day before. Id. Stewart was then taken to the Inkster Police Department, where she was

given Miranda warnings and interviewed for five hours by Detective Anthony Abdallah and

Sergeant Kevin Smith (“Defendants”). Id.

At the outset of the interrogation, Stewart denied knowing anything about the murder “at

least 26 times.” Clark, 2023 WL 4852230, at *1. Detective Abdallah almost immediately

suspected she was not telling the whole truth and began pressuring her to describe what

happened. See id.; R. 138-3 (Revised Stewart Tr. at 9) (Page ID #4072). Abdallah began saying

things like, “The faster you talk to us, the faster I can you get [sic] back home to your kids . . .

The longer your kids are away from you, the faster – I mean, we – if you’re going to stay here,

we’re going to call Social Services and have your kids picked up because you’re locked up.” R.

138-3 (Revised Stewart Tr. at 42) (Page ID #4105); see Clark, 2023 WL 4852230, at *1. Smith

added, “We can’t release you knowing that you know stuff.” R. 138-3 (Revised Stewart Tr. at

42) (Page ID #4105). Stewart was crying and expressed that she was “scared.” R. 138-3

(Revised Stewart Tr. at 28) (Page ID #4091). Abdallah suggested she was “scared because [she

didn’t] want to be telling,” but Stewart responded that she “kn[e]w nothing.” Id.

“Faced with the threat of jail and the loss of her children, Stewart’s story started to

evolve.” Clark, 2023 WL 4852230, at *1. As the police officers suggested versions of what

might have occurred the night before, Stewart offered up a confusing array of stories. For

example, Stewart stated that Clark had been to visit Martin and the two had been fighting, but

she said this occurred from 11 to 3 in the evening. R. 138-3 (Revised Stewart Tr. at 8, 10–11)

(Page ID #4071, 4073–74). Abdallah later suggested that Stewart “got up in the middle of the

night and . . . saw something,” which Stewart first denied, then admitted. Id. at 30–31 (Page ID

#4093–94). Later, Stewart told Defendants that she had seen Clark’s car at Martin’s house

around 11:30 p.m. Id. at 43 (Page ID #4106). Then she heard a gunshot and saw Clark get back

to his car but did not see the shooting. Id. at 45 (Page ID #4108). At this point, Abdallah told

Stewart that she was “that close to telling the truth” but “just won’t cross over that line.” Id. at

48 (Page ID #4111). Then, Defendants took an unrecorded, 40-minute break. Clark, 2023 WL

4852230, at *1.

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 4

Upon return from the break, the officers re-Mirandized Stewart, who was now prepared

to offer a consistent narrative. Clark, 2023 WL 4852230, at *1; see R. 138-4 (Original Stewart

Tr. at 36–37) (Page ID #4152–53). She told Defendants that around 11:00 to 11:30 p.m., she got

up to smoke a cigarette, saw a grey car pull up outside, and noticed Clark knock on Martin’s

door. R. 138-4 (Original Stewart Tr. at 38) (Page ID #4154). She heard Martin and Clark argue

and then saw Clark hit Martin in the chest. Id. Clark then walked back to his car before

returning with his hand behind his back, this time saying he would kill Martin if he did not give

Clark his money or his dope. Id. at 39 (Page ID #4155). Now, she said, Harrington stepped out

of the car and the two men started beating Martin and dragged him to the bushes. Id. After that,

Stewart heard gunshots. Id. at 40 (Page ID #4156). Stewart said she ran inside but soon heard a

loud thumping on the door and voices demanding she open it. Id. It was Clark and Harrington

threatening to blow up her house and her kids if she called the police. Id. After the interview,

Stewart was allowed to return home.

Three days later, on September 30, 2002, Tyrhonda Moore went to talk with Inkster

Police about the murder. Clark, 2023 WL 4852230, at *2. Moore told Abdallah that she was

with Clark at the time he was allegedly murdering Martin. Id. She gave a statement saying that

they had been at Martin’s house but left around 10:30 p.m. and went to White Castle and a drive-

in movie, returning to Martin’s house around 3:30 or 4 a.m. R. 138-7 (Moore Statement at 1)

(Page ID #4164). The next day, Clark told her that Martin had been killed. Id. In a recent

deposition, Moore stated that during the interview, Abdallah immediately accused her of lying

and began threatening her: “like I was in love with Mr. Clark, that’s why I came down there

lying and that I was gonna do time and I’m only 18 years old and I need to think about myself

and—yeah. They were like all in my face, yelling and cussing.” R. 138-17 (Moore Dep. Tr. at

44) (Page ID #4232); see Clark, 2023 WL 4852230, at *2. As she understood it, Abdallah

wanted her to change her statement. Clark, 2023 WL 4852230, at *2. She said that the

detectives “locked [her] up [in a holding cell] for . . . two, maybe three days . . . act[ing] like they

were charging [her] with obstruction of justice.” R. 138-17 (Moore Dep. Tr. at 45) (Page ID

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 5

#4233); see Clark, 2023 WL 4852230, at *2. Moore has maintained that the statement she gave

to police at that time was accurate. R. 138-17 (Moore Dep. Tr. at 27–42) (Page ID #4215–30).1

Clark and Harrington were arrested on murder charges. Clark, 2023 WL 4852230, at *2.

Following their arrests, each man received a preliminary-examination hearing before a state

judge to determine if there was probable cause for their continued detention. Id. Stewart’s

testimony was the sole, substantive evidence presented at the hearings. Id. (“No other evidence

linked them to the crime.”). Stewart testified consistent with the ultimate statement she gave to

police, and the state judges found probable cause. Id.

A day before Clark and Harrington’s joint trial was scheduled to begin, Tammy

Wiseman, a friend of Stewart’s, was arrested for shoplifting in Taylor, Michigan. Clark, 2023

WL 4852230, at *3. Finding a subpoena to testify at Plaintiffs’ trial in her purse, authorities

contacted Abdallah. Id. Wiseman had been called as a defense witness in the case, and she

planned to testify at trial that she was with Stewart on the night of Martin’s murder, thereby

impeaching Stewart’s testimony that she witnessed the murder. Id. When she told this to

Abdallah, he pressured her to change her story, telling her “‘over and over and over’ that she was

lying and threatened to take her children away and lock her up unless she told him what he

wanted to hear: that Plaintiffs threatened her into saying that she was with Bearia Stewart the

night of the murder when she really was not.” Id. (quoting R. 138-20 (Wiseman Dep. Tr. at 83)

(Page ID #4376)). In a recent deposition, Wiseman affirmed that Abdallah was “giving [her]

direction of what to say” and “basically telling [her] where [he] wanted [her] to go” with her

story. R. 138-20 (Wiseman Dep. Tr. at 84) (Page ID #4377). Ultimately, needing to get out of

jail and fearing that Abdallah would take away her children, id. at 84–86 (Page ID #4377–79),

she told law enforcement that Plaintiffs’ attorneys pressured her to lie on the stand to help their

clients, see R. 138-19 (Wiseman Statement) (Page ID #4292); R. 138-20 (Wiseman Dep. Tr. at

56–57) (Page ID #4349–50). In exchange for her support, Abdallah helped her get out of jail

1Moore never testified at Clark’s or Harrington’s trials.

Although Clark’s counsel filed a notice of alibi as

to Moore, he did not call her. See R. 138-8 (Notice of Alibi) (Page ID #4167); R. 138-9 (Clark Affidavit ¶¶ 4–8)

(Page ID #4169).

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 6

without paying the $500 bond originally set. R. 138-20 (Wiseman Dep. Tr. at 84–85) (Page ID

#4377–78).

At Clark and Harrington’s joint trial, “Stewart took the stand but refused to answer

questions.” Clark, 2023 WL 4852230, at *2. The judge deemed her unavailable and allowed the

prosecution to admit her prior preliminary-examination testimony as substantive evidence. Id.;

see R. 153-10 (Stewart First Trial Test. at 118 (Page ID #5335)). Wiseman was also called to

testify. Wiseman testified that she was not with Stewart on the night of the murder, but that

Clark and Plaintiffs’ counsel had tried to convince her to lie and say she was. D. 37 (App’x at

280–88) (Wiseman First Trial Test. at 122–30); see Clark, 2023 WL 4852230, at *3. She further

testified that, once she gave her statement to law enforcement, she received threats to deter her

from appearing in court. Clark, 2023 WL 4852230, at *3. Both men were convicted, although

Harrington’s conviction was thrown out due to attorney misconduct. Id. at *2.

Harrington would be retried three times, with the next two trials resulting in hung juries.

Id. At the final trial, Stewart continued to recant her prior testimony, and the court once again

admitted her preliminary-examination testimony as substantive evidence against Harrington. R.

153-11 (Fourth Stewart Trial Test. at 127–28) (Page ID #5543–44). Stewart also told the jury

that she had been “forced by the police” to inculpate Clark and Harrington because “[a]t the time

I was scared of the police because they threatened to take my kids and put me in jail.” R. 153-11

(Fourth Stewart Trial Test. Day 1 at 153–54) (Page ID #5570–71); see Clark, 2023 WL 4852230,

at *2. Stewart also admitted that she had been addicted to cocaine at the time of the hours-long

police interview. R. 153-11 (Fourth Stewart Trial Test. Day 2 at 38) (Page ID #5669). At this

trial, Wiseman recanted her earlier trial testimony and testified that she “was with Stewart on the

night of the murder.” Clark, 2023 WL 4852230, at *3. She also testified on cross-examination

that she lied to Abdallah because she was desperate to get out of jail and back to her three

children, and that she had a heroin and crack-cocaine addiction at the time. Id. Further, she

testified that in exchange for her false statements, Abdallah arranged her release from jail

without paying bail. Id. Nonetheless, Wiseman’s earlier statement and trial testimony were

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 7

admitted into evidence. D. 37 (App’x at 493) (Wiseman Fourth Trial Test. at 78). Harrington

finally was convicted.2

After many years of unsuccessful appeals and habeas applications, Clark finally brought

a second or successive habeas application with potential merit. The application was based on

newly discovered evidence and relied on an affidavit from a new witness, Kaneka Jackson, who

said she saw a different man place a gun behind Martin’s head and walk him into the woods

before hearing three gunshots. See In re Clark, No. 15-2156, 2016 WL 11270015, at *3 (6th Cir.

Mar. 28, 2016). Jackson claimed that she told her father, Inkster Police Lieutenant Gregory Hill,

what she had witnessed, but he told her to stay quiet so as not to endanger herself. Id. We

granted Clark’s motion to file a second or successive petition as to the potential Brady violation,

id., and later ordered an evidentiary hearing, Clark v. Warden, 934 F.3d 483, 494 (6th Cir. 2019).

