Susan Mellen v. Marcella Winn

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUSAN MELLEN; JULIE CARROLL; No. 17-55116

JESSICA CURCIO; DONALD BESCH,

Plaintiffs-Appellants, D.C. No.

2:15-cv-03006-

v. GW-AJW

MARCELLA WINN,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

Argued and Submitted May 18, 2018

Pasadena, California

Filed August 17, 2018

Before: Kim McLane Wardlaw, Jacqueline H. Nguyen,

and John B. Owens, Circuit Judges.

Opinion by Judge Wardlaw

2 MELLEN V. WINN

SUMMARY *

Civil Rights / Qualified Immunity

The panel reversed the district court’s summary

judgment in favor of Detective Marcella Winn on qualified

immunity grounds in a 42 U.S.C. § 1983 action.

Plaintiff Susan Mellen was wrongly imprisoned for

seventeen years before securing habeas relief in October

2014, and she and her children brought this civil rights action

against Detective Winn based on her failure to disclose

evidence.

The panel held that the record demonstrated as a matter

of law that Detective Winn withheld material impeachment

evidence under Brady v. Maryland, 373 U.S. 83 (1963), and

Giglio v. United States, 405 U.S. 150 (1972), and raised a

genuine issue of material fact as to whether Detective Winn

acted with deliberate indifference or reckless disregard for

plaintiff’s due process rights.

The panel held that the law at the time of 1997–98

investigation clearly established that police officers

investigating a criminal case were required to disclose

material, impeachment evidence to the defense.

The panel concluded that the district court abused its

discretion by striking the declaration of Mellen’s police

practices expert, Roger Clark.

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

MELLEN V. WINN 3

The panel reversed summary judgment on qualified

immunity grounds and the order striking Clark’s declaration,

and remanded to the district court for further proceedings.

COUNSEL

Anna Benvenutti Hoffmann (argued), Rick Sawyer, and

Nick Brustin, Neufeld Scheck & Brustin LLP, New York,

New York; Deirdre Lynn O’Connor, Seamus Law APC,

Torrance, California; for Plaintiffs-Appellants.

Calvin House (argued), Gutierrez Preciado & House LLP,

Pasadena, California; Laura E. Inlow, Collinson Law,

Torrance, California; for Defendant-Appellee.

OPINION

WARDLAW, Circuit Judge:

Susan Mellen was wrongly imprisoned for seventeen

years before securing habeas relief in October 2014. After

release from prison, Mellen and her three children, Julie

Carroll, Jessica Curcio, and Donald Besch, brought suit

under 42 U.S.C. § 1983 against Detective Marcella Winn,1

arguing that Detective Winn failed to disclose evidence that

would have cast serious doubt on the testimony of June Patti,

1

Mellen’s complaint also named the City of Los Angeles and

Richard Hoffman, Detective Winn’s supervisor, as defendants. Mellen

voluntarily dismissed Hoffman from this case on March 23, 2016, and

she voluntarily dismissed the City and her claims under Monell v.

Department of Social Services, 436 U.S. 658, 690 (1978), on April 1,

2016.

4 MELLEN V. WINN

the star prosecution witness in Mellen’s trial. Detective

Winn asserted qualified immunity, arguing there was no

genuine dispute of material fact as to whether the withheld

evidence was material or as to whether Detective Winn acted

with deliberate indifference or reckless disregard for

Mellen’s due process rights, and that the law at the time of

the investigation did not clearly establish that police officers

were required to disclose material, impeachment evidence.

The district court granted summary judgment in Detective

Winn’s favor.

We conclude, first, that the record demonstrates as a

matter of law that Detective Winn withheld material

impeachment evidence under Brady v. Maryland, 373 U.S.

83 (1963), and Giglio v. United States, 405 U.S. 150 (1972)

(extending Brady to impeachment evidence), and raises a

genuine issue of material fact as to whether Detective Winn

acted with deliberate indifference or reckless disregard for

Mellen’s due process rights. Second, we conclude that the

law at the time of the 1997–98 investigation clearly

established that police officers investigating a criminal case

were required to disclose material, impeachment evidence to

the defense. Finally, we conclude that the district court

abused its discretion by striking the declaration of Mellen’s

police practices expert, Roger Clark. We reverse the grant

of summary judgment on qualified immunity grounds and

the order striking Clark’s declaration, and remand to the

district court for further proceedings consistent with this

opinion.

I.

Susan Mellen was convicted of first-degree murder in

June 1998, based largely on the testimony of June Patti

(Patti). Mellen contends that Detective Winn wrongfully

withheld a statement that June Patti’s sister, Laura Patti

MELLEN V. WINN 5

(Laura), made to Detective Winn before trial. Laura, who

was a Torrance police officer at the time of the investigation,

told Detective Winn that her sister, June Patti, was “the

biggest liar” that she had “ever met” in her life and that she

did not “believe anything [Patti] says.”

Laura said that she based this conclusion on her personal

experiences with her sister, who, since the age of four or five,

“had a habit of not telling the truth.” Laura also explained

that her sister had filed more than twenty complaints against

Laura with the Torrance Police Department, all

unsubstantiated, and that Patti “constant[ly]” lied to Laura’s

colleagues. At her deposition, Laura also said that she

believed that Patti had been a “certified informant” with the

Torrance Police Department in the early 1990s.

Laura stated that her conversation with Detective Winn

was brief, and Detective Winn did not inquire into why

Laura believed her sister was a liar. But it turned out that

Laura was right about her sister. Patti was deemed an

“unreliable informant” by the Torrance Police Department

five years before Mellen’s trial. And in a fourteen-year span

between 1988 and 2002, Patti had more than 800 contacts

with law enforcement, where she was known to exaggerate

or outright lie to police officers to protect or advance her own

interests.

Although the revelations about Patti proved the loose

thread that unraveled Mellen’s wrongful conviction,

Detective Winn contends that no reasonable officer would

have understood that Brady/Giglio required the disclosure of

Laura’s statements. 2 Because the Supreme Court has

2

Detective Winn now also disputes that she ever spoke with Laura

Patti about her sister. She argues, in the alternative, that if the statements

6 MELLEN V. WINN

instructed that Brady/Giglio requires a “fact-intensive”

inquiry into whether “there is a reasonable probability that,

had the evidence been disclosed, the result of the proceeding

would have been different,” Turner v. United States, 137 S.

Ct. 1885, 1888, 1893 (2017) (citations omitted), we turn to a

close examination of the investigation and the trial that

resulted in Mellen’s wrongful conviction.

A. The Investigation

Rick Daly’s body was found burned near a dumpster in

San Pedro, California, on July 21, 1997. After two weeks

while police officers struggled to identify the body, calls

flooded into the Los Angeles Police Department’s (LAPD)

South Bureau Homicide Unit, and filtered to Detective

Winn, who had taken responsibility for the case. The first

tips would later prove the most accurate: a caller told

detectives that Daly was killed by three members of

“Lawndale 13,” a gang that congregated around the “Mellen

Patch,” a duplex in Torrance, California, owned by members

of the Mellen family and frequented by methamphetamine

users. Detectives also heard that Daly was killed in the back

house of the Mellen Patch, where Susan Mellen had lived

before February 1997, 3 and that Daly’s body was transported

in Scott “Skip” Kimball’s car to San Pedro where the three

men set Daly on fire.

