Petition — Williams v. Hilliard

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IN THE *

MICHAEL RODA’ JR., CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1975

no. 297272 4

JOHN L. WILLIAMS, District Attorney General,

Petitioner,

LILLY MAE ONIE LEE WHITELAW HILLIARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITEC STATES COURT OF APPEALS

FOR THE SiXTH CIRCUIT

DAVID R. FARMER,

Post Office Box No. 726,

Jackson, Tennessee 38301,

Telephone: (901) 427-2648,

Attorney for Petitioner, John L. Williams

WALDROP, HALL, TOMLIN & FARMER

TENNESSEE LAW PRINTERS, P. 0. Box 277, Knoxville, Tennessee. Phone 525-4202

8-19-75-53

a oes cacisnetibas eins

ESE IEEE RS TET SFE A

QUESTIONS PRESENTED .......c.ccccccccccccss

STATUTORY PROVISIONS INVOLVED ...........-

STATEMENT OF THE CAGE 2 occ ccccccccccccess

REASONS FOR GRANTING THE WRIT..........--

SE TTT eee er

APPENDICES

APPENDIX A — Lilly Mae Onie Lee Whitelaw

Hilliard v. John L. Williams and

Donn Clark, No. 74-1356-58,

Opinion, U. S. Court of Appeals,

Sixth Circuit, filed 5/28/75 ......

APPENDIX B — Lilly Mae Onie Lee Whitelaw

Hilliard v. John L. Williams and

Donn Clark, No. 2073, Memoran-

dum Opinion, U. S. District

Court, Western District of Tennes-

see, entered 11/2/73 ........ee0%

APPENDIX C —John '. Williams v. Lilly Mae

Onie Lee Whitelaw Hilliard,

465 F.2d 1212, cert. denied,

409 U.S. 1029, 93 S.Ct. 461,

(6th Cir. 1972), Opinion, U.S.