Meanwhile, the Wayne County Prosecutor’s Office Conviction Integrity Unit (“CIU”)

conducted a six-month investigation into the case. See R. 138-22 (Press Release) (Page ID

#4438). On April 23, 2020, the CIU announced that its investigation revealed “new witnesses

and evidence” and “established that Mr. Harrington and Mr. Clark did not receive a fair trial as a

result of the conduct of the original lead detective,” including a “disturbing pattern of behavior

. . . that involved threatening and coercing a number of witnesses.” Id. The CIU noted that no

physical evidence linked Clark or Harrington to the crime scene, and the “only inculpatory

witness repeatedly said they saw nothing and that they were coerced.” Id. (Page ID #4437–38).

The charges were dismissed, and the CIU announced that the case would not be retried; the

office did not reach any conclusion regarding their actual innocence. Id. Clark and Harrington

subsequently received compensation under the Michigan Wrongful Imprisonment Compensation

Act. See Clark v. Abdallah, No. 21-10001, 2023 WL 4851410, at *1 (E.D. Mich. July 28, 2023).

2Defendants’ statement of facts puts a different spin on these events, persisting in the belief that Plaintiffs

are guilty of murder, downplaying the severity of Defendants’ alleged misconduct, and arguing that the real reason

Stewart and Wiseman recanted their testimony is that they were terrified of Plaintiffs. Although Defendants may

present these theories—and the facts on which they rest—to the jury, we cannot entertain them at the summary-

judgment stage. On Defendants’ motion for summary judgment, we portray the facts in the light most favorable to

the Plaintiffs and consider whether Defendants are nonetheless entitled to judgment as a matter of law. See Fed. R.

Civ. P. 56(a).

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 8

B. Procedural Background

Clark and Harrington filed the present suit against Detective Abdallah, Sergeant Smith,

Lieutenant Hill, and the City of Inkster, on January 4, 2021. The operative, amended complaint

alleged: (1) Abdallah and Smith deliberately and knowingly fabricated evidence to secure their

convictions, including threatening and coercing Stewart, Moore, and Wiseman to make false,

inculpatory statements, contrary to the Fourth and Fourteenth Amendments (Count I); (2)

Abdallah and Smith maliciously prosecuted them by the same means in violation of the Fourth

Amendment (Count II); (3) Abdallah, Smith, and Hill violated their rights to due process under

the Fourteenth Amendment and a fair trial under the Sixth Amendment by not disclosing

material exculpatory evidence relating to Moore, Wiseman, and Jackson under Brady (Count

III); (4) the City of Inkster demonstrated deliberate indifference to their constitutional rights and

was subject to municipal liability under Monell (Count IV); and (5) Abdallah, Smith, and Hill

maliciously prosecuted them under Michigan common law (Count V). R. 73 (Am. Compl.

¶¶ 97–120) (Page ID #2250–56).

After discovery, Abdallah, Smith, and the City of Inkster moved for summary judgment.

The district court granted summary judgment to the City of Inkster based on Clark’s and

Harrington’s voluntary release of liability against the city upon acceptance of monetary awards

under the Michigan Wrongful Imprisonment Compensation Act. Clark, 2023 WL 4851410, at

*1. That decision is not challenged here. The district court then granted in part and denied in

part Abdallah’s and Smith’s motions for summary judgment based on qualified immunity.

Clark, 2023 WL 4852230, at *18. The district court granted qualified immunity to Abdallah

with respect to claims that he fabricated Moore’s statement and withheld the Jackson evidence

under Brady. Id. But the district court denied qualified immunity to Abdallah with respect to

claims that he fabricated Stewart’s and Wiseman’s testimonies, engaged in federal and state

malicious prosecution, and violated Brady with respect to evidence pertaining to Moore and

Wiseman. Id. The district court granted qualified immunity to Smith with respect to fabricating

the Wiseman and Moore testimony, as well as to all the Brady claims. Id. But the court denied

qualified immunity to Smith with respect to fabricating Stewart’s eyewitness testimony and to

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 9

the federal and state malicious-prosecution claims. Id. Smith and Abdallah now seek

interlocutory review of the denial of qualified immunity.

II. STANDARD OF REVIEW

To prevail on a claim under 42 U.S.C. § 1983, Plaintiffs “must establish that a person

acting under color of state law deprived [them] of a right secured by the Constitution or laws of

the United States.” Adams v. Blount County, 946 F.3d 940, 947 (6th Cir. 2020) (quoting Smoak

v. Hall, 460 F.3d 768, 777 (6th Cir. 2006)). Responding to a § 1983 claim, an officer may assert

the defense of qualified immunity, which shields officers from damages suits unless their

conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When an officer

asserts this defense at summary judgment, the burden shifts to the plaintiffs to demonstrate that

(1) the facts, taken in the light most favorable to the plaintiffs, show that the officer violated their

constitutional right, and (2) the right was so clearly established at the time of the officer’s

conduct that the officer would have understood that he was violating the plaintiffs’ rights.

Tanner v. Walters, 98 F.4th 726, 731 (6th Cir. 2024); see Ashcroft v. al-Kidd, 563 U.S. 731, 735

(2011). Summary judgment is properly denied when plaintiffs have offered evidence sufficient

to raise a genuine dispute of material fact as to whether the officer violated their clearly

established rights. Tanner, 98 F.4th at 731; see Fed. R. Civ. P. 56(a). We review the district

court’s denial of summary judgment on qualified-immunity grounds de novo. Tanner, 98 F.4th

at 731.

III. JURISDICTION

We begin by determining the scope of our jurisdiction over this appeal from the denial of

summary judgment on qualified-immunity grounds. Ordinarily, we lack jurisdiction to review a

district court’s order denying summary judgment because denials of summary judgment are not

“final decisions” within the meaning of 28 U.S.C. § 1291. See Johnson v. Jones, 515 U.S. 304,

309 (1995). “[I]nterlocutory appeals—appeals before the end of district court proceedings—are

the exception, not the rule.” Id. A district court’s order denying summary judgment falls within

a limited exception for collateral orders when the officer asserts a defense of qualified immunity

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 10

and the “the appealable issue is a purely legal one.” Id. at 313 (quoting Mitchell v. Forsyth, 472

U.S. 511, 528 n.9 (1985)). In such cases, the appealed order is properly considered collateral

because it conclusively determines a legal question, resolves an important issue separate from the

merits, and would be unreviewable on appeal from final judgment, for the officer would have

lost his immunity from suit. See id. at 310–12.

In an interlocutory appeal from the denial of summary judgment on qualified-immunity

grounds, we have jurisdiction to review whether the plaintiffs’ evidence—if proved at trial—

would demonstrate a violation of a constitutional right, and whether that right was clearly

established at the time it was allegedly violated. See Plumhoff v. Rickard, 572 U.S. 765, 774,

778 (2014). However, we lack jurisdiction to entertain challenges to the district court’s

determination that the plaintiffs’ evidence is sufficient to proceed past summary judgment to

trial. Johnson, 515 U.S. at 313. An officer “may not appeal a district court’s summary judgment

order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’

issue of fact for trial.” Id. at 319–20. Evidence-sufficiency claims are not final because they do

not present any legal question other than the one to be answered at trial. Id. at 314–15.

In ruling on interlocutory appeals from the denial of qualified immunity, we generally

adopt the facts as set forth by the district court and defer to the district court’s determinations of

fact and the inferences that the district court drew from those facts. Gillispie v. Miami Township,

18 F.4th 909, 916 (6th Cir. 2021). “[I]n exceptional circumstances,” we may review “the district

court’s factual determination if that determination is ‘blatantly contradicted by the record, so that

no reasonable jury could believe it.’” Adams, 946 F.3d at 948 (quoting Scott v. Harris, 550 U.S.

372, 380 (2007)).

When an officer raises both factual and legal challenges, we determine the scope of our

jurisdiction by “separat[ing] an appellant’s reviewable challenges from its unreviewable” ones.

Id. (quoting Diluzio v. Village of Yorkville, 796 F.3d 604, 610 (6th Cir. 2015)); see also Johnson,

515 U.S. at 313 (finding no jurisdiction over appeals from the “portion of a district court’s

summary judgment order that, though entered in a ‘qualified immunity’ case, determines only a

question of ‘evidence sufficiency’” (emphasis added)). We will overlook an officer’s attempt to

dispute the facts if he is nonetheless willing to concede the most favorable view of the facts to

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 11

the plaintiffs for purposes of another aspect of the appeal. United Pet Supply, Inc. v. City of

Chattanooga, 768 F.3d 464, 472 (6th Cir. 2014); see, e.g., Ashford v. Univ. of Michigan, 89 F.4th

960, 970 (6th Cir. 2024) (setting aside fact-based challenge and resolving purely legal challenge

to whether defendants violated clearly established law). We will also put aside factual disputes

that are minor or ultimately immaterial. Adams, 946 F.3d at 951. But “[a]dhering to Johnson,

we have consistently declined to exercise jurisdiction over appeals where the officer’s dispute of

facts is ‘crucial to’ the appeal.” Heeter v. Bowers, 99 F.4th 900, 909 (6th Cir. 2024) (quoting

Adams, 946 F.3d at 951) (collecting cases). When we cannot resolve the legal question without

grappling with the parties’ factual dispute, we dismiss for lack of jurisdiction. See, e.g.,

Gillispie, 18 F.4th at 919; Adams, 946 F.3d at 951.

Defendants have not fully conceded the facts in this appeal. Throughout their briefing,

Defendants resist Plaintiffs’ factual allegations and the inferences that the district court drew

from them. For example, Defendants continue to insist that Stewart recanted her testimony at

trial because she was threatened, and not because her preliminary-examination testimony was

fabricated. See D. 32 (Defs.’ Br. at 43). They dispute whether Plaintiffs’ evidence shows that

Defendants knew Stewart’s testimony was false. See id. at 38. And they persist in arguing that

Wiseman made up her own story. See id. at 40. Although we lack jurisdiction over such fact-

based disputes, many of the issues in this appeal can be decided without entertaining them. We

proceed carefully and avoid these issues as they arise.

However, one issue must be resolved entirely on jurisdictional grounds. Defendants

argue that Stewart’s trial testimony is inadmissible hearsay that cannot be used to prove that she

was coerced by Defendants to change her story. D. 32 (Defs.’ Br. at 28–31). The district court

held that the testimony was admissible under Federal Rule of Evidence 804(b)(1) because

Stewart is now dead (and therefore unavailable), the testimony was taken at trial, and the

predecessor in interest to the police officers (the prosecutor) had an opportunity and similar

motive to develop her testimony during direct and redirect examination. Clark, 2023 WL

4852230, at *17–18.