On August 12, 1997, Detective Winn prepared a search

warrant for the Mellen Patch and arrest warrants for Lester

were made, she would have communicated them to the prosecutor,

undermining her argument that no reasonable officer would have known

she was required to do so.

3

Mellen moved out of her family home at the Mellen Patch to live

with her boyfriend, Thomas Schenkelberg, and her two children.

MELLEN V. WINN 7

“Wicked” Monllor, Chad “Ghost” Landrum, and Santo

“Payaso” Alvarez, the three men identified in the caller’s tip

and corroborating reports. The LAPD executed the search

warrant at the Mellen Patch early in the morning the next

day. The warrant yielded several potential witnesses and

residents of the Mellen Patch, including Monllor’s mother

and sister, Mellen’s sister-in-law, niece, and nephew, and

two other people from the neighborhood. Detective Winn

later learned that Monllor, Landrum, and Alvarez were in

custody on unrelated charges. Detective Winn had also

earlier spoken with Scott Kimball, who was also in jail on

unrelated charges, and who told Detective Winn that he had

lent his car to his friends on the night of the murder.

The evening after the LAPD executed the search warrant

at the Mellen Patch, June Patti contacted Detective Winn for

the first time, leaving a voicemail message that indicated that

Patti had information about the Daly murder. The next

morning, Patti appeared at Monllor’s arraignment, along

with Monllor’s mother. And two days after Monllor’s

arraignment, Patti directed Detective Winn’s attention to

Susan Mellen, Daly’s ex-girlfriend, and a long-time Mellen

Patch resident. 4

Patti gave her first oral statement to Detective Winn on

August 15, 1997. At the time, she told Detective Winn that,

on the same night that the LAPD executed the arrest warrant

at the Mellen Patch, Patti called Mellen and Mellen’s

4

Detective Winn interviewed a second witness, Cynthia Sanchez,

who also implicated Mellen, but Sanchez told Detective Winn that she

had learned what she knew from June Patti. Sanchez also stated that

Monllor’s mother had asked about whether bleach would “remove blood

from linoleum,” and had cleaned the back of the house—leads that

officers did not follow.

8 MELLEN V. WINN

boyfriend, Tom Schenkelberg (Tom), to buy “speed.”

Because Patti was purportedly a paralegal at the courthouse

(she was not), and came from a family of police officers,

Mellen asked to meet Patti at the motel where Patti was

staying to talk about the Daly murder.

It was at the Travelodge motel that Mellen allegedly

confessed her involvement in Daly’s murder to Patti. Patti

said that Mellen told her that she and Tom, with help from

Chad Landrum, killed Daly because Daly “kept going in

[Mellen’s mother’s house] and stealing all her things, their

speed, their pips [sic].” Patti said that Mellen had told her

that Tom and Landrum kicked Daly and taped his mouth

shut, that Landrum pulled out a knife and threatened to stab

Daly, and that Tom and Landrum set fire to Daly in Mellen’s

mother’s house. 5 Mellen allegedly told Patti that she pulled

back Daly’s head with his bandana, kicked Daly, and got

high while Tom and Landrum beat Daly. Patti also said that

a fourth, unnamed person came over from next door to tell

Mellen, Tom, and Landrum to be quiet, and that this person

was already in custody. 6 Patti said that Mellen and Landrum

put Daly in the back of Mellen’s car and “dropped him off”

in San Pedro because “Tom didn’t want to go.”

5

Patti also told Detective Winn that Tom and Landrum set fire to

the back house of the Mellen Patch that night. In fact, however, the back

house was not burned until ten days after police discovered Daly’s body.

6

Patti ended her oral statement to Detective Winn by stating that she

had previously helped a Lomita detective named “Marshall” arrest

someone named “Trigger” for murder. Neither this statement nor Patti’s

role as a paid informant was investigated.

MELLEN V. WINN 9

At the end of the August 15, 1997 recorded oral

statement, 7 Detective Winn prepared a written statement for

Patti’s signature. The written statement adds more detail to

Patti’s oral statement, detail that Detective Winn was aware

of from the police investigation thus far. Notably, the

written statement mentioned that the fourth, unnamed person

acted as a lookout for Mellen, Tom, and Landrum. Patti’s

written statement also added that Landrum set Daly on fire

again in San Pedro, and that Patti and Tom had left Daly’s

body near a trash can in an alley with a chain link fence

because “only Mexicans live there and they won[’]t say

anything”—details that did not come from Patti’s oral

statement. The written statement also added that Mellen and

Landrum dumped the body in San Pedro around “8:30 or

9:00 P.M.,” when Patti previously told Detective Winn only

that Landrum and Tom started beating Daly “during the

daytime.”

Relying on Patti’s written statement, Detective Winn

presented the case against Mellen to district attorney Steven

Schreiner, who, in turn, filed one count of first-degree

murder against Mellen. 8 Mellen was arrested on August 25,

1997, and in an interview with Detective Winn, insisted that

she had nothing to do with Daly’s murder. Mellen told

Detective Winn that she and Cory Valdez, Daly’s then-

girlfriend, had learned from a woman named Ginger

7

The transcript of Patti’s oral statement is undated. It is therefore

unclear whether Patti’s defense counsel had the benefit of the transcript

at Patti’s criminal trial or whether Patti’s habeas counsel transcribed the

oral statement as part of the habeas proceedings.

8

The district attorney’s office filed separate murder charges against

Landrum and Monllor, but never filed charges against Tom or Alvarez.

In fact, Alvarez told Innocence Matters investigators that he was never

even questioned about the Daly murder.

10 MELLEN V. WINN

Wilborn that Landrum, Monllor, and Alvarez had murdered

Daly, and had wrapped his body in a blanket to transport him

to San Pedro. Mellen also told Detective Winn that she had

returned to the Mellen Patch with her children on the evening

of the murder, but that she had stayed in the area for only ten

to fifteen minutes. Mellen said that while she was there, she

saw Daly alive, and he must have been murdered after she

left. Detective Winn told Mellen that she did not believe her.

The preliminary hearing in Mellen’s criminal case,

where she was charged alongside co-defendants Monllor and

Landrum, took place on November 13, 1997. Mellen was

represented by Lewis Notrica, a private family law attorney

whom Mellen had previously asked to handle her divorce.

The government was represented by Valerie Rose, a deputy

district attorney who had prosecuted cases since 1991.

Patti testified at the preliminary hearing. She again said

that Mellen had confessed her involvement in Daly’s murder

to Patti at the Travelodge motel, reiterating that Mellen and

Tom recruited Landrum from next door to beat up Daly for

stealing Mellen’s things. This time, however, when defense

counsel questioned Patti about the involvement of a fourth

person, Patti insisted that the fourth person had only banged

on the window and said “shut the fuck up,” but otherwise

had nothing to do with the murder. When defense counsel

pressed Patti about the inconsistencies between her written

statement and her preliminary hearing testimony as to this

fourth person, Patti said that Detective Winn made up the

details of the story. Patti testified that she told Detective

Winn that she was “not signing” the written statement

because Detective Winn “wrote something to the [effect]

that the person in jail was a lookout” when that was not true.