Court of Appeals, Sixth Circuit,

ere eees

18a

38a

CITATIONS

Alzua v. Johnson,

231 U.S. 106 (1913) ...ccccccccccccsevcccoces 10

American Casualty Co. v. Myrick,

304 F.2d 179 (Sth Cir. 1962) ......-cccccccees 12

Barnes v. Dorsey,

480 F.2d 1057 (8th Cir. 1973) ... eee eeeeeee 7

Barr v. Mateo,

360 U.S. 5664 (1959) .ccccccccccccccccccccccce 11

Bradley v. Fisher,

13 Wall. 33S (UG72) .ccccccccccccecsccccccese 10

Case v. Morrisette,

475 F.2d 1300 (1973) ..cccccccccccccccccccces 9

Dacey v. New York County Lawyers' Assn.,

423 F.2d 188 (1969) ...ccccccccccccccccccceces 8

Fanale v. Sheehy,

385 F.2d 866 (1967) ..ccccccccccccccccccccees 8

Franklin v. Skelly Oil Co.,

141 F.2d 568 (10th Cir. 1962) ...... ce eeeeeeee 12

Gregoire v. Biddle,

177 F.2d 579 (2d Cir. 1949) ..ccccccccccccces 16

Gruja v. U. S. Lines Co.,

SSF PF BO STO CAPSS) cccccccccccccesccdecesess Q

Guerrero v. Barlow,

494 F.2d 1191 (Sth Cir. 1974) ...... ce eeweeee 7

Guerro v. Mulhearn,

498 F .2d 1249 (1974) ..ccccccccccscccccccvees 7

Guzick v. Drebus,

431 F.2d 594 (6th Cir. 1970), cert. denied,

401 U.S. 948, 91 S.Ct. 941, 28 L.Ed.2d 231

I eee ditein aniline niet 10

Hilliard v. State,

Tenn. Crim. App. 4/15/71, unreported ....... 5

Hilliard v. Williams,

465 F.2d 1212 (6th Cir. 1972), cert. denied,

etette PETE dceovcesavdstewoese de bade 5

Holton v. Boman,

493 F.2d 1176 (1974) ........ ub cued Terres 8

Imbler v. Pachtman,

500 F.2d 1301 (9th Cir. 1974), cert. granted,

U.S. , 95 S.Ct. 1324, 43 L.Ed.2d 423

(1975) . pesececosvece PCSROd060006060 ebaeeee 6, 17

Jellison v. Kroger Co.,

eee ame Oe ee Goes EDDA) oc dcccicccocecces 13

John v. Hurt,

489 F .2d 786 (1973) .ccccccceces Séebsccvetsss 8

Kauffman v. Moss,

420 F .2d 1270 (3rd Cir. 1970) ...ccccccccccces 7

Monroe Auto Equipment Co. v. Superior

Industries, Inc. ,

332 F.2d 473 (1964), cert. denied,

379 U.S. 901, 85 S.Ct. 190, 13 L.Ed.2d 175 .. 9

Moore v. Chesapeake & Ohio R. Co.,

340 U.S. 573, 71 S.Ct. 428, 95 L.Ed. 547 (1951) 12

New West Transport Corp. v. S/S Angelina,

410 F .2d 1147 (1969) .....cccccccceee errr TT G

Parke-Davis & Co. v. Stromsodt,

et or n vccecceeueseceeeesceotees 9

Pennsylvania R.R. v. Chamberlain,

288 U.S. 333, 53 S.Ct. 391, 77 L.Ed.819 (1932) 13

Pierson v. Ray,

386 U.S. 547 (1967) .......005. ro:

Scheuer v. Rhodes,

416 U.S. 232, 94S.Ct. 1683, 40 L.Ed.2d 90

(1974) . PeSesesevevoeswevsscececece pescoes ll

Speyer, ee. v. - Humble Oil & Refining Co. ;

403 F.2d 766 (1968), cert. denied,

394 U.S. 1015, 89S Ct. 1634, 23 L.Ed.2d 41 .... 9

iii

Tyler v. Witkowski,

S11 F.2d 449 (1975)... cece cecccccecccccccces 8

U. S. v. 79.95 Acres of Land,

459 F.2d 185 (1972)... cece cece cccccceccecces 4

Wood v. Strickland,

U.S. , 95 8.Ct. 992, 43 L.Ed.2d 214

(1978) .cccccccccccccccccccccccccccceccesess 11

Yaselli v. Goff,

12 F.2d 396 (2d Cir. 1926), affirmed,

275 U.S. 593 (1927) wccccccccccccccccscess 10, 15

STATUTES AND OTHER AUTHORITIES

Statutes:

28 U.S.C., SOC. 1254 (1) wccccccccccccccccccecs 2

42 U.S.C., Sec. 1983 ...ccccccccccccccerces 3, 8, ll

Fed. R. Civ. P. 52(a) ..cccceccccccecececccces 3, 9

Authorities

Prosser, Law of Torts (4th Ed. 1971) ........4.. 11, 12

30Am.Jur. 2d, Evidence, Sec. 1081 .......+-4-- 12

30Am.Jur. 2d, Evidence, Sec. 1121 ......+50e-- 12

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1975

NO.

JOHN L. WILLIAMS, District Attorney General,

Petitioner,

LILLY MAE ONIE LEE WHITELAW HILLIARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The Petitioner, John L. Williams, District Attorney General

for the Twenty-Second Judicial District of Tennessee, re-

spectfully prays that a writ of certiorari issue to review the

judgment and opinion of the United States Court of Appeals

for the Sixth Circuit entered in this proceeding on May 28,

1975.

OPINIONS BELOW

The opinion of the Sixth Circuit, F.2d __, not yet

reported, is reproduced as Appendix A. The memoran-

dum opinion of the United States District Court for the

Western District of Tennessee is not reported and is re-

produced here as Appendix B. The opinion of the Sixth

Circuit in an earlier appeal of one aspect of this litigation,

reported in 465 F.2d 1212, is here reproduced as Appendix

C. Certiorari was denied in that appeal in 409 U.S. 1029,

93 S.Ct. 461, 34 L.Ed.2d 322.

JURISDICTION

Jurisdiction is invoked under 28 U.S.C., Sec. 1254(1).

The judgment of the United States Court of Appeals for the

Sixth Circuit was entered on May 28, 1975. This petition

for certiorari is timely filed within ninety (90) days of that

date.

QUESTIONS PRESENTED

The first issue presented is the immunity of a District

Attorney General from a Civil Rights Act suit for money

damages based upon an allegation by the plaintiff that the

prosecutor presented perjured testimony in her prior

criminal prosecution.

The second issue presented is the disregard by the

Court of Appeals of the District Court's findings of fact

and the rendering of an opinion based upon findings of fact

in direct conflict with the District Court's findings.