We have no jurisdiction to decide whether the district court correctly determined that

Stewart’s trial testimony is admissible. When an officer’s appeal rests crucially on a dispute

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 12

over the admissibility of evidence, we lack jurisdiction to review the appeal. Ellis v. Washington

County, 198 F.3d 225, 229 (6th Cir. 1999). This is true even if the only evidence precluding

summary judgment amounts to the “rankest type of inadmissible hearsay.” Id.; see Harmon v.

Hamilton County, 675 F. App’x 532, 540 n.5 (6th Cir. 2017) (refusing to consider defendant’s

objection to district court’s reliance on certain evidence to find a genuine dispute of material

fact); Bertl v. City of Westland, No. 07-2547, 2009 WL 247907, at *4 (6th Cir. Feb. 2, 2009)

(declining to “revisit or review evidentiary rulings” including a district court’s resolution of a

hearsay objection). Defendants’ effort to frame this as a challenge to the district court’s

application of the summary-judgment standard is unpersuasive. D. 32 (Defs.’ Br. at 28).

Defendants are challenging the district court’s determination whether the trial testimony is

inadmissible hearsay. Resolution of this jurisdictional challenge does not deprive us of

jurisdiction over the rest of the appeal, however, because Defendants appear willing to concede

the admissibility of the evidence for purposes of their other arguments. See Bertl, 2009 WL

247907, at *4. We assume the same.

IV. FABRICATION OF EVIDENCE

Plaintiffs’ first claim is that Defendants violated their right to Due Process under the

Fourteenth Amendment by causing the introduction of fabricated evidence—the testimony of

Stewart and Wiseman—at their jury trials. The district court held that Plaintiffs presented

sufficient evidence to create a genuine dispute of material fact as to whether the testimonies were

knowingly fabricated. Defendants raise several legal challenges to Plaintiffs’ fabrication-of-

evidence claims. We address each in turn.

A. Fabrication of Evidence Under the Fourth and Fourteenth Amendments

As a threshold matter, Defendants argue that the district court erred by considering

Plaintiffs’ fabrication-of-evidence claim as a violation of the Due Process Clause of the

Fourteenth Amendment, rather than as a violation of the right to be free from unlawful seizures

under the Fourth Amendment. D. 32 (Defs.’ Br. at 31). To the extent that this is an argument

about the legal viability of a stand-alone fabrication-of-evidence claim based on the Fourteenth

Amendment, the argument is a nonstarter because we have recognized fabrication-of-evidence

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 13

claims under the Fourth and Fourteenth Amendments. See Hoskins v. York, No. 23-5325, 2024

WL 2894648, at *2 (6th Cir. June 10, 2024).

The Fourth Amendment’s protection against unreasonable seizures prohibits the

government from arresting and detaining individuals without probable cause that they committed

an offense. See Manuel v. City of Joliet, 580 U.S. 357, 367 (2017). The Fourth Amendment is

violated when probable cause rests on fabricated evidence presented to a grand jury or to a judge

determining probable cause. King v. Harwood, 852 F.3d 568, 588–90 (6th Cir. 2017); see

Manuel, 580 U.S. at 367 (observing that probable cause is lacking “when, for example, a judge’s

probable-cause determination is predicated solely on a police officer’s false statements”). When

individuals present claims that they were unlawfully detained based on fabricated evidence, we

tend to consider them under the rubric of malicious prosecution. See Tanner, 98 F.4th at 733–34

(“Claims stemming from a plaintiff’s seizure and continued detention based on purportedly false

or fabricated evidence presented by law enforcement fall under the broad umbrella of malicious

prosecution and are rooted in the protections afforded by the Fourth Amendment.”). Because

Fourth Amendment claims turn crucially on the lack of probable cause, a law-enforcement

defendant may defeat liability by showing that, notwithstanding the fabricated evidence,

probable cause supported detention. Id. at 735–36.

The Fourteenth Amendment, by contrast, prohibits the government from depriving a

person of liberty without due process of law. See U.S. Const. amend XIV, § 1. The due-process

right is infringed when the prosecution presents “evidence [that] is knowingly fabricated and a

reasonable likelihood exists that the false evidence would have affected the decision of the jury.”

Jackson v. City of Cleveland, 925 F.3d 793, 815 (6th Cir. 2019) (quoting Gregory v. City of

Louisville, 444 F.3d 725, 737 (6th Cir. 2006)). Because the core of the right at issue here is not

the deprivation of liberty but the right to a fair trial, “a stand-alone fabrication-of-evidence claim

can survive without regard to probable cause.” Tanner, 98 F.4th at 733. In sum, Defendants’

argument that Plaintiffs cannot raise a stand-alone fabrication-of-evidence claim under the Due

Process Clause is foreclosed by our precedent.

To the extent that Defendants’ argument turns on what is pleaded in the operative

complaint, the argument also fails. See D. 32 (Defs.’ Br. at 33) (contending that “Plaintiffs’

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 14

fabrication claim relies on the right not to be seized and deprived of liberty as the result of

manufactured probable cause”). The operative complaint put Defendants on notice that Plaintiffs

were asserting violations of their rights under the Fourth and Fourteenth Amendments. Plaintiffs

alleged that Defendants violated their right to be free from unlawful seizures by “deliberately and

knowingly fabricat[ing] evidence to manufacture probable cause for an arrest warrant.” R. 73

(Second Amended Compl. ¶ 100) (Page ID #2250). But Plaintiffs also asserted that Defendants

violated their “right to be free from . . . prosecution based on fabrication of evidence” and

alleged that the Defendants used the fabricated evidence “to later secure Plaintiffs’ convictions.”

Id. ¶¶ 99–100 (Page ID #2250–51). And in support of their claims, Plaintiffs cited Jackson, a

case concerning a due-process violation premised on fabrication of evidence. Id. ¶ 98 (Page ID

#2250) (citing Jackson, 925 F.3d at 816). It was therefore not error for the district court to read

the operative complaint to raise a due-process claim.

B. Constitutional Violation

Moving on, Defendants argue that Plaintiffs have not demonstrated a constitutional

violation on the fabrication-of-evidence claim. The elements of a fabrication-of-evidence claim

under the Due Process Clause are (1) the evidence was knowingly fabricated, and (2) the

evidence likely affected the decision of the jury. Jackson, 925 F.3d at 815. Defendants dispute

whether a jury could infer that Stewart’s and Wiseman’s testimonies were knowingly fabricated.

The district court’s conclusion that genuine fact issues remained as to whether

Defendants fabricated Stewart’s inculpatory preliminary-examination testimony (which was

presented at their trials) rested on the following facts from the record: (1) Stewart repeatedly

denied knowing anything about the crime; (2) Stewart told inconsistent stories; (3) Defendants

were aware of Moore as an alibi witness for Clark; and (4) Defendants “pressured [Stewart] into

giving a statement by threatening to take away her children.” Clark, 2023 WL4852230, at *10.

“Taken together,” the district court reasoned, “a reasonable jury could find that Defendants

fabricated evidence (Stewart’s preliminary exam testimonies) against Plaintiffs by coercing her

to testify to something they knew or had reason to know was false.” Id. In reaching this

conclusion, the district judge “[did] not dispute that coercion alone, without more, cannot rise to

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 15

the level of fabrication.” Id. at *9. But, in the court’s view, the preceding facts showed “more

than just coercion.” Id.

As to Wiseman, the district court held that Plaintiffs raised a genuine dispute of fact as to

whether Abdallah coerced her to testify falsely at the first trial that “Plaintiffs and their counsel

pressured Wiseman to testify that she was with Bearia Stewart the night of the murder, even

though she was not.” Clark, 2023 WL 4852230, at *10. In support of this holding, the district

court pointed to the following facts: (1) Abdallah interviewed Wiseman while she was in jail; (2)

Abdallah insinuated that he would help Wiseman with her case if she testified against Plaintiffs

(and arranged for her release without bond); (3) Abdallah threatened to take away Wiseman’s

children; (4) Wiseman was suffering from drug withdrawal; and (5) Wiseman has stated that

“Abdallah told her ‘over and over and over’ that she was lying, and that he threatened to take her

children away and lock her up unless she told him what he wanted to hear.” Id. at *10. The

district court rejected Abdallah’s argument that because he “didn’t tell her what to say,” the

testimony could not have been fabricated. Id. at *11. The court pointed, in this regard, to

Wiseman’s statement that when she told the truth, Abdallah responded by saying, “‘over and

over’ that she was lying, threatened to take away her kids, and threatened to lock her up.” Id.

Defendants’ rebuttal rests on a piecemeal approach. Their argument is that because each

fact alone would not independently support a jury’s conclusion that Defendants fabricated

evidence, a jury could not conclude that these facts, taken together, support a conclusion that

Defendants knowingly fabricated evidence. But even if each fact alone would not support a

fabrication claim, the conclusion does not follow that the combination of facts could not support

an inference that officers knew the statement they procured was false. The sum, as we all know,

may be greater than each of its parts. For example, a doctor might be unable to diagnose the flu

solely because a child had a fever, runny nose, vomiting, or extreme fatigue. But when a child

comes into the doctor’s office with all four symptoms, she might fairly infer that the child has the

flu rather than the common cold. Analogously, a police officer might be unlikely to infer that a

witness is giving false testimony based solely on the inconsistency of the testimony with that of

another witness (the other witness, of course, could be lying), or based solely on the coercive

tactics used to extract the statement (some witnesses are recalcitrant, after all). But we expect

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 16

that police officers can piece together the information they develop throughout the investigation

to reach important conclusions, such as who committed the crime, and whether a witness is

telling the truth.

Of course, the argument might have more merit if each of the identified facts were

irrelevant or only marginally relevant to the conclusion that a witness’s testimony was false. But

the factors here cannot be so characterized. Even if coerced testimony “may turn out to be true,”

coercion is not “legally irrelevant; far from it—coercion (which in an extreme case could amount

to torture) may be an essential tool in ‘persuading’ a witness to fabricate testimony.” Fields v.

Wharrie, 740 F.3d 1107, 1112 (7th Cir. 2014); see Devereaux v. Abbey, 263 F.3d 1070, 1076

(9th Cir. 2001) (en banc) (allowing an inference of fabrication when the officers “used

investigative techniques that were so coercive and abusive that they knew or should have known

that those techniques would yield false information”). And although it is “[i]t is generally

accepted that a showing of inconsistent statements will not make the testimony incredible as a

matter of law[,] [s]uch contradictions [] reflect on the accomplice’s credibility, and it is for the

trier of fact to determine their weight.” United States v. Burch, 471 F.2d 1314, 1317 (6th Cir.