Patti also testified that Detective Winn told her that “the

person was in jail and she wanted him to be blamed for it,

MELLEN V. WINN 11

and he didn’t do it, and he wasn’t around when it happened.”

Patti said that Detective Winn was “pissed off” when Patti

told her “four or five times” that the written statement did

not reflect what Mellen had said, but Patti ultimately signed

it because she was pressed to get to the airport.

This is the most notable inconsistency between Patti’s

earlier oral and written statements and her preliminary

hearing testimony, but there are others. In her oral

statement, Patti said that she called Mellen to buy speed, and

that the “motel receipt” would show the phone number to

which the call had been placed. Patti initially testified that

she had “dial privileges” from her room, but when pressed

by Mellen’s counsel about how she paid for the phone call,

Patti changed her story: “Actually,” she testified, “we didn’t

call from the room. We called from downstairs at the pay

phone, because it was a pager, and my dad paid for the calls

and I didn’t want him to find out I was paging people for

speed.” And for the first time at the preliminary hearing,

Patti testified that she was on speed the night that she talked

to Mellen at the hotel. Patti’s preliminary hearing testimony

did not mention whether anyone else had been present with

her at the hotel, whether Daly’s attackers had used a hammer

or a knife, or any other detail about how they had allegedly

kept Daly quiet or transported his body to San Pedro.

B. Pre-Trial Matters

As Mellen’s case approached trial in May 1998, several

events, in addition to the alleged telephone call between

Laura Patti and Detective Winn, shed further light on Patti’s

unreliability as the star government witness.

In a letter dated February 25, 1998, Patti wrote to District

Attorney Rose explaining that she could not return to

California to testify at Mellen’s murder trial because Patti’s

12 MELLEN V. WINN

sister, Laura, had threatened to arrest her. Patti sent the letter

to the prosecutor while living with her boyfriend in

Washington State. In the letter, Patti said that she was

writing to notify District Attorney Rose that she had

outstanding warrants for traffic tickets and for an incident

where she used her “sister Serina Patti [sic] name after [she]

hit a women’s car in a [sic] accident.” Patti said that her

sister, Laura, a Torrance police officer, had warned Patti that

if she returned to California she would be arrested on those

warrants. Patti also recounted numerous incidents where she

had lied to police to evade arrest warrants, had impersonated

her sister, Serina Patti, and had otherwise interacted with law

enforcement. She asked the district attorney to “contact the

Torrance D.A.” to get the ticket “dismissed in the interest of

justice.”

The district court found that Patti’s February 1998 letter

was placed in the “murder book,” a dossier that was

supposed to contain all of the investigatory information

about the Daly murder and which was turned over to defense

counsel on October 1, 1997. But the record demonstrates

that the district attorney’s office received Patti’s letter after

the murder book had already been turned over to the defense,

and it is not clear from the record that defense counsel had

access to the letter. District Attorney Rose’s own declaration

suggests that she would not have turned over the letter

because she was “unaware of any legal authority which

provided that sibling rivalry . . . was Brady evidence.”

Rose replied to Patti’s letter on April 16, 1998, two and

a half weeks before Mellen’s criminal trial would start on

May 4, 1998, in a letter intended “to memorialize [a]

telephone conversation regarding [Patti’s February 1998]

letter.” It advised “[n]either your sister nor any other officer

can serve you or arrest you for anything that happened in this

MELLEN V. WINN 13

state prior to the date that you came into . . . the state in order

to comply with the subpoena.” The letter then concluded, “I

will send a copy of this letter to your sister, as well as to the

defense attorneys on the criminal case of People v. Monllor,

Mellen & Landrum.”

Patti’s credibility was also at issue in a hearing on the

morning before trial, where the parties argued pending

motions in limine. District Attorney Rose asserted that it

would be inappropriate “to ask about [Patti’s] arrests and a

misdemeanor.” Patti had two prior misdemeanor

convictions for forgery and for harassment of her sister

Laura, and Patti had numerous prior arrests for drug-related

charges. The trial court opined that Patti’s prior

“misdemeanor conviction[s]” and arrests were “not

admissible,” and Notrica, Mellen’s defense counsel, replied

“I [have] no quarrel with that.”

Rose then discussed Patti’s testimony that she had

stabbed Mellen’s prior boyfriend because he had grabbed her

breast, and an allegation that Patti had stolen Mellen’s

brother’s vehicle because Mellen’s brother killed one of

Patti’s dogs. As to the first incident, Notrica replied, “I don’t

even know where I got the information.” When the trial

court asked whether Notrica intended to use the information

at trial, he said “no.” As to the second incident, Notrica said,

“I don’t have [Mellen’s brother] under subpoena,” so

“[testimony about] it is not going to happen.”

The parties also discussed whether Patti was a paid

informant. Notrica had suggested to the district attorney that

Patti might be a paid informant because she “appears to have

a lot of arrests, but no convictions.” In reply, district

attorney Rose said that she had “no knowledge of such,” and

she argued that raising Patti’s potential role as a paid

informant would be “inappropriate” at trial. At the time,

14 MELLEN V. WINN

Patti had, in fact, enrolled as a paid informant with the El

Segundo and Redondo Beach police departments, and the

Torrance Police Department deemed Patti an “unreliable

informant” in 1993 for providing exaggerated and untruthful

information to law-enforcement officers. The court,

however, agreed with the prosecutor, concluding that

“absent some good faith basis,” it would not be

“appropriate” for the defense to ask whether Patti had

worked as a paid informant. The case then proceeded to trial.

C. The Trial

Opening statements began on May 4, 1998. There, the

prosecution offered its theory of the case, which relied

entirely on June Patti’s preliminary hearing testimony. The

prosecution suggested that, on the night of Daly’s murder,

Mellen instructed Tom and Landrum to kill Daly, who had

previously dated Mellen, because Daly had stolen from

Mellen’s mother’s house. The district attorney stated that

Mellen and Tom had returned to Mellen’s mother’s

abandoned house on the night of the murder and found Daly

sleeping there. This allegedly made Tom angry and led him

to convince a neighbor, Landrum, to help beat up Daly in

exchange for a “quarter ounce of speed.” The district

attorney told the jury that Mellen gagged and kicked Daly,

and, after he was set on fire, drove his body to San Pedro and

dumped it in an alley.

Patti took the witness stand on May 6, 1998. At trial,

Patti changed her testimony significantly from her

preliminary hearing testimony, offering an entirely new

motive for Daly’s murder and details that she had never

before offered to anyone. Patti testified that, on that night at

the Travelodge motel, Mellen confessed that she had been

giving oral sex to Daly when Tom “kind of caught her with

her pants down.” Patti testified that Daly and Mellen had a

MELLEN V. WINN 15

child together and that Mellen “loved” Daly even though

Daly had been stealing from Mellen, and Mellen had started

a new relationship with Tom. She testified that Tom became

angry when he figured out what had happened, and started

beating Daly on the head with a hammer that Tom had taken

from Daly’s bicycle.

