Latta, Roger v. LaPorte County Sheri

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued November 3, 2006

Decided February 12, 2007

Before

Hon. FRANK H. EASTERBROOK, Chief Judge

Hon. JOEL M. FLAUM, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 05-4495

Appeal from the United

ROGER LATTA and JACQUELINE LATTA, States District Court for the

Plaintiffs-Appellants, Northern District of Indi-

ana, Hammond Division.

v.

WALTER CHAPALA, et al., No. 2:03-CV-41

Defendants-Appellees. Rudy Lozano, Judge.

Order

On February 14, 1989, the house of Roger and Jacqueline Latta burned down.

Their son Brad, age 2, died in the blaze. Investigators decided that the fire was de-

liberate and that the Lattas had set the blaze. A jury convicted them of arson and,

because of Brad’s death, felony murder. The convictions were affirmed on direct ap-

peal. After the Lattas had served 11 years in prison, however, the Supreme Court of

Indiana held that they were entitled to collateral relief because their lawyer had

furnished ineffective assistance. Latta v. State, 743 N.E.2d 1121 (Ind. 2001). The

prosecutor decided against retrial, and the Lattas were freed.

They then filed suit under 42 U.S.C. §1983 against almost everyone associated

with the prosecution—units of state and local government, investigators, prosecu-

tors, and witnesses (including technical experts), 21 defendants in total. The district

court dismissed all of the Lattas’ claims in a series of opinions running well over

100 pages, and the Lattas have appealed with respect to eight of the defendants. We

No. 05-4495 Page 2

affirm the judgment and see no need to recapitulate the district court’s analysis,

though we add a few comments.

Although the district court concluded that some of the Lattas’ claims are barred

by the statute of limitations, there is no need for us to address this issue, as all of

the claims in question also are covered by immunity or unavailing on the merits.

The grant of certiorari in Wallace v. Kato, 126 S. Ct. 2891 (2006) (argued Nov. 6,

2006), makes it prudent to decide this appeal on other grounds, so that disposition

can be final no matter what happens in Wallace.

Second, although the district court found that prosecutors and witnesses were

protected by principles of qualified rather than absolute immunity, we think that

the better conclusion is that absolute immunity applies. Absolute immunity applies

to prosecutorial decisions and acts. See Imbler v. Pachtman, 424 U.S. 409 (1976).

Witnesses at trial likewise possess absolute immunity in actions under §1983. See

Briscoe v. LaHue, 460 U.S. 325 (1983). None of the witnesses who remain as appel-

lees properly may be classified as a complaining witness, covered only by qualified

immunity. See Kalina v. Fletcher, 522 U.S. 118 (1997). These witnesses did not

claim to be victims of the offense; they were third parties who investigated and tes-

tified about what they found, and such persons are covered squarely by Briscoe.

Plaintiffs maintain that the prosecutors do not have immunity because they

should have arranged for better investigations and built a more complete record be-

fore initiating the prosecution; had they done this, the Lattas insist, they would

have decided not to proceed. But there is no constitutional duty to “do a better in-

vestigation”; prosecutors may proceed on the basis of probable cause (all that is re-

quired for an indictment) and rely on defense counsel to marshal the evidence in de-

fendants’ favor. A jury thought the evidence against the Lattas sufficient beyond a

reasonable doubt; the state court’s grant of collateral relief rested on counsel’s mis-

steps at trial and not any doubt about the quality and sufficiency of the evidence.

Deciding when the evidence is sufficient to stop investigating and seek an in-

dictment is a standard prosecutorial function and covered by absolute immunity be-

cause—unlike searches, seizures, interrogations, and other out-of-court activity—a

decision not to extend a probe does not invade the accused’s extra-judicial entitle-

ments. See generally Buckley v. Fitzsimmons, 509 U.S. 259 (1993) (Buckley III).