1973). Further, even if an alibi might be dubious or self-serving, alibi-witness testimony can

diminish the credibility of other witnesses. Cf. Stewart v. Wolfenbarger, 468 F.3d 338, 361 (6th

Cir. 2006) (concluding that, where the prosecution’s evidence was thin, failure to present alibi

witnesses “undeniabl[y]” prejudiced the defendant). Each of the facts identified by the district

court is highly relevant to the jury’s determination whether an officer knew that the statement

procured from a witness was false. See Winslow v. Smith, 696 F.3d 716, 734 (8th Cir. 2012)

(concluding that officers “may be held liable if they recklessly ignored evidence suggesting the

Plaintiffs’ innocence or systematically pressured witnesses to manufacture false testimony to fill

gaps in an investigation”). Accordingly, we see no legal reason why the combination of factors

presented here could not support a jury verdict in Plaintiffs’ favor.

Defendants similarly argue that the evidence does not support a claim of knowing

fabrication because the tactics used to interview Stewart and Wiseman were “constitutional.” D.

32 (Defs.’ Br. at 37). The argument seems to be that because the officers’ tactics were not so

coercive as to violate Stewart’s and Wiseman’s Fourteenth Amendment rights to be free from

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 17

giving a constitutionally involuntary statement, a jury could not infer that Defendants knew their

statements to be false. Id. at 37–38. In support of their argument, Defendants cite cases

supporting propositions such as “officers could lawfully tell Stewart she was lying” and

“[l]awfully, Defendants could also tell Stewart she would be locked up for not telling the truth

and that social services would be called to watch after her children.” Id. This argument fails for

the same reason as the first one. Although it may be true that application of each of these tactics

would not render the witness’s statement constitutionally involuntary, it does not follow that

when an officer uses these tactics together, he could not infer that the witness’s story was false or

at least highly unreliable. Indeed, Defendants have pointed us to no authority for their

proposition that when the witness’s “interview was constitutional, [] there was no fabrication.”

Id. at 37.

Defendants identify only one precedential case supporting summary judgment on a

somewhat similar combination of factors. In Price v. Montgomery County, we affirmed the

district court’s grant of summary judgment on a fabrication-of-evidence claim. 72 F.4th 711,

724 (6th Cir. 2023). In that case, the plaintiff presented evidence of officers

failing to record large segments of the interrogation, misleading [the witness]

about her DNA being a match and other people implicating her, telling [the

witness] information that she would need to sound plausible in her confession,

threatening her and her children, promising her that she would go free if she

cooperated, and telling her that she failed the polygraph test.

Id. at 723. Here, as in Price, there is evidence that the officers threatened Stewart and Wiseman

and threatened to take away their children, and with respect to Stewart that they ignored

inconsistent evidence and failed to record the entire interview (raising questions about what other

threats or promises were made during a 40-minute unrecorded break).

However, Price is distinguishable. First, as the district court recognized, when Stewart

gave her preliminary-examination testimony, Defendants were aware of an alibi witness for

Clark, which cast significant doubt on the veracity of Stewart’s story and lent some credence to

Wiseman’s. Notwithstanding the many inconsistencies in Stewart’s testimony and her repeated

denials that she knew anything of the murder, Defendants never tried to reinterview her or

consider whether her story was true or false. Second, there is evidence in the record that both

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 18

Stewart and Wiseman were interrogated while they were withdrawing from drugs, factors that

made them especially vulnerable to police suggestion and coercion, and reasonably afraid that

their children might be removed if they did not tell the story that officers wanted to hear. Third,

there is evidence that the officers were engaged in a pattern of coercive and manipulative

behavior, which supports the conclusion that Defendants were determined to convict Plaintiffs

regardless the truth of the statements they elicited.

Because we have identified no legal obstacle to the inference that Defendants knew that

Stewart’s and Wiseman’s statements were false, Defendants’ arguments boil down to a dispute

with the sufficiency of the evidence in this case. Stripping away the legal arguments, their

contention is that the evidence is too thin to support a jury verdict on the fabrication-of-evidence

claim. That kind of argument is plainly foreclosed by Johnson v. Jones.3 So, we have no

jurisdiction to entertain it further.

Defendants lastly make a terse argument that the fabrication-of-evidence claim regarding

Stewart fails because the prosecutor independently used the allegedly fabricated evidence to

convict Plaintiffs. D. 32 (Defs.’ Br. at 39–40). Defendants contend that the prosecutor’s actions

operated as a “superseding cause” because “the prosecutor had both the audio and video portions

of Stewart’s interview—and the prosecutor admitted that evidence against Plaintiffs, causing

their convictions.” Id. at 39. Effectively, because the officers did not withhold evidence about

the coercion they applied to Stewart, Defendants say they are absolved from responsibility for

fabricating her statement.

Binding, on-point caselaw forecloses that argument. In Jackson, we held that causation is

sufficiently established when an officer fabricates a statement by the witness, which is

subsequently introduced into evidence at trial. 925 F.3d at 816. Once the statement was created,

the officer was causally responsible “because the statement coerced [the witness] to testify in

conformance with it” under penalty of perjury. Id. at 817; accord Monson v. City of Detroit,

Nos. 22-2050/2122, 2024 WL 84093, at *7–8 (6th Cir. Jan. 8, 2024). Here, taking the facts in

3We also lack jurisdiction to consider Defendants’ argument that the evidentiary record better supports the

position that Wiseman’s false testimony was “of her own making” rather than of Abdallah’s. D. 32 (Defs.’ Br. at

40).

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 19

the light most favorable to Plaintiffs, Defendants elicited a false statement from Stewart before

the preliminary exams; Stewart testified in conformity with that statement; and even when

Stewart tried to recant her preliminary-examination testimony, it was used substantively to

obtain Plaintiffs’ convictions. Even if that first statement was not given under oath like the

statement in Jackson, had Stewart disowned her statement at the preliminary examination, she

may have been subject to penalties for giving false evidence to police in a murder investigation.

See Mich. Comp. Laws § 750.479c.

Defendants’ citation to McDonough v. Smith does not undermine our analysis. 588 U.S.

109 (2019). McDonough merely repeats the unremarkable proposition that a § 1983 plaintiff

must show that the defendant is causally responsible for the constitutional deprivation. Id. at

117. Accordingly, in the context of the fabrication-of-evidence claim asserted under the rubric

of malicious prosecution in McDonough, the plaintiff was “require[d] . . . to show that the

criminal proceedings against him—and consequent deprivations of his liberty—were caused by

[the defendant’s] malfeasance in fabricating evidence.” Id. (footnote omitted). Taking the facts

in the light most favorable to the Plaintiffs, Defendants caused Plaintiffs’ convictions and

corresponding detention by obtaining Stewart’s false statement, to which she was then required

to testify under penalty of law. Accordingly, because “[t]his scenario parallels Jackson,”

Monson, 2024 WL 84093, at *8, we reject Defendants’ causation argument.4

4Defendants also rely on out-of-circuit cases to support their argument, but none of them is persuasive here.

First, Defendants cite two Second Circuit decisions concluding that a police officer was not liable for the admission

of certain evidence at trial unless the prosecutor or judge was misled or unduly pressured by the police officer. See

Wray v. City of New York, 490 F.3d 189, 193 (2d Cir. 2007); Townes v. City of New York, 176 F.3d 138, 146–47 (2d

Cir. 1999). Those cases are distinguishable because neither considered the type of evidence at issue here or in

Jackson and Monson. Rather, Wray concerned “the erroneous admission at trial of testimony regarding [an] unduly

suggestive identification,” 490 F.3d at 193, while Townes concerned the introduction of improperly seized evidence,

176 F.3d at 146–47. In neither case had the police officer elicited a false statement to which the witness was

required to testify under penalty of law. Accordingly, the causal nexus presented here was not at issue in those

cases.

Second, Defendants cite Evans v. Chalmers, which held that an officer is not liable for malicious

prosecution unless he misled or pressured the prosecutor. 703 F.3d 636, 647–48 (4th Cir. 2012). This case is both

factually distinguishable—arising in the context of a different claim and in light of evidence that the officers resisted

the prosecutor’s inappropriate pursuit of the case—and in tension with our precedent on the same point. We have

not adopted such a high standard for causation in malicious-prosecution cases, holding instead that an officer may be

liable when “misstatements and falsehoods in his investigatory materials extended beyond the Plaintiffs’ initial

arrest and ultimately influenced the Plaintiffs’ continued detention.” Sykes v. Anderson, 625 F.3d 294, 316 (6th Cir.

2010). In sum, Defendants’ out-of-circuit authority does not alter our analysis.

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C. Clearly Established Law

Defendants also argue that Plaintiffs have not demonstrated that they violated clearly

established law. The Supreme Court has admonished us “not to define clearly established law at

a high level of generality.” Ashcroft, 563 U.S. at 742. Our focus must be on “whether the

violative nature of particular conduct is clearly established . . . in light of the specific context of

the case.” Guertin v. Michigan, 912 F.3d 907, 934 (6th Cir. 2019) (quoting Mullenix v. Luna,

577 U.S. 7, 12 (2015) (per curiam)).

As long ago as 1942, “the Supreme Court held that when a witness perjures himself

because of threats from police officers, the defendant suffers ‘a deprivation of rights guaranteed

by the Federal Constitution.’” Jackson, 925 F.3d at 825 (quoting Pyle v. Kansas, 317 U.S. 213,

216 (1942)). Because of this, Defendants were surely on notice in 2002 that threatening Stewart

and Wiseman to give false testimony to convict Plaintiffs was a violation of Plaintiffs’ clearly

established due-process rights. Id. Defendants insist that this defines the right “too generally.”

D. 32 (Defs.’ Br. at 40). They argue that “there was no caselaw putting the Officers on notice

that their interrogation techniques would cross the line from coercion to fabrication,” so they

could not have known that they were violating Defendants’ constitutional rights. Id. at 41.

Defendants’ argument is simply another attempt to relitigate the question whether a jury could

infer that they knew the statements were fabricated. We have already addressed that question.

The relevant question at this juncture is whether, when an officer knows that evidence is

fabricated, it is clearly established that introduction of that evidence at trial violates an

individual’s rights. That proposition of law was firmly established when this violation occurred.