Patti then testified that “somebody from next-door”

(Landrum) came over to help Tom beat up Daly. Tom

allegedly convinced Landrum to help him beat up Daly and

Mellen in exchange for “a quarter ounce of dope.” Patti

testified that Tom left, and Landrum continued to beat up

Daly. When Tom returned, Mellen gagged Daly with his

own bandana by stuffing it down his throat and supergluing

and taping his mouth shut. Patti said that, after hearing

Mellen’s confession, she avowed to tell her sister, who was

a Torrance police officer.

At the end of Patti’s direct examination and, evidently

recognizing that Patti’s testimony contradicted much of her

prior testimony—and the prosecution’s opening statement—

Rose prompted Patti to admit that she had not told the whole

truth at the preliminary hearing. Patti said that she lied at the

preliminary hearing because, she said, “I don’t want Susie

[Mellen] to go to jail.” Patti also admitted that she had never

previously told anyone that Mellen had given Daly oral sex

on the night of the murder:

Q. Did you indicate anything about the

motivation behind the killing, Tom

walking in on this sexual act?

A. Did I tell anybody about that before?

Absolutely not. It was something she told

me in private.

16 MELLEN V. WINN

The prosecutor later returned to this topic:

Q. Why, today, are you telling us this

additional information regarding motive,

regarding the additional activity?

A. Because since I have been here for the last

two days, I heard that Susan [Mellen] has

had people come and try to lie against my

character; and one of her brothers, which

I don’t know, said he killed a dog of mine.

That is the law. If she is going to lie

against me, I am going to tell the truth of

what she said.

The prosecutor also asked Patti about the super glue, another

fact that Patti had never previously disclosed:

Q. You had indicated — was there any

changes in your testimony regarding the

movement of the body or the movement

of Rick [Daly] to San Pedro?

A. No.

Q. Now, you had indicated something about

the super glue on the mouth.

A. Yes.

Q. Was she — did she do that or did

[Landrum] do that, or did they both do it

together?

MELLEN V. WINN 17

A. She did that.

After this questioning, Mellen’s counsel cross-examined

Patti. Notrica pointed out that Patti’s testimony was

inconsistent with her testimony at the preliminary hearing:

Q. You have gone out of your way to

embellish your testimony, haven’t you?

A. No, I have not.

Q. Well, you were under oath when you

testified in November of 1997, weren’t

you?

A. I told the truth. I just didn’t tell the

complete truth.

Q. You hid some facts from Ms. Mellen, as

well as her counsel.

A. No, I hid the facts from the police that

Ms. Mellen had told me because I didn’t

want to crucify her.

...

Q. Ms. Patti, you said that Susan [Mellen]

and Rick [Daly] were engaged in a sex act

in their house when Tom walked in.

A. That is what she told me.

Q. You never testified to that before, though.

18 MELLEN V. WINN

A. I didn’t want people to know she was a

cock-sucker. No, I did not. It was a

private conversation between her and I.

Notrica also pointed out that Patti had not told the police the

fact about the “super glue.” On cross-examination, the

defense asked:

Q. Are we getting the whole truth today?

A. Probably not because I don’t want to

crucify her. I told you what you need to

know.

The day after cross-examination, the prosecution re-

opened Patti’s direct examination. Patti then testified that

she saw Mellen driving Kimball’s green BMW away from

the Travelodge motel on August 13, 1997. She further

testified that Mellen had told her that she used Kimball’s car

to drive Daly’s body to San Pedro. When the prosecutor

asked Patti why she had not offered this testimony the day

before during her first direct examination, Patti said, “I

wasn’t asked.” During her second cross-examination, Patti

admitted that she had “never discussed” Mellen driving

Kimball’s car “with anybody until yesterday.”

Detective Winn took the stand days after Patti’s

testimony. Detective Winn admitted that Patti had not

mentioned the “sexual contact” between Mellen and Daly

until the other day in court.

The only other rebuttal of Patti came from Mellen

herself. Mellen testified that Patti was “a lier [sic],” “a

snitch,” “a thief,” and “something I would never want to call

my friend.” Mellen testified that Patti had called her at

2 A.M. one morning at the beginning of August, but that

MELLEN V. WINN 19

Mellen had told her “don’t call back here” and had hung up

without finding out why Patti had called. Mellen also stated

that she never went to the Travelodge motel to meet Patti.

At closing argument, defense counsel argued that Patti

was a liar and framed the trial as a contest between the

credibility of June Patti and Susan Mellen. He said:

But what she said was full of misstatements,

and she said them under oath. And she was

quick to tell this court, this jury, that: when I

testified the first time, I didn’t tell the whole

truth.

Why didn’t she tell the whole truth? Well, I

was trying — I felt sorry for Susan. Well,

what she said was enough to, quote, hang her

anyway. So she came back the second time

and the next day which is the third time and

embellished her statement.

Now, she is telling the whole truth. She had

to get everything out. Why couldn’t she get

everything out the first time when we had a

chance to cross-examine her. I can’t answer

that question. I’m just saying I believe she

lied for whatever reason and she lied so well

that Ms. Mellen was arrested for homicide.

...

So the issues are simple. I submit,

respectfully, that it’s between June Patti and

Susan Mellen.

20 MELLEN V. WINN

The jury returned a guilty verdict, and the judge

sentenced Mellen to life imprisonment without the

possibility of parole on June 5, 1998. Speaking at her

sentencing hearing, Mellen said, “I don’t understand why

I’m being put in the fire, why this woman lied and told the

things that she said that are so evil. I’m totally innocent. . . .

With God’s hands upon me now, I’m innocent.”

D. Habeas Proceedings

Nearly two decades later, Mellen’s case came to the

attention of Innocence Matters, a non-profit legal

organization whose mission is to secure habeas relief for

people with valid innocence claims. As part of its

investigation, Innocence Matters spoke with Laura Patti,

who told them that she had spoken with Detective Winn in

advance of Mellen’s trial and had then shared her belief that

her sister was not to be trusted. Laura also admitted that she

had never been present for one of her sister’s lies to law

enforcement, and had no personal information about whether

her sister lied as part of the Daly murder investigation. And

she offered her own belief that Detective Winn reasonably

relied on June Patti’s statements because, she remembered,

Detective Winn had told her that her sister offered details

about the murder that were not publicly available. After

Innocence Matters contacted her, Laura called Detective

Winn to let her know that she had been contacted as part of

Mellen’s habeas proceedings.

In addition to speaking with Laura Patti, Innocence

Matters contacted numerous others close to the

investigation, including Chad Landrum and Santo Alvarez,

who confessed to the murder and said that Mellen had

nothing to do with it. Armed with this information and

testimony from other witnesses, Innocence Matters filed a

MELLEN V. WINN 21

habeas petition on Mellen’s behalf, which the state court

granted in October 2014.

II.

We now review this evidence to determine whether

Detective Winn violated Brady/Giglio by failing to disclose

Laura’s statements that her sister, June Patti, was “the

biggest liar” that she had “ever met,” and that she did not

“believe anything [Patti] says.”