The absolute immunity applicable to witnesses covers the preparation for testi-

mony as well as its delivery in court. See Buckley v. Fitzsimmons, 919 F.2d 1230

(7th Cir. 1990) (Buckley I), remanded on other grounds, 502 U.S. 801 (1991). Plain-

tiffs do not contend that the arson investigators independently violated any of their

rights, as by an unjustified search. Their only theory is that the investigators, con-

sultants, and experts did not do an adequately thorough investigation, so that the

testimony presented was incomplete and misleading. Likewise the prosecutor’s de-

cision which expert evaluators to engage does not violate any suspect’s constitu-

tional rights. See Buckley v. Fitzsimmons, 20 F.3d 789 (7th Cir. 1994) (Buckley IV)

(on remand from Buckley III).

No. 05-4495 Page 3

We ackowledge that the methods that arson investigators used in the 1980s and

1990s have come under challenge; most experts today would use different ap-

proaches and therefore could reach different conclusions. See Sue Russell, Arson

evidence—shot down in flames, 2565 New Scientist 42 (Nov. 3, 2006). Whether the

application of today’s tools would exculpate the Lattas is not a subject that can be

resolved on this record but also is not material. Using the methods of the 1980s dur-

ing the 1980s does not violate the Constitution. The criminal process, like other

human endeavors, is imperfect. Science is imperfect too; techniques of arson inves-

tigation and analysis have advanced a good deal in the years since the fire at the

Lattas’ home. Perhaps an injustice has been done, as the Lattas ardently maintain.

Section 1983 does not, however, supply monetary damages for every conviction that

with the benefit of hindsight seems weaker to the federal judiciary than it did to the

prosecutor, jury, and state judiciary.

Plaintiffs assert that one or more of the defendants failed to disclose exculpatory

evidence, a constitutional tort not covered by immunity, see Newsome v. McCabe,

256 F.3d 747 (7th Cir. 2001), rehearing denied, 260 F.3d 824 (2001). The Lattas say

that the chromatograms and comparison samples that Barker & Herbert Analytical

Laboratories used in their analysis of the fire’s origin would have been exculpatory.

Yet the prosecution did not hide this evidence. Defense counsel was aware of it be-

fore trial and had subpoenas issued. Now the Lattas express disappointment with

the information received in response. Any dispute about issues related to this evi-

dence has nothing to do with Brady v. Maryland, 373 U.S. 83 (1963), and its succes-

sors, which concern only information unknown to the defense. If the subpoenas were

not honored in full, the remedy was to ask the trial judge for an order compelling

additional disclosures or to explore the subject on cross-examination when the in-

vestigators testified. All issues related to this evidence were open to litigation on

direct appeal in the state courts.

One final subject requires a brief treatment. Two days after the fire, investiga-

tors questioned Jacqueline Latta. She made statements that the prosecutors inter-

preted as inculpatory. Jacqueline maintains that this interrogation violated her

rights under the fifth amendment. Coercive interrogation out of court is actionable

even though both the witness and the prosecutors have absolute immunity with re-

spect to the introduction of the statements in court. See Chavez v. Martinez, 538

U.S. 760 (2003). See also Buckley III and Buckley IV.

This record, however, would not permit a reasonable jury to conclude that coer-

cive interrogation took place. Jacqueline Latta’s argument is not that the investiga-

tors used torture, sleep deprivation, or some other painful tactic. It is, rather, that

she was distraught and emotionally vulnerable only two days after her son’s death.

No case of which we are aware establishes a constitutional principle that suspects

in serious crimes are entitled to be free of interrogation until their minds are calm.

Good investigative practice requires inquiry to be made while memories are fresh,

and a high-strung emotional state may lead the suspect to tell the truth to put her

conscience at rest. The interrogation did not violate Jacqueline’s rights.

The Lattas’ many claims against governmental bodies are not covered by immu-

nities, but neither did plaintiffs demonstrate the existence of unconstitutional poli-

No. 05-4495 Page 4

cies. See Monell v. New York City Department of Social Services, 436 U.S. 658

(1978). Appellants’ other arguments have been considered and do not require us to

add anything to the district court’s thorough treatment.

AFFIRMED