Defendants finally argue that “the heart of a fabrication claim is that law enforcement fed

a witness information to establish probable cause.” D. 52 (Defs.’ Reply at 6). This argument is

also unpersuasive. Beginning with Mooney v. Holohan, the Supreme Court recognized that it

deprives a defendant of due process to solicit his conviction “through a deliberate deception of

court and jury by the presentation of testimony known to be perjured.” 294 U.S. 103, 112

(1935). Subsequently, in Miller v. Pate, the Supreme Court identified a violation of the Mooney

principle when the prosecutor knowingly allowed false testimony that a pair of shorts was

covered with blood when he knew it was covered in paint. 386 U.S. 1, 6–7 (1967).

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 21

This amounted to fabrication even though there was no suggestion that the prosecution planted

blood on the shorts. Id. at 6. If Plaintiffs can prove at trial that Defendants knew that the

statements they elicited from Stewart and Wiseman, which were later conveyed to the jury, were

false, it follows that Defendants violated clearly established law. Hence, we will affirm the

district court’s denial of summary judgment on the fabrication-of-evidence claims.

V. FEDERAL MALICIOUS PROSECUTION

Plaintiffs’ next claim is that Defendants violated their Fourth Amendment rights to be

free from unreasonable seizure by maliciously prosecuting them without probable cause. To

demonstrate malicious prosecution, a plaintiff must show that: “(1) the defendant made,

influenced, or participated in the decision to prosecute the plaintiff; (2) there was no probable

cause for the prosecution; (3) as a consequence of the legal proceedings, the plaintiff suffered a

deprivation of liberty apart from the initial arrest; and (4) the criminal proceeding was resolved

in the plaintiff’s favor.” Tanner, 98 F.4th at 734 (quoting France v. Lucas, 836 F.3d 612, 625

(6th Cir. 2016)).

Defendants challenge only the second element of the federal malicious-prosecution

claim—whether there was a lack of probable cause. D. 32 (Defs.’ Br. at 42–43). On that score,

the district court held that Plaintiffs raised sufficient evidence to create a genuine dispute of

material fact. Clark, 2023 WL 4852230, at *13. “Given that Stewart’s eyewitness testimony

was the only evidence used to establish probable cause and Plaintiffs allege the testimony to be

fabricated, fact issues exist to support that there was no probable cause to prosecute Plaintiffs.”

Id. at *12.

Echoing their earlier arguments, Defendants contend that “Stewart’s statement was taken

constitutionally . . . [t]hus, Defendants were entitled to rely upon it to establish probable cause.”

D. 32 (Defs.’ Br. at 42). This argument is unpersuasive. Probable cause exists when the

prosecution has “reasonably trustworthy information . . . sufficient to warrant a prudent man in

believing that the [prosecuted party] had committed or was committing an offense.” Beck v.

Ohio, 379 U.S. 89, 91 (1964).

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 22

A law enforcement officer is entitled to rely on an eyewitness identification to

establish adequate probable cause with which to sustain an arrest . . . unless, at the

time of the arrest, there is an apparent reason for the officer to believe that the

eyewitness was lying, did not accurately describe what he had seen, or was in

some fashion mistaken regarding his recollection of the confrontation.

Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir. 1999) (citations omitted). “In general, the

existence of probable cause in a § 1983 action presents a jury question, unless there is only one

reasonable determination possible.” Ouza v. City of Dearborn Heights, 969 F.3d 265, 279 (6th

Cir. 2020) (quoting Gardenhire v. Schubert, 205 F.3d 303, 315 (6th Cir. 2000)).

Here, Defendants’ argument fails because, as we have already explained, Plaintiffs have

created a triable question as to whether Stewart’s testimony was fabricated. And probable cause,

of course, is not supported by fabricated evidence. See Manuel, 580 U.S. at 367; King, 852 F.3d

at 587–88. Further, even if a jury concluded that the evidence was not fabricated, the jury could

still find that “there [was] an apparent reason for the officer[s] to believe that [Stewart] was

lying.” Ahlers, 188 F.3d at 370 (citation omitted). Accordingly, a jury could find that the

testimony was not sufficiently reliable to establish probable cause.

Defendants put emphasis on the contents of Stewart’s testimony at the preliminary

examinations and argue that the testimony she gave there was sufficient to establish probable

cause. See D. 32 (Defs.’ Br. at 42–43). But it is immaterial that Stewart’s statement contained

numerous allegations that, if trustworthy, would have sufficed. See id. (citing Stewart’s

statements that “Clark is a drug dealer and is known to carry a gun,” “Martin was murdered with

a gun over a drug/money dispute,” and “Clark and Harrington [were] at the scene of the

murder”). The crucial question is whether Stewart’s testimony was fabricated or, at least,

whether her testimony was unreliable. Accordingly, we affirm the district court’s denial of

summary judgment on the federal malicious-prosecution claim.5

5Defendants also raise their countervailing theory of the case, that “Stewart’s fear and changing details in

her stories was due to the intimidation she received from Plaintiffs.” D. 32 (Defs.’ Br. at 43). It is for the jury—not

for us—to decide who intimidated whom in this case. We have no jurisdiction to weigh in at this juncture.

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 23

VI. MICHIGAN MALICIOUS PROSECUTION

Plaintiffs also assert a claim for malicious prosecution under Michigan common law. To

demonstrate malicious prosecution under Michigan law, a plaintiff must show: (1) “[p]rior

proceedings terminated in favor of the present plaintiff”; (2) the “[a]bsence of probable cause for

those proceedings”; (3) [m]alice, defined as a purpose other than that of securing the proper

adjudication of the claim”; and (4) “[a] special injury that flows directly from the prior

proceedings.” Moldowan v. City of Warren, 578 F.3d 351, 390 (6th Cir. 2009) (quoting Payton

v. City of Detroit, 536 N.W.2d 233, 242 (Mich. Ct. App. 1995)). Because Defendants challenge

only the probable-cause element and repeat the arguments made with respect to the federal

malicious-prosecution claim, we reject the argument for the same reasons.

Michigan also provides qualified immunity to government officials who commit

intentional torts like malicious prosecution. Odom v. Wayne County, 760 N.W.2d 217, 224, 228

(Mich. 2008). To benefit from qualified immunity, the officer must show that he took a (1)

discretionary action that was (2) in the scope of his authority (or what he believed was the scope

of his authority); and (3) in good faith. Id. at 224–26. Good faith carries its common-law

meaning—an officer does not act in good faith when he acts “maliciously, or for an improper

purpose.” Id. at 224 (citation omitted). “[T]here is no immunity when the governmental

employee acts maliciously or with a wanton or reckless disregard of the rights of another.” Id.

at 225.

Defendants argue that they are entitled to governmental immunity, contending that they

acted without malice because “they interviewed a witness using lawful means, and acted based

on a reasonable belief that probable cause existed.” D. 32 (Defs.’ Br. at 48). To be sure, “[a]

police officer would be entitled to immunity . . . if he acted in good faith and honestly believed

that he had probable cause to arrest, even if he later learned that he was mistaken.” Odom, 760

N.W.2d at 229; see Latits v. Phillips, 826 N.W.2d 190, 194 (Mich. Ct. App. 2012). Here,

however, as we have explained, Plaintiffs’ claim is that the Defendants knew they did not have

probable cause because the statement on which they relied was fabricated, or at least unreliable.

See Odom, 760 N.W.2d at 225 (defining malicious intent to include “conduct [that] alleged[ly]

shows an intent to harm or, if not that, such indifference to whether harm will result as to be the

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 24

equivalent of a willingness that it does” (citation omitted)). As we have explained, the facts

taken in the light most favorable to Plaintiffs support this position, and we have no jurisdiction to

consider whether the evidence better supports Defendants’ argument that they reasonably

believed that there was probable cause. Accordingly, we affirm the district court’s denial of

summary judgment on the Michigan malicious-prosecution claim.

VII. BRADY VIOLATIONS

Plaintiffs’ final claim is that Abdallah violated their due-process rights by withholding

exculpatory evidence concerning Wiseman and Moore under Brady v. Maryland, 373 U.S. 83

(1963). A Brady claim has three elements: (1) “the evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is impeaching”; (2) “that evidence must

have been suppressed by the State, either willfully or inadvertently”; and (3) “prejudice must

have ensued.” Jackson, 925 F.3d at 814 (quoting Strickler v. Greene, 527 U.S. 263, 281–82

(1999)). Police officers, like prosecutors, have Brady obligations and “police can commit a

constitutional deprivation analogous to that recognized in Brady by withholding or suppressing

exculpatory material.” Moldowan, 578 F.3d at 379.

With respect to Wiseman, Plaintiffs claim that Abdallah withheld Brady evidence that he

fabricated her testimony through threats (of jail time and loss of her children) and benefits (to aid

her with the shoplifting case). D. 38 (Pls.’ Br. at 46). According to Plaintiffs, this information,

if disclosed, “would have completely tainted the entire investigation.” Id. And if the jury heard

this information, it could have been used to impeach Stewart’s credibility. Id. Essentially, if the

jury knew how Abdallah pressured Wiseman to change her story, this evidence would have cast

doubt on the integrity of the investigation and suggested that the jury should believe Stewart’s

recantation, rather than her initial statement. The district court agreed. Clark, 2023 WL

4852230, at *14.

Abdallah objects that the evidence about Wiseman was not withheld under Brady because

it “was, or should have been, known to Plaintiffs.” D. 32 (Defs.’ Br. at 46). For evidence to be

withheld under Brady, “the evidence [must] be in the exclusive control of the state.” McNeill v.

Bagley, 10 F.4th 588, 600 (6th Cir. 2021). There is no Brady violation when the person on trial

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 25

“knew or should have known the essential facts permitting him to take advantage of any

exculpatory information, or where the evidence is available . . . from another source.” Coe v.

Bell, 161 F.3d 320, 344 (6th Cir. 1998) (quoting United States v. Clark, 928 F.2d 733, 738 (6th

Cir. 1991)). If the person on trial knows or should have known the crucial information, “there is

really nothing for the government to disclose.” Id. So, for example, a police officer may not

violate Brady when he withholds the statement of an alibi witness, considering that the defendant

knows the essential fact—whether he was with this witness or not—and had the ability to call the

witness at trial. McNeill, 10 F.4th at 600. Similarly, we held that the police did not violate

Brady by withholding letters relating to the victim’s extramarital affair when the record showed

that the alleged perpetrator was fully aware of the affair and able to call witnesses to testify to

that fact. Owens v. Guida, 549 F.3d 399, 417 (6th Cir. 2008).