A. Brady/Giglio Violation

The elements of a civil Brady/Giglio claim against a

police officer are: (1) the officer suppressed evidence that

was favorable to the accused from the prosecutor and the

defense, (2) the suppression harmed the accused, and (3) the

officer “acted with deliberate indifference to or reckless

disregard for an accused’s rights or for the truth in

withholding evidence from prosecutors.” Tennison v. City

& Cty. of San Francisco, 570 F.3d 1078, 1087, 1089 (9th

Cir. 2009). Although Detective Winn now disputes that she

spoke with Laura Patti before Mellen’s trial, she concedes

that, if the conversation took place, Laura’s statements were

favorable to Mellen, and were never shared with the

prosecutor or the defense. The only questions the parties

debate are whether Laura’s statements were material and

whether Detective Winn was deliberately indifferent not to

disclose them. See Youngblood v. West Virginia, 547 U.S.

867, 869–70 (2006) (per curiam) (“Brady suppression

occurs when the government fails to turn over even evidence

that is known only to police investigators and not to the

prosecutor.” (citation and quotation marks omitted)); United

States v. Bagley, 473 U.S. 667, 676 (1985) (“Impeachment

evidence . . . as well as exculpatory evidence, falls within the

Brady rule.”).

22 MELLEN V. WINN

1. Materiality

We conclude that Laura’s statement was material Brady

evidence as a matter of law. Suppressed evidence is material

if “the favorable evidence could reasonably be taken to put

the whole case in such a different light as to undermine

confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419,

435 (1995). We have recognized that “[i]mpeachment

evidence is especially likely to be material when it impugns

the testimony of a witness who is critical to the prosecution’s

case.” Silva v. Brown, 416 F.3d 980, 987 (9th Cir. 2005)

(collecting cases). Indeed, we have concluded that “[t]he

recurrent theme . . . is that where the prosecution fails to

disclose evidence . . . that would be valuable in impeaching

a witness whose testimony is central to the prosecution’s

case, it violates the due process rights of the accused and

undermines confidence in the outcome of the trial.” Horton

v. Mayle, 408 F.3d 570, 581 (9th Cir. 2005).

No one disputes here that June Patti’s testimony was

crucial to the district attorney’s prosecution of Mellen for

murder. Although the government offered ten witnesses in

its case-in-chief, 9 the prosecutor recognized even at the time

that “the bulk of the evidence” in the government’s case

9

The witnesses were (1) Jeremy Duncan, (2) June Patti,

(3) Ogbonna Chinwaah, (4) Robert Marti, (5) Kenneth Whitehead,

(6) Erin Riley, (7) Robert Monson, (8) Felicia Mena, (9) Talbot Terrell,

and (10) Marcella Winn. Chinwaah was a deputy medical examiner in

the county coroner’s office; Riley and Monson were criminalists with

the LAPD’s serology unit; Duncan, Marti, Whitehead, Terrell, and Winn

were homicide detectives and police officers; and Mena testified that on

the night of the murder she observed Landrum, accompanied by

unknown individuals, drive away from the Mellen Patch in Scott

Kimball’s BMW, carrying a heavy load in the trunk, and return about an

hour later, without the heavy load, accompanied by one other man.

MELLEN V. WINN 23

would come from “a conversation between [Mellen] and a

People’s witness by the name of June Patti.” The district

attorney’s word about the “likely damage” of the suppressed

evidence is particularly strong evidence that the testimony

was material. Kyles, 514 U.S. at 444; see Silva, 416 F.3d at

990 (“The prosecutor’s actions can speak as loud as his

words.”). And the prosecutor’s assessment has been

confirmed many times over. In habeas proceedings, the state

court observed that Patti’s testimony was “the only evidence

of Ms. Mellen’s involvement in this crime.” And at oral

argument in this appeal, Detective Winn conceded that,

without Patti’s trial testimony, there “would not have been a

conviction.” Oral Argument at 13:00 (“We’re not disputing

the fact that her testimony is probably responsible for the

conviction.”).

The issue of Patti’s credibility is made all the more

important because Patti testified to what amounted to a

confession, to which she claimed to be the only witness. As

the Supreme Court has noted, “A confession is like no other

evidence. Indeed, ‘the defendant’s own confession is

probably the most probative and damaging evidence that can

be admitted against him.’” Arizona v. Fulminante, 499 U.S.

279, 296 (1991) (quoting Bruton v. United States, 391 U.S.

123, 139 (1968) (White, J., dissenting)). Patti provided the

only “direct” evidence that connected Mellen to the crime.

No fingerprints, DNA evidence, or eyewitness testimony

placed Mellen at the scene. And because Patti and Mellen

were the only people in the room at the time of the alleged

confession, the trial turned, as Mellen’s defense counsel put

it at closing argument, on a decision between Patti’s word

and Mellen’s.

Detective Winn nonetheless contends that Laura’s

statements were not material because Mellen’s defense

24 MELLEN V. WINN

counsel had access to other more probative evidence of

Patti’s credibility. But we have rejected this argument

before. “[T]he government cannot satisfy its Brady

obligation to disclose exculpatory evidence by making some

evidence available and claiming the rest would be

cumulative. Rather, the government is obligated to disclose

all material information casting a shadow on a government

witness’s credibility.” Carriger v. Stewart, 132 F.3d 463,

481–82 (9th Cir. 1997) (en banc) (citation and internal

quotation marks omitted) (emphasis in original). “[A]

defendant’s conviction in spite of his attempt at impeaching

a key government witness demonstrates only the inadequacy

of the impeachment material actually presented, not that of

the suppressed impeachment material; in light of the failure

of the impeachment attempt at trial, the suppressed

impeachment material may ‘take[] on an even greater

importance.’” Silva, 416 F.3d at 989 (quoting Benn v.

Lambert, 283 F.3d 1040, 1055 (9th Cir. 2002)) (alteration in

Silva).

The undisclosed statements were not cumulative of the

other impeachment evidence presented at trial; they were of

a different kind. See United States v. Collicott, 92 F.3d 973,

980 n.5 (9th Cir. 1996) (listing five types of impeachment

evidence); see also Gonzalez v. Wong, 667 F.3d 965, 984

(9th Cir. 2011) (“Where the withheld evidence opens up new

avenues for impeachment, it can be argued that it is still

material.”). The possibility for the defense to use statements

from Laura—an immediate family member, a police officer,

and a source unaffiliated with the drug culture of which both

Mellen and Patti were a part—“would have provided the

defense with a new and different ground of impeachment.”

Benn, 283 F.3d at 1056.

MELLEN V. WINN 25

At trial, the best impeachment evidence that the defense

could offer were Patti’s own statements that she had lied to

law-enforcement officers in the past, but even those

statements did not have the same probative value as the

possibility of hearing from a law-enforcement officer and

Patti’s immediate family member, who grew up with Patti

and could testify to a lifetime, and a lifestyle, of habitual lies.

The prosecution’s reopening of direct testimony gave Patti

the chance to explain away, with success, the inconsistencies

in her prior testimony as attempts to protect Mellen’s

reputation. And doing so, Patti may have even bolstered her

own credibility further by also demonstrating a willingness

to admit mistakes. See 3 Christopher B. Mueller & Laird C.

Kirkpatrick, Federal Evidence § 6:102 (4th ed. 2018)

(explaining how witnesses may repair credibility by

explaining prior inconsistent statements). As we have

recognized before, “[i]t is one thing for a witness to admit

that he could lie; everyone can lie”; it is a different thing

altogether when hard evidence, which cannot so easily be

explained away, provides proof of past lies, deception, and

manipulation. Gonzalez, 667 F.3d at 985.

Nor would Laura’s statements have been duplicative of

evidence that the defense possessed about Patti’s prior

misdemeanor convictions, prior drug use, or rumors that

Patti had stolen Mellen’s brother’s car or stabbed Mellen’s

ex-boyfriend, all of which the prosecution discussed with

defense counsel on the morning of the first day of trial. The

defense could not impeach Mellen with her prior

misdemeanor convictions because the state trial court

determined that the convictions were not admissible

impeachment evidence under the California Evidence

26 MELLEN V. WINN

Code. 10 And we have recognized that evidence of prior drug

use is not probative of a witness’s credibility, absent other

evidence linking the drug use to a “motivation, bias, or

interest in testifying” or indicating that the witness was

“intoxicated while testifying.” United States v. Kizer,

569 F.2d 504, 505–06 (9th Cir. 1978). Nor were the rumors

about Patti’s interactions with Mellen’s close associates

probative of Patti’s truthfulness—they reflected Patti’s lack

of respect for persons and property, but not Patti’s reputation

for lying. At best, the defense could have used Patti’s feud

with the Mellens to suggest a motive for Patti to lie against

Mellen, but even that evidence would have been of minimal

probative value, given that Patti’s fights were limited to

incidents involving Mellen’s brother and ex-boyfriend, not

Mellen herself. At worst too, the prosecution could have

used the rumors to further link Patti and Mellen to each

other, and to a drug culture that impugned both women.

Although Mellen later learned through her own

investigation that Patti had been a paid informant for the El

Segundo, Redondo Beach, and Torrance police departments,

the prosecutor disclaimed any knowledge of Patti’s role as a

paid informant on the first morning of trial, so this evidence

was never introduced. We think it likely that the government

violated Brady a second time by failing to obtain and review

Patti’s status as an informant with other local law-

enforcement agencies prior to trial, particularly when Patti

was undisputedly the prosecution’s star witness; Patti had

10

The “Truth in Evidence” amendment to the California

Constitution, Cal. Const., art. I, § 28, subd. (d), abrogated the felony-

convictions-only rule in criminal cases and gave criminal courts “broad

discretion to admit or exclude acts of dishonesty or moral turpitude

relevant to impeachment.” See People v. Wheeler, 841 P.2d 938, 939

(Cal. 1992). Defense counsel, however, failed to protest on this ground.

MELLEN V. WINN 27

previously disclosed to Detective Winn that she had helped

another detective with a different homicide investigation;

and defense counsel specifically questioned whether Patti

was a paid informant. See Carriger, 132 F.3d at 479–80

(“Because the prosecution is in the unique position to obtain

information known to other agents of the government, it may

not be excused from disclosing what it does not know but

could have learned.”). At a minimum, however, that Patti

was a paid informant does not undermine the materiality of

Laura’s statements to Detective Winn, which the

government also did not make available for Mellen’s

defense.

The only extrinsic evidence attacking Patti’s character

for truthfulness at trial was Mellen’s own testimony that

Patti was a liar. But, as the prosecution pointed out at trial,

Mellen’s obvious interest in the outcome of her case severely

undercut the force of her testimony. See Tennison, 570 F.3d

at 1091 (“[T]he availability of particular statements through

the defendant himself does not negate the government’s duty

to disclose.” (citation omitted)); see also Bailey v. Rae,

339 F.3d 1107, 1116 (9th Cir. 2003) (“Independent

corroboration of the defense’s theory of the case by a neutral

and disinterested witness is not cumulative of testimony by

interested witnesses.” (quoting Boss v. Pierce, 263 F.3d 734,

735 (7th Cir. 2001)).

Had the defense known to call Laura as a witness,

Laura’s trial testimony could have highlighted the evidence

that demonstrated that Patti was not testifying truthfully.

Had Laura testified to Patti’s reputation as a liar, the jury

would have had an opportunity to evaluate Patti’s prior

inconsistent statements in a different light, and likely would

have given those prior inconsistent statements more weight,

particularly given Laura’s profession and Laura and Patti’s

28 MELLEN V. WINN

shared family history. Moreover, as illustrated by Mellen’s

habeas proceedings, Laura was the gateway to a whole host

of other information about Patti’s unreliability as a paid

informant and her many, untruthful contacts with law

enforcement. Mellen argued to the district court that, had

the defense had the opportunity to question Laura, it might

have unraveled earlier that Patti had been an unreliable

informant for the Torrance police department, and the

defense could have called a number of other witnesses,

including Torrance police officers, who would have testified

to Patti’s reputation as a liar. The district court dismissed

Mellen’s arguments, suggesting that they amounted to no

more than a “nursery rhyme” that schoolchildren use to teach

themselves that “a kingdom might be lost ‘all for the want of

a horseshoe nail.’” We do not find Mellen’s arguments so

fanciful, and conclude that the district court was wrong to

dismiss them.

Detective Winn further contends that because Mellen’s

defense counsel knew that Patti had a sister who was a

Torrance police officer and had access to much of the other

evidence that could have been used to impeach Patti, this

case is analogous to Raley v. Ylst, 470 F.3d 792, 804 (9th

Cir. 2006), Rhoades v. Henry, 598 F.3d 495, 502 (9th Cir.

2010), and Cunningham v. Wong, 704 F.3d 1143, 1154 (9th

Cir. 2013), where we concluded that a Brady/Giglio

violation could not lie where the accused is aware of the

essential facts to be established by the evidence. But Raley,

Rhoades, and Cunningham are readily distinguishable. In

Raley, the evidence suppressed was the defendant’s own

medical records, 470 F.3d at 803–04; in Rhoades, the

evidence was the defendant’s own statement that he invoked

his right to remain silent, 598 F.3d at 502; and, in

Cunningham, the evidence was the victim’s medical records

and autopsy report, 704 F.3d at 1154.

MELLEN V. WINN 29

In each of those cases, we noted that the defendant was

aware of the “existence of the records he claims were

withheld,” id. (quoting Raley, 470 F.3d at 804), because the

defendant either participated personally in the creation of the

records or the records were disputed in the case, see id.

Thus, it was logical for us to conclude that the defendant

“could have sought the documents through discovery.” Id.

(quoting Raley, 470 F.3d at 804). But Laura’s statement is

different than the evidence withheld in Raley, Rhoades, and

Cunningham because the defense did not know that the

statement existed. At most, the defense knew that Patti and

her sister were feuding; it had no reason to know that the

sisters’ feud was fueled by Patti’s reputation as a liar. Based

on the limited evidence available to the defense about Patti’s

relationship with Laura, it was not reasonable to expect that

the defense would have requested to depose Laura or would

even have prioritized speaking with her without knowing

about the statements that Laura made to Detective Winn.