But the availability of a witness does not undermine a Brady claim when the criminal

suspect does not know the facts essential to properly question the witness and find the

exculpatory or impeaching information. Brady “does not require the State simply to turn over

some evidence, on the assumption that defense counsel will find the cookie from a trail of

crumbs.” Barton v. Warden, 786 F.3d 450, 468 (6th Cir. 2015). And we have never suggested

that information concerning a defense witness can never be withheld under Brady. Like the

Seventh Circuit, we find “untenable a broad rule that any information possessed by a defense

witness must be considered available to the defense for Brady purposes.” Boss v. Pierce, 263

F.3d 734, 740 (7th Cir. 2001); see also Johnson v. Folino, 705 F.3d 117, 130 n.7 (3d Cir. 2013)

(“[I]t simply cannot be the case that any information possessed by a witness—particularly a

government witness—is available as long as he or she is subject to cross-examination.”).

Accordingly, in Barton, we held that the police violated Brady by withholding a supplemental,

contradictory statement of a witness, even when the witness’s initial statement, together with her

contact information, was included in a disclosed report. Barton, 786 F.3d at 467–68. The

crucial question is not whether the witness is available, but whether the person on trial was aware

of the essential facts from which the Brady material can be discovered.

Here, the essential facts about Wiseman’s testimony were withheld. Specifically, taking

the facts in the light most favorable to the Plaintiffs, the police and prosecution failed to disclose

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 26

threats and inducements made to convince Wiseman to change her story. It was not disclosed

that Wiseman was coerced or that Abdallah facilitated her release from jail without bond.

Anderson v. City of Rockford, 932 F.3d 494, 507 (7th Cir. 2019) (holding that Brady “require[s]

disclosure to the plaintiffs of the coercive tactics used to obtain [a witness’s] statement”). That

evidence would have been useful to impeach both Wiseman’s testimony and Stewart’s

testimony, and to cast doubt on the entire investigation. This evidence could have helped

Plaintiffs “prove that [Wiseman’s] statements were false” and undermined the credibility of

Stewart’s testimony. Avery v. City of Milwaukee, 847 F.3d 433, 444 (7th Cir. 2017).

Undermining the credibility of Stewart’s testimony was critical because she was the only

purported eyewitness to the crime, and no physical evidence ever inculpated Clark or Harrington.

And a defendant undoubtedly “suffers prejudice from the withholding of favorable impeachment

evidence when the prosecution’s case hinges on the testimony of one witness.” Harris v. Lafler,

553 F.3d 1028, 1034 (6th Cir. 2009) (collecting cases).6

Neither the relationship between Wiseman and Plaintiffs nor the testimony at trial

undermines this analysis. As discussed above, the mere fact that Wiseman was initially a

defense witness is not decisive. And Wiseman’s testimony during the first trial does not

demonstrate that Plaintiffs’ trial counsel was “fully aware of this [information] at trial and, in

fact, explored it,” as the dissenting opinion argues. Dissenting Op. at 38. It is true that

Plaintiffs’ counsel was aware of Wiseman’s initial story, new story, and the fact that her story

changed after a meeting with police. She was cross-examined extensively about this at the first

trial. But the trial testimony did not disclose why she changed her story. To the contrary, at the

first trial, Wiseman repeatedly denied that she had been threatened or promised anything by the

police. See D. 37 (App’x at 292, 305) (Wiseman First Trial Test. at 134, 247). Although

somewhat convoluted, her testimony seemed to be that she changed her story after receiving a

subpoena that warned her of the penalties for perjury. Id. at 323–24 (Wiseman First Trial Test.

6We lack jurisdiction to consider Defendants’ additional argument that this evidence is not exculpatory

because Wiseman stated in a recent deposition that she was with Stewart only part of the night and not during the

timeframe of the murder itself, so the testimony does not exclude the possibility that Stewart witnessed the murder.

See Defs.’ Br. at 45 (citing R.138-20 (Wiseman Dep. Tr. at 19–20) (Page ID #4312–13)). Even if they were

together only part of the night, Wiseman’s account would still contradict Stewart’s, because Stewart testified that

she was home all night.

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 27

at 165–66). The only threats she mentioned were alleged threats from the Plaintiffs attempting to

stop her from testifying to the new story and from warrant officers who came to enforce the

prosecution’s subpoena after she spoke to police. Id. at 292–93, 323–24 (Wiseman First Trial

Test. at 134–35, 165–66). And although she admitted that she was released from jail after

talking to Abdallah and did not have a next court date scheduled, she told the jury that she paid a

bond to get out. See id. at 310, 318–20 (Wiseman First Trial Test. at 152, 160–62). In sum, at

the first trial, neither the information about the bond payment nor the information about the

threats and coercion were disclosed.7

The dissenting opinion mistakes the opportunity to question a witness about the relevant

information with the ability to obtain the relevant information. Our analysis in Harris v. Lafler is

instructive. In Harris, the police failed to disclose informal threats and promises made to the

prosecution’s eyewitness before trial. 553 F.3d at 1033. We held that the state violated Brady

by failing to disclose those promises and threats even though the defendant had an opportunity to

cross-examine the witness. Id. at 1034. We recognized that without the information about the

promises and threats, defense counsel was left empty-handed when he tried to impeach the

witness on the stand. Id. (“Even though a transcript of the hearing shows that [the defendant’s]

counsel anticipated that [the eyewitness] must have been promised something in exchange for his

testimony, he had no way to prove it.”). The same is true here. At the first trial, Plaintiffs’

counsel knew Wiseman changed her story, and they asked questions on cross-examination about

why she did so. But their efforts to impeach her were hampered because, taking the evidence in

the light most favorable to Plaintiffs, they lacked the evidence about the threats and promises that

were made to induce her to change her story.

Turning next to Moore, Plaintiffs claim that Abdallah withheld evidence that he jailed

Moore for three days and threatened her with obstruction charges, pressuring her to relinquish

Clark’s alibi. See D. 38 (Pls.’ Br. at 47). Plaintiffs say that withholding this information was

prejudicial because it could have been used to impeach Abdallah; presenting evidence that he

7To the extent that Abdallah is arguing that Plaintiffs or their attorneys were in fact aware of the threats that

Abdallah made to Wiseman, we have no jurisdiction to consider this argument because it is a dispute with the

factual inferences in this case. See D. 32 (Defs.’ Br. at 46). We consider the argument here only to the extent that it

rests on the undisputed facts.

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 28

engaged in a “consistent pattern of baseless threats of jail and criminal charges if Moore did not

change her story would lend credence to each of the witnesses’ stories and would have

decimated the integrity of the police investigation led by Abdallah.” Id. at 48. The district court

agreed. Clark, 2023 WL 4852230, at *14.

Abdallah again disputes whether the evidence of Moore’s coercion was actually withheld

under Brady. D. 32 (Defs.’ Br. at 45). Abdallah argues that the “essential facts” about Moore

were that she was “always known to Clark,” that “Clark’s attorney spoke with Moore, and she

was listed as an alibi” and that “Moore was ready and willing to testify—and was simply not

called as a witness.” D. 52 (Defs.’ Reply at 11). This argument once again fails to appreciate

the core of the essential-facts doctrine. Although it is relevant that Plaintiffs had access to

Moore, the essential fact is that Abdallah engaged in coercive tactics to persuade her to change

her story. There is no dispute that this fact was not disclosed.8 Had this fact been disclosed and

shared at trial, it would have supported Plaintiffs’ theory that Abdallah engaged in a pattern of

witness coercion in a bad-faith effort to pin the murder on Clark and Harrington. If presented at

trial, this evidence would have further undermined the credibility of Stewart’s preliminary-

examination testimony and supported Stewart’s claim that she had been threatened by police to

point the finger at Clark and Harrington.

The dissenting opinion would also reverse the district court’s Brady determinations on

the grounds that Moore’s and Wiseman’s testimony is too unbelievable to survive summary

judgment. According to the dissent, the witnesses’ accusations of police misconduct are so

incredible and uncorroborated that “we are left to wonder how the prosecutor could have fulfilled

8To be clear, we do not suggest that information held by an available witness, but not disclosed by the

prosecution, is always considered suppressed under Brady. The question in such cases is whether the information

possessed by the witness should have been discovered by defense counsel with minimal investigation. See Jalowiec

v. Bradshaw, 657 F.3d 293, 311 (6th Cir. 2011). So, a witness’s testimony is properly considered suppressed when

the testimony regards information that defense counsel could not reasonably expect the witness to possess. See, e.g.,

Boss, 263 F.3d at 741, 743–44. The testimony at issue here is slightly different. In many cases, defense counsel can

reasonably expect a witness to have knowledge of their prior interactions with investigators. But viewing the facts

in the light most favorable to Plaintiffs, a reasonable juror could conclude that defense counsel would have been

unable to discover Moore’s and Wiseman’s statements because there is reason to think that they would not have told

defense counsel the truth about their interactions with investigators. See Crivens v. Roth, 172 F.3d 991, 997 (7th

Cir. 1999). Considering the prior threats, a juror could reasonably conclude that Moore and Wiseman, fearing

retaliation, would not tell defense counsel about the investigators’ coercive tactics. That is sufficient to create a

genuine dispute as to whether the evidence was suppressed under Brady.

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 29

his affirmative duty to learn of such information so as to share it with the defense.” Dissenting

Op. at 35. This is not a valid basis to reverse the denial of summary judgment because

determinations about the credibility of witnesses fall squarely within the province of the jury and

outside the scope of this interlocutory appeal. See Berryman v. Rieger, 150 F.3d 561, 564 (6th

Cir. 1998) (dismissing qualified-immunity appeal for lack of jurisdiction when the dispute turned

on “credibility determinations we cannot make”). Because the dissent’s conclusion rests on a

determination that the witnesses’ testimony is not credible, we lack jurisdiction to decide the

issue. Johnson, 515 U.S. at 313.

This case does not present the “exceptional circumstances” in which we may reject a

witness’s testimony on appeal because the district court’s “factual determination . . . is ‘blatantly

contradicted by the record, so that no reasonable jury could believe it.’” Adams, 946 F.3d at 948

(quoting Scott, 550 U.S. at 380). Here, there is no piece of irrefutable record evidence—such as

a video recording of the interactions between Abdallah and Wiseman or Moore—that directly

contradicts Wiseman’s and Moore’s testimony. The conflicting testimony of Abdallah, see

Dissenting Op. at 35, certainly does not fit the bill; that is a paradigmatic dispute for the jury to

hear. See Adams, 946 F.3d at 950. The dissenting opinion also points to the conflict between

Stewart’s and Wiseman’s accounts of what happened on the night of Martin’s death. Dissenting

Op. at 34–35. But the tension between those stories does not require us to reject Plaintiffs’

Brady claim because, even if Wiseman were lying about being with Stewart on the night of the

murder, it may still be true that Abdallah’s undisclosed coercive tactics led Wiseman to tell a

false story about her interactions with Plaintiffs’ attorneys, and that the evidence of the coercion

could have impeached Abdallah and lent credibility to Stewart’s account that she was forced to

lie. Accordingly, there is no valid basis to weigh the sufficiency of the evidence at this juncture.