This case is also unlike Turner v. United States, where

the Supreme Court last year concluded that the withheld

evidence was not Brady evidence because it was “too little,

too weak, or too distant from the main evidentiary points.”

137 S. Ct. at 1894. Turner involved the brutal rape and

murder of Catherine Fuller, in what the government believed

had been a group attack. Id. at 1889. The withheld evidence

in Turner was a witness’s statement that he had seen two

men, James McMillan and Gerald Merkerson, run into the

alley where Fuller was murdered and stop near the garage

where she had allegedly been raped. Id. at 1891. Turner’s

habeas counsel argued that this statement was material

because after Fuller’s murder, McMillan assaulted and raped

two other women of comparable age in the same

neighborhood, and the suppressed statement suggested that

McMillan was returning to the scene of the crime to cover

30 MELLEN V. WINN

his tracks. Id. at 1897 (Kagan, J., dissenting). The Court

found the argument unpersuasive, relying on the testimony

of seven other government witnesses who affirmed that

Fuller had been killed in a group attack, and reasoning that,

given the strength of the evidence presented to the jury, the

withheld evidence was not sufficient to undermine

confidence in the verdict. Id. at 1894.

Because the evidence supporting Mellen’s conviction

was far less extensive than the seven witnesses that the

government presented in Turner, this case is closer to Kyles

and Carriger, than it is to Turner. There is no dispute here

that Patti was the prosecution’s star witness and the only

witness that linked Mellen to Richard Daly’s murder. The

LAPD and Los Angeles District Attorney concurred in

Mellen’s habeas petition, and Mellen has been exonerated of

any involvement in the crime. Kyles considered a similar

fact pattern, where the court recognized that “‘the essence of

the State’s case’ was the testimony of eyewitnesses,” two in

particular whose credibility could have been “substantially

reduced or destroyed” by the withheld evidence. 514 U.S.

at 441. The facts were even more dramatic in Carriger,

where the sole witness to testify to Carriger’s confession was

a known habitual liar who himself later confessed to

committing the murder for which Carriger was charged.

132 F.3d at 466–68. We are therefore convinced that it is

Kyles and Carriger, not Turner, that dictate the outcome

here.

In sum, had the jury learned that Laura Patti—the star

witness’s own sister and a law-enforcement officer—

believed that June Patti was “the biggest liar” she had ever

met, it would have put the government’s critical witness in a

new light. Had this evidence been turned over to the defense

or pursued by either side, the case may never have even gone

MELLEN V. WINN 31

to the jury. Given that the prosecution was so heavily

dependent on June Patti’s testimony, we conclude that “there

is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would

have been different.” Kyles, 514 U.S. at 433 (citations

omitted). Laura’s statements, if made, were undoubtedly

material to Mellen’s conviction for murder.

2. Deliberate Indifference

We are also convinced that the evidence that Mellen

presented at summary judgment raised a genuine dispute of

material fact as to whether Detective Winn acted with

deliberate indifference to or reckless disregard for Mellen’s

rights and to the truth by withholding Laura’s statement from

prosecutors. See Tennison, 570 F.3d at 1089; see also Tatum

v. Moody, 768 F.3d 806, 821 (9th Cir. 2014) (quoting Gantt

v. City of Los Angeles, 717 F.3d 702, 708 (9th Cir. 2013), for

the deliberate indifference standard). Whether a defendant

acted with deliberate indifference or reckless disregard “is a

question of fact subject to demonstration in the usual ways,

including inference from circumstantial evidence.” Lemire

v. Cal. Dep’t of Corrs. & Rehab., 726 F.3d 1062, 1078 (9th

Cir. 2013) (citation omitted). Summary judgment should not

have been granted unless the district court concluded that

“no reasonable jury viewing the summary judgment record

could find by a preponderance of the evidence that the

plaintiff is entitled to a favorable verdict.” George v.

Edholm, 752 F.3d 1206, 1214 (9th Cir. 2014) (citation and

internal quotation marks omitted).

The undisputed evidence demonstrates that Detective

Winn knew that Patti’s testimony was critical to Mellen’s

prosecution. Patti was the only witness to incriminate

Mellen in the murder. And, as the lead detective who had

taken Patti’s initial oral and written statements, Detective

32 MELLEN V. WINN

Winn was aware of the subject of Patti’s statements, where

Patti claimed to be the only witness to Mellen’s confession.

As the lead investigator, Detective Winn also was present

during trial, where Patti’s credibility was a central issue;

Patti’s many prior inconsistent statements even forced the

prosecution to put Detective Winn on the stand to clarify the

testimony. So, Detective Winn no doubt knew that Patti’s

credibility was of utmost importance.

That the withheld statements came from a particularly

credible source makes Detective Winn’s failure to disclose

them to the prosecutor all the more culpable. Laura Patti was

not only an immediate relative who had grown up with June

Patti, she was also a law-enforcement officer, aligned with

the values of trustworthiness and dependability typically

associated with that profession. Because of this, Laura’s

statements should have carried even more weight with

Detective Winn. From the defense’s perspective then, a

juror could reasonably find that Detective Winn was reckless

in withholding a fellow law-enforcement officer’s opinion,

even if that same juror would conclude that withholding a

layperson’s opinion was no more than negligent.

Although Detective Winn now disputes that she spoke

with Laura Patti before trial, whether this conversation took

place should have been a factual question for the jury to

resolve at the § 1983 trial; it is not a question that the district

court could resolve at summary judgment. If Laura’s

statements are to be believed, as they must at summary

judgment, then Detective Winn called Laura to investigate

Patti’s credibility before trial. Laura stated in her deposition

that Detective Winn did not inquire further when Laura told

Detective Winn that Patti was a habitual liar, and it is

undisputed that Detective Winn never communicated

Laura’s statements to the district attorney. A reasonable

MELLEN V. WINN 33

juror could conclude from these facts that Detective Winn

investigated Patti’s credibility and communicated only

evidence that favored the government, while willingly

suppressing unfavorable evidence. In fact, Detective Winn’s

decision not to inquire further into Laura’s claims is the

hallmark of a “deliberate action[] to avoid confirming

suspicions”—an action tantamount to knowledge under the

law. See United States v. Heredia, 483 F.3d 913, 917 (9th

Cir. 2007) (en banc); see also United States v. Jewell,

532 F.2d 697, 699–700 (9th Cir. 1976) (en banc). These

facts alone, if proven at trial, would have established the

mental state necessary to prove a violation of Mellen’s due

process rights.

But, there is more. At the time of the investigation,

Detective Winn was an experienced detective, who had

participated in a hundred homicide investigations, and who

had the training and experience to know the value of Laura’s

statements. Detective Winn testified in deposition that she

knew she had an obligation “to report and summarize what

each witness said,” and she claimed, based on this

obligation, that if “Laura Patti or anybody told me that June

Patti was not credible or she was a liar, I would have

communicated that to the district attorney’s office.” And

Detective Winn’s own assessment was supported at

summary judgment by Mellen’s police practices expert,

Roger Clark, who explained that, “[a]ny reasonably trained

officer or detective would have vetted the credibility of the

key witness in this case.” Because Detective Winn

acknowledges that she was obligated to disclose Laura’s

statements, if made, and Clark’s report would have

demonstrated that any reasonable police officer would have

done the same, a reasonable jury could conclude that

Detective Winn knowingly suppressed the statements to

secure a conviction.