Perhaps seeking to bring this argument within our limited jurisdiction, the dissenting

opinion further contends that “Moore’s and Wiseman’s accusations are not evidence and,

therefore, not Brady evidence.” Dissenting Op. at 35. The position that allegations of police

misconduct cannot support a Brady claim is contradicted by binding case law in this circuit.

Even if Brady materials are typically materials and documents in a police or prosecutor’s file, we

have recognized that Brady material need appear in tangible form and that allegations of police

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 30

misconduct can independently support a Brady claim. See Bell v. Bell, 512 F.3d 223, 233 (6th

Cir. 2008) (en banc) (recognizing that “a less formal, unwritten or tacit agreement is also subject

to Brady’s disclosure mandate”); United States v. Rodriguez, 496 F.3d 221, 226 (2d Cir. 2007)

(“The obligation to disclose information covered by the Brady and Giglio rules exists without

regard to whether that information has been recorded in tangible form.”). In Jackson, for

example, we reversed the grant of summary judgment on a Brady claim based on an individual’s

allegations that a police officer knew his false statement “had been coerced.” Jackson, 925 F.3d

at 825. Similarly, in Harris we reversed the denial of habeas corpus based on a witness’s

allegation that police officers made him informal promises in exchange for his false testimony.

Harris, 553 F.3d at 1033–34. These cases, which the dissent fails to address, directly support the

proposition that a Brady claim can rest on a witness’s allegation of undisclosed police

misconduct. The evidence here is no different: both Wiseman and Moore claim that police

sought to obtain or succeeded in obtaining their false testimony through undisclosed coercion

and threats.9

The case upon which the dissenting opinion relies, Coleman v. Bradshaw, 974 F.3d 710

(6th Cir. 2020), does not undermine the viability of this Brady theory at all. Coleman concerned

a man who was convicted of killing a witness to keep her from testifying at his trial on drug

charges. Id. at 713. After trial, another convicted murderer swore an affidavit stating that he

killed the same woman and previously shared this information with police during an interview.

Id. at 716–17. In Coleman, we recognized, in dicta, that the affidavit was not “itself . . . Brady

evidence; It [was] evidence of alleged Brady evidence” that the other convicted murderer had

previously confessed to the police, and that police had withheld the confession from the defense

in violation of Brady. Id. at 719. In so doing, we applied the exact principle that the dissent

rejects—that a witness’s after-the-fact statement about their interactions with police can be

evidence of Brady material not previously disclosed. Coleman came to us on habeas review, and

we applied the deferential standard required by the Antiterrorism and Effective Death Penalty

Act of 1996, 28 U.S.C. § 2254. Because the state court, acting as a factfinder, found that the

9The dissent also maintains our holding will open the floodgates to Brady claims grounded in

“gamesmanship and fraud.” Dissenting Op. at 36. But it is the rare defendant who will be able to overcome Heck v.

Humphrey’s favorable termination requirement. See 512 U.S. 477, 486–87 (1994).

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 31

affidavit was not credible, we did not disturb that conclusion. Coleman, 974 F.3d at 719. This

case arises in a much different procedural context. Here, at summary judgment, the district court

has determined that the evidence put forth by Plaintiffs suffices to create a triable issue. We

have no occasion to judge the credibility of Wiseman’s and Moore’s testimony; that question is

left to the sound judgment of the jury. For these reasons, we will affirm the district court’s

denial of summary judgment on the Brady claims.

VIII. CONCLUSION

For the foregoing reasons, we AFFIRM the decision of the district court and REMAND

for trial on the merits.

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 32

_____________________________

CONCURRENCE / DISSENT

_____________________________

ALICE M. BATCHELDER, Circuit Judge, concurring in part and dissenting in part.

I agree with the denial of qualified immunity on the fabrication-of-evidence and malicious-

prosecution claims and, therefore, concur in the Majority’s analysis and judgments for those

claims. But I would reverse the district court on the Brady claims because the allegedly withheld

information is not the type of evidence that fits within Brady’s disclosure requirements and, even

if it were, that information was readily available to defense counsel at the time of trial.

Put simply, the prosecution must disclose to the defense the evidence in its possession

that is favorable to the accused. Brady v. Maryland, 373 U.S. 83, 87 (1963). Due to the breadth

of this rule, “the individual prosecutor has a duty to learn of any favorable evidence known to the

others acting on the government’s behalf in th[e] case, including the police.” Strickler v. Greene,

527 U.S. 263, 281 (1999) (quotation marks and citation omitted). But Brady does not require the

prosecution to “make a complete and detailed accounting to the defense of all police

investigatory work on a case.” United States v. Agurs, 427 U.S. 97, 109 (1976) (quotation marks

and citation omitted); accord Arizona v. Youngblood, 488 U.S. 51, 55 (1988). And Brady does

not apply to information that is otherwise available to the defense. See Henness v. Bagley, 644

F.3d 308, 325 (6th Cir. 2011) (“Since Henness was aware of the essential facts that would enable

him to take advantage of the exculpatory evidence, no Brady violation occurred.”); Coleman v.

Mitchell, 268 F.3d 417, 438 (6th Cir. 2001) (“The Brady rule does not assist a defendant who is

aware of essential facts that would allow him to take advantage of the exculpatory evidence at

issue.”).

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 33

The two Brady claims here concern Detective Abdallah’s treatment of two anticipated

defense witnesses: Tyrhonda Moore and Tammy Wiseman.1 When Clark was arrested, Moore

went to the police station with an alibi for Clark. Moore contends that Det. Abdallah berated her

and accused her of lying, threatened to arrest her unless she changed her story, and locked her in

jail for three days! As far as I can tell, there is no record of her being held in jail; there is only

this alarming claim. And she says that despite this, she never changed her story, but Abdallah

released her from jail anyway. Ultimately, Moore did not testify, but according to Clark, “alibi

witness Tyrhonda Moore was subpoenaed and ready to testify at [his] trial, but was never called

as a witness.” Clark v. Romanowski, No. 08-10523, 2010 WL 3430782, at *10 (E.D. Mich. Aug.

30, 2010). So, the story is that after three days of unlawful incarceration—which she withstood

without relenting—Moore was released and went to testify at Clark’s trial, but never told Clark’s

attorney about any of it. That defies belief. And Abdallah has denied it entirely; he denied that

he threatened or jailed her, and insisted that was a lie. But Clark and Harrington ask us to

presuppose that Moore’s accusation is true, construe that unbelievable and contested accusation

1A third Brady claim concerned a woman named Kaneka Jackson. In 2015 (12 years after the trial),

Jackson swore out an affidavit and mailed it to Clark in prison, whereupon he used it to seek habeas relief. In that

affidavit, Jackson claimed that she saw Martin’s murderer and it was not Clark; she saw a tall, dark skinned man

with a silver handgun pressed to the back of Martin’s head walk him into the woods, heard three gunshots, and then

saw the gunman run out of the woods alone. The district court judge accepted this affidavit as true and granted

Clark habeas relief. Clark v. Nagy, No. 2:16-cv-11959, 2018 WL 3239619 (E.D. Mich. July 3, 2018). The

government appealed.

At a hearing to consider Clark’s motion for release on bond pending appeal, two witnesses testified:

Jackson and CIU Detective Patricia Little. Jackson’s testimony was markedly different from her affidavit: she said

she saw Martin and another man walk past her apartment and later heard some shots, but she was inside the house

and did not see anything else—she did not see a gun or a man run away. Det. Little produced recordings of prison

phone calls between Clark and Jackson that suggested that Clark would be paying Jackson for her assistance. But

the district court reasserted its belief in Jackson’s story and ordered Clark released from prison immediately. Three

days later, the Sixth Circuit ordered Clark back to prison. Eventually, the Sixth Circuit reversed the grant of habeas

relief and remanded for an evidentiary hearing on the truth of the affidavit. Clark v. Warden, 934 F.3d 483 (6th Cir.

2019).

In December 2019, while Clark’s habeas petition was proceeding on remand, the Michigan Innocence

Clinic submitted a report to the CIU on behalf of Kevin Harrington, asserting that both men were actually innocent.

But that report also stated that “the account of Kaneka Jackson [was] inconsistent and unreliable,” and gave several

specific reasons why she was “not credible.” And, when Clark and Harrington filed this lawsuit, the defendants

deposed CIU Director Valerie Newman, who said that CIU found Kaneka Jackson “not credible, and we did not rely

on her in any way, shape, or form,” and “didn’t believe her at all.”

In this case, Clark and Harrington pressed a Brady claim based on Jackson’s story and that she told it to

Inkster Police Officer Greg Hill when it happened. Despite its unwavering belief in Jackson’s story, the district

court denied the Brady claim because there was no evidence that Det. Abdallah and Sgt. Smith would have been

aware of that information. Clark v. Abdallah, No. 21-10001, 2023 WL 4852230, at *16 (E.D. Mich. July 28, 2023).

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 34

as “evidence,” and find that Abdallah violated Brady by failing to disclose that “evidence” to

defense counsel—that is, by failing to tell defense counsel that he had illegally jailed Moore to

coerce her to change her story. That is an odd view of Brady evidence.2

Meanwhile, when Tammy Wiseman was arrested for shoplifting, the police discovered

that she had been subpoenaed and intended to testify that the prosecution’s sole eyewitness,

Bearia Stewart, could not have seen the murder because she was with Wiseman at the time

(about 10 or 11 p.m. on that Thursday night). But when she testified at trial, Wiseman denied

that she was with Stewart and said that Harrington’s attorney had convinced her to lie about it.

Wiseman later recanted that testimony, claiming that Stewart was with her on the night of the

murder, and that she had lied at trial because Det. Abdallah had threatened her and promised to

help her with her shoplifting charge in exchange for the false testimony. Abdallah has denied

this. Wiseman’s current story is that Stewart brought her two children to Wiseman’s house on

the Thursday afternoon before the murder, spent that evening with Wiseman, and left the

children sleeping at Wiseman’s when she (Stewart) went “to make a run” at about midnight.

Stewart did not return, but called Wiseman at 8:30 or 9 a.m. on Friday morning to tell her about

Martin’s murder. While that is a reasonable story, it contradicts every version of Stewart’s story.

Stewart has never in any version of her story said that she was with Wiseman on the night of the

murder. From the very beginning, Stewart said she was at home with her children, that her

seven-year old son got off the school bus at 3 p.m. on Thursday, that they were outside riding

bikes, had dinner and baths, and she walked him to the bus stop at 7 a.m. on Friday, when

Martin’s body was found. Stewart’s most extensive testimony about her amended version of the

story—in which she did not witness anything to do with the murder—was during the fourth trial

2Typically, Brady evidence or Brady materials are documents or records that are contained in a police or

prosecutor’s file, and are (or could be) obtained later through a Freedom of Information Act type request. See, e.g.,

Brady, 373 U.S. at 84 (the prosecutor withheld a written statement “in which [the accomplice had] admitted the

actual homicide”); Agurs, 427 U.S. at 100 (the murder victim’s prior criminal record); United States v. Bagley, 473

U.S. 667, 671 (1985) (receipts for payments to the prosecution’s witnesses for their testimony against Bagley); Kyles

v. Whitley, 514 U.S. 419, 428-29 (1995) (witness statements, internal memos, and notes in the investigatory files);

Strickler, 527 U.S. at 266 (“documents prepared by [the key eye-witness], and notes of interviews with her, that

impeach significant portions of her testimony”); Cone v. Bell, 556 U.S. 449, 459 (2009) (witness statements, police

reports, and police bulletins supporting Cone’s drug addiction); Turner v. United States, 582 U.S. 313, 321-23

(2017) (police and prosecutor’s notes obtained from a “postconviction review of the prosecutor’s files”); Glossip v.

Oklahoma, 604 U.S. --, 2025 WL 594736, at *3 (U.S. Feb. 25, 2025) (file notes concerning Glossip’s mental

health).

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 35

(Harrington’s final re-trial), in which she stated unequivocally that she was at home that night

and her children were with her. When asked about Wiseman, Stewart revealed that Wiseman

had hired Stewart an attorney, who was there to represent Stewart while she testified, and that

Wiseman was cousin to Kevin Harrington’s half-brother, Michael—but Stewart never said she

was with Wiseman on the night of the murder. Both stories could be false, but both cannot be

true: Stewart and her children could have been at their home, or they could have been at

Wiseman’s house, but not both. If Stewart’s amended story is also true, as we assume for

purposes of resolving Abdallah’s summary-judgment motion, then Wiseman’s contradictory

story is not. But Clark and Harrington ask us to presuppose that Wiseman’s story is true,

construe her accusations as “evidence,” and find that Abdallah violated Brady by failing to

disclose that “evidence” to defense counsel—that is, by failing to tell defense counsel that he had

threatened and bribed Wiseman to coerce her to change her story. Again, this is an odd view of

Brady evidence.

I would hold that Moore’s and Wiseman’s accusations are not evidence and, therefore,

not Brady evidence. Cf. Coleman v. Bradshaw, 974 F.3d 710, 719 (6th Cir. 2020) (“The

affidavit itself is therefore not Brady evidence: It is evidence of alleged Brady evidence.”).

These are very serious but uncorroborated, long-after-the-fact accusations, both of which

Abdallah emphatically denies. Neither accusation has led to any other evidence, such as a jail

record, an interview note, or an unidentified witness. These are, at the very most, accusations of

police misconduct and accusations are not evidence. Moreover, given Abdallah’s denial and the

absence of any corroborating proof, we are left to wonder how the prosecutor could have

fulfilled his affirmative duty to learn of such information so as to share it with the defense. See

Strickler, 527 U.S. at 281.

Put another way, exactly what is the “evidence” that would have been produced at trial if

not for Det. Abdallah’s purported suppression? It was certainly not testimony by Abdallah that

he unlawfully threatened and coerced Moore and Wiseman—if he had been questioned about

that at trial, he certainly would have denied it entirely, as he has denied it every time that he has

been asked about it since then. Nor is there any tangible document or uncalled witness. This

would-be “evidence” is solely Moore’s and Wiseman’s stand-alone accusations. And, given

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 36

Abdallah’s denials, these accusations were not known to (i.e., in the possession of) the police or

prosecutor. This becomes Brady evidence only if Moore’s and Wiseman’s accusations are

proven true (and Abdallah’s denials false), which requires a jury’s finding (or a presumption).

So, on remand, Clark and Harrington will present these accusation-based Brady claims to a jury.

Then, only if the jury finds that Abdallah did commit the misconduct (i.e., the jury finds Brady

violations) will there be any Brady evidence to support that Brady claim. The finding of the

violation creates the evidence that proves the violation. Because if the jury finds no facts to

support a Brady violation (i.e., that Abdallah did not commit the misconduct), then there was no

Brady evidence to disclose in the first place.

Presupposing or pretending that such uncorroborated, after-the-fact accusations are Brady

evidence that could have been and should have been disclosed long ago risks opening the door to

gamesmanship and fraud. It takes little imagination to see how. If every post-hoc accusation is

Brady evidence, then any sufficiently creative accusation, regardless of its truth, becomes an

actionable Brady claim. A prisoner produces an unscrupulous witness who falsely claims that

she went to the police station to provide an alibi and the officer frightened her into leaving

without giving the alibi; the officer’s failure to disclose that scare tactic to the defense creates a

viable Brady claim; and post-conviction counsel (or, as here, a plaintiff’s § 1983 counsel) can

have a jury decide whether to believe the witness that it happened or the police officer that it did

not.

In addressing this dissent, the Majority reads it to say that I would reverse the Brady

determination merely because I disbelieve Moore and Wiseman. To be sure, I do not believe

either of them; nor do I think that reasonable jurors would likely believe them, just as no one

(other than the district court judge) has ever believed Kaneka Jackson. See fn. 1, supra. But that

is actually beside the point. My point is that this is not Brady evidence because these accusations

are not evidence that falls within the Brady construct, regardless of whether the accusations are

true or false. Obviously, if the accusations are false, then the alleged threats and coercion never

happened, so Det. Abdallah (wholly unaware of the later-arriving false accusations) had no such

information to disclose under Brady, and such nonexistent events are indisputably not Brady

evidence.

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 37

But even if these accusations were true—and believable—they are mischaracterized as

Brady evidence and miscast as Brady claims. Moore and Wiseman contend that Abdallah used

unlawful threats and abuse towards coercing their false incriminating testimony. As the Majority

ably explained in its fabrication-of-evidence analysis, this states a colorable claim that Abdallah

violated Clark’s and Harrington’s clearly established due-process rights. That is the claim.

There is no benefit to force-fitting this alleged misconduct into a Brady claim (and, as I see it, a

certain detriment to doing so). If Abdallah unlawfully tampered with their testimony through

threats and coercion, then the fabrication-of-evidence claims succeed and the harm has been

proven.

The clear unbelievability of Moore’s and Wiseman’s post-hoc accusations is relevant, as

I see it, mostly as a demonstration of our deference to the jury question in a summary judgment

(and qualified immunity) analysis. Even though I do not believe them, their testimony is

nonetheless evidence of Abdallah’s alleged fabrication of evidence and malicious prosecution,

which is properly admissible for a jury to consider in those claims. But these accusations also

demonstrate how easy it is to concoct a false Brady claim based on an uncorroborated, long-

after-the-fact accusation. That is what Clark and Kaneka Jackson did, and that concoction—

which has an impressive array of nonbelievers—would still be here if Jackson had claimed she

told Abdallah (instead of claiming she told Lt. Hill, who has since died). See fn.1, supra.

Regardless, the point is that these accusations, whether they are believed or not, are simply not

Brady evidence.

Here, however, even if Moore’s and Wiseman’s accusations were evidence, there would

be no Brady violation given that both were named defense witnesses who either did testify

(Wiseman) or were available to testify (Moore) at trial. So, whatever happened with Det.

Abdallah prior to trial, defense counsel had full opportunity to learn that information from Moore

and Wiseman.

Just to play this out, suppose that Det. Abdallah did unlawfully jail and threaten Moore to

discourage her from testifying as an alibi witness for Clark, and further suppose that he even

wrote a memo about it but withheld that memo from the prosecutor and the defense. While that

memo (and the information therein) would be Brady evidence, there would still not have been a

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 38

Brady violation because Clark’s attorney could have, should have, and would have learned that

information from Moore. Moore was Clark’s voluntary, proactive alibi witness and she was not

only known to Clark’s attorney, she was on his witness list and had been subpoenaed to appear at

trial to testify. And obviously she would know all about Abdallah’s jailing and threatening her.

Even if Moore did not rush to tell defense counsel about this after her release from incarceration,

all of this would have been revealed if defense counsel had called her to testify and simply

asked: “You went to the police station with an alibi for Clark—what happened?” Abdallah’s

failure to disclose this information about Moore would not have kept it from Clark.

The same applies for Wiseman. Even supposing that Det. Abdallah did coerce Wiseman

to change her story through threats and promises, Clark’s and Harrington’s attorneys were well

aware of that at trial. They had initially subpoenaed Wiseman as a defense witness, but she

appeared at trial as a prosecution witness after changing her story (from impeaching Stewart’s

testimony to accusing Harrington’s attorney of suborning perjury). And during that testimony,

both defense counsel were fully aware that she had changed her story after and because of her

police station interaction with Abdallah, and both pressed her about whether she had changed her

story due to threats or promises. She denied (repeatedly) that she received anything, but

conceded that Abdallah had her released from jail and actually drove her home, and that her

shop-lifting case had not proceeded since then. She then admitted on cross-examination that she

changed her story due to the threat of prosecution. Abdallah did not keep this information from

Clark and Harrington; their counsel were fully aware of all of this at trial and, in fact, explored it.

“The Brady rule does not assist a defendant who is aware of essential facts that would allow him

to take advantage of the exculpatory evidence at issue.” Coleman, 268 F.3d at 438.

The Majority characterizes this as my suggesting an absolute rule—i.e., that information

from a defense witness can never be withheld under Brady—and succinctly rejects that rule. But

that is not what I meant to say. I mean only that the information from these defense witnesses,

under these circumstances was not withheld because—given the enormity of the accusations and

the relationship of the defendants to these witnesses—defense counsel in this case could have

and should have learned of these accusations from the witnesses, if the accusations were true.

No. 23-1730 Clark, et al. v. Abdallah, et al. Page 39

I would reject the Brady claims because the allegedly withheld information is not the type

of evidence subject to Brady’s production and disclosure requirements and, even if it were, that

information was available to defense counsel at the time of trial. I concur in all other respects.