34 MELLEN V. WINN

Other evidence suggests that Detective Winn bolstered

Patti’s credibility in the early stages of the investigation.

The discrepancies between Patti’s oral statement and the

written statement prepared by Detective Winn suggest that

Detective Winn modified Patti’s written statement to

conform to the physical evidence the police had found and

to feed Patti information that Patti did not originally offer to

investigators. For example, the written statement added that

Daly’s body had been set on fire in San Pedro, a fact that the

coroner’s report had suggested but that Patti had not

mentioned in her initial oral statement. The written

statement also added details about when and where the

perpetrators left Daly’s body in San Pedro that did not appear

in Patti’s oral statement. And, remarkably, even June Patti

questioned the credibility of her own written statement when

she testified at the preliminary hearing that Detective Winn

had forced her to alter the statement to implicate a fourth

person. But no one followed up to investigate these claims. 11

Detective Winn should have known how important these

details were, particularly when she had also collected

information from various other sources that indicated three

other men had committed the crime.

And still other evidence suggests that Detective Winn

would have taken any means necessary to secure Mellen’s

conviction. Mellen’s evidence suggests that Detective Winn

knowingly exceeded the scope of a search warrant for

Kimball’s car; suppressed the content of her conversation

with another detective, Doral Riggs; spoke with a suspect

without counsel present; and failed to investigate other

11

We also question whether LAPD practices at the time, which

allowed detectives to file the written statement in the murder book but to

file the tape recording of the oral statement elsewhere, facilitated these

discrepancies.

MELLEN V. WINN 35

credible witness accounts of Daly’s murder. And Detective

Winn’s willingness to ignore Mellen’s requests for counsel

during her initial interrogation is indicative of the aggressive

police tactics which Detective Winn used to investigate this

case.

That Laura believed that Detective Winn was justified to

proceed with Patti as a witness is beside the point. It is for a

jury to determine whether a reasonable officer in Detective

Winn’s position acted with deliberate indifference to

Mellen’s due process rights, taking into account the

seriousness of the charges levied against Mellen, what was

known to Detective Winn at the time, and evidence about

what a reasonable police officer would do in the same

position.

We conclude that this evidence raised a genuine dispute

of material fact that Detective Winn acted with deliberate

indifference or reckless disregard of Mellen’s due process

rights when she failed to disclose Laura’s statements about

her sister’s reputation for honesty to the prosecutor.

B. Clearly Established Law

We next must decide whether it was clearly established,

in 1997, that police officers had a duty to disclose material

impeachment evidence to prosecutors. This is not an open

question in our Circuit.

In Carrillo v. County of Los Angeles, we concluded that

“[t]he law in 1984 clearly established that police officers

were bound to disclose material, exculpatory evidence.”

798 F.3d 1210, 1219 (9th Cir. 2015). Carrillo cited

approvingly United States v. Butler, 567 F.2d 885 (9th Cir.

1978) (per curiam), an even earlier case that concluded that

police investigators violate Brady when they fail to disclose

36 MELLEN V. WINN

material impeachment evidence to prosecutors. Carrillo,

798 F.3d at 1220 (citing Butler, 567 F.2d at 891); see also

id. at 1222 (“[T]he vast majority of circuits to have

considered the question have adopted the view that police

officers were bound by Brady.”). In Butler, we observed that

“[s]ince the investigative officers are part of the prosecution,

the taint on the trial is no less if they, rather than the

prosecutor, were guilty of nondisclosure.” 567 F.2d at 891.

There, the impeachment evidence was the officers’

assurances to the witness that he would be treated favorably

by the judge if he testified successfully in the criminal trial—

evidence that could have been used to undermine the

credibility of the witness’s testimony. Carrillo also relied

on Kyles, the case where the Supreme Court expressly

extended Brady obligations to police officers. Carrillo,

798 F.3d at 1221 (quoting Kyles, 514 U.S. at 438). Kyles,

decided in 1995, involved police officers’ suppression of

prior inconsistent statements that defense counsel could have

used to impeach key eyewitnesses in a homicide trial.

514 U.S. at 441–54. We noted in Carrillo that “Kyles itself

rejected the state’s argument that ‘it should not be held

accountable under Bagley and Brady for evidence known

only to police investigators and not to the prosecutor.’”

798 F.3d at 1221 (quoting Kyles, 514 U.S. at 438).

Detective Winn offers no meaningful way to distinguish

Carrillo, Butler, and Kyles, and we agree that these cases are

controlling. We therefore reverse the district court’s grant

of summary judgment for Detective Winn on Mellen’s

§ 1983 claim premised on a violation of her due process

rights, and we remand for further proceedings.

C. Familial Association Claims

The district court also granted summary judgment on

Mellen’s children’s claims, which were dependent on

MELLEN V. WINN 37

Mellen’s due process claim. Because Mellen’s children’s

associational claims rise and fall with Mellen’s due process

claim, we must also reverse the grant of summary judgment

on these claims and remand for further proceedings. See

Crowe v. Cty. of San Diego, 608 F.3d 406, 441–42 (9th Cir.

2010) (concluding that unlawful incarceration due to police

misconduct qualifies as “[u]nwarranted state interference

with the relationship between parent and child” and violates

substantive due process (internal quotation marks and

citations omitted)).

D. Police Expert Opinion

The district court abused its discretion in striking the

declaration of police practices expert, Roger Clark. See

Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 460

(9th Cir. 2014) (en banc) (standard of review). The district

court mistakenly concluded that a police practices expert

cannot assist the jury in making the legal determination

about whether an officer’s conduct was “reasonable.” But

Mellen did not offer Clark’s expert declaration for a legal

conclusion that Detective Winn’s conduct was

unreasonable; rather, she offered the report as circumstantial

evidence of Detective Winn’s state of mind and to show that

Detective Winn’s failure to disclose Laura’s statement

deviated far from the norm of what would be expected of a

reasonable police officer in Detective Winn’s position. The

report should have been admitted to assist the trier of fact in

determining whether Detective Winn’s conduct deviated so

far from institutional norms that the jury could conclude that

Detective Winn was reckless or deliberately indifferent to

Mellen’s constitutional rights. See United States v.

Christian, 749 F.3d 806, 811 (9th Cir. 2014); see also

Jimenez v. City of Chicago, 732 F.3d 710, 721–22 (7th Cir.

2013) (admitting police practices expert testimony in a

38 MELLEN V. WINN

§ 1983 civil suit as circumstantial evidence of reckless

misconduct).

III.

Susan Mellen was convicted for murder based solely on

the testimony of June Patti. Mellen’s evidence at summary

judgment raises a genuine dispute of material fact as to

whether Detective Winn knew that June Patti was a liar, and

failed to disclose material, exculpatory, evidence of that fact.

Summary judgment should not have been granted on this

record. Mellen should have the opportunity to prove, after

nearly two decades, whether wrongful conduct played a role

in her conviction, and whether she deserves compensation

for her wrongful imprisonment.

REVERSED and REMANDED.