The third issue presented is the speculation and con-

clusion by the Court of Appeals that plaintiff's conviction

in a prior criminal trial was the result of the introduction

of alleged perjured testimony.

STATUTORY AND RULE PROVISIONS INVOLVED

42 United States Code Sec. 1983:

“Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding

for redress."

Federal Rules of Civil Procedure, Title 28, United

States Code:

Rule 52(a).

" . . . Findings of fact shall not be set aside un-

less clearly erroneous, and due regard shall be given

to the opportunity of the trial court to judge the

credibility of the witnesses. .. ."

STATEMENT OF THE CASE

On February 19, 1970, Ernie Price died in Carroll

County, Tennessee, as a result of axe and shotgun wounds.

It appeared that the deceased had been struck in the head

with an axe while he was in his house and his body dragged

outside, where a shotgun was positioned between his legs

and the muzzle placed under his chin or in his mouth and

discharged. Officers, upon arriving at the scene, found

that the axe had been washed and that the room in the house

had been cleaned.

Upon finding one of the shoes of plaintiff Hilliard near

the body, the officers located plaintiff at a nearby house

and noted that her clothes were wet. After being arrested,

plaintiff stated that she had been involved in a controversy

with the decedent, with whom she resided at the time (along

with the aged, feeble wife of decedent), over an interest

in farm land owned by the decedent. Plaintiff further

stated that the deceased had chased her with a shotgun and

that she had lost one of her shoes as she fled from him.

She stated that she heard a shotgun blast as she ran away

to a neighbor's home.

Upon investigation the officers found spots on a curtain

in the house and upon a jacket worn by plaintiff. Plaintiff

stated that the spots were blood, but from a hog which had

been dressed.

Defen ant Donn Clark, an agent for the Tennessee Bureau

of Criminal Identification, forwarded the curtains and

jacket to the F.B.1. laboratory in Washington through the

Nashville office of the T.B.1. Some time later the items

were returned with a report stating, "No blood identified"

on the items. Defendant Clark and the Sheriff, without

consulting petitioner Williams, the District Attorney,

attempted tc resubmit the articles for a more thorough

analysis, again through the Nashville T.B.I. office.

As the day of the trial approached, defendant Clark

briefly discussed the matter with petitioner Williams who

advised Clark not to refer in his testimony to the articles

unless called. vontodoso. At the trial Clark was ques-

tioned about the spots on the curtains and jacket, their

appearance, and plaintiff's statement that the spots were

hog blood. The F.B.I. report was not mentioned.

Plaintiff was convicted of second degree murder on May

12, 1970, and was sentenced to twenty years imprisonment.

On May 28, 1970, the F.B.I. reported that the stains on

the curtain were paint or varnish. The jacket had inad-

vertently never been resubmitted to Washington from Nash-

ville.

On April 15, 1971, the Tennessee Court of Criminal

Appeals reversed the conviction on the grounds that the

evidence was unconvincing and that gruesome photographs

of the victim had been exhibited to the jury ( Hilliard v.

State, Tenn.Crim.App. 4/15/71, unreported).

In May of 1971 plaintiff was retried and acquitted in a

trial which differed from the first trial in many significant

particulars (see Appendix B, p. 24a).

On May 11, 1971, plaintiff filed an action in the United

States District Court alleging that defendants Clark and

petitioner Williams had committed perjury, suborned per -

jury and suppressed evidence. The Court granted the

motion of petitioner Williams to dismiss on the basis of

immunity. The Sixth Circuit reversed the dismissal and

remanded for trial. Hilliard v. Williams, 465 F.2d 1212,

cert. denied. 409 U.S. 1029 (1972).

At the trial, the District Court found that petitioner had

not committed any act which deprived plaintiff of any civil

right but awarded plaintiff damages of One Dollar (Appendix

B).

Plaintiff appealed, alleging that the damages awarded

her were insufficient. Defendants appealed, contending

that the award of nominal damages was unwarranted in

light of the Court's finding that defendants had not violated

plaintiff's rights in any regard.

The Sixth Circuit reversed, holding that plaintiff had

shown a violation of her civil rights, and remanded for a

determination of plaintiff's damages, although suggesting

that the Trial Court postpone further proceedings until

this Court announces its opinion in Jmbler v. Pachtman,

500 F.2d 1301 (9th Cir. 1974), cert. granted, 95 S.Ct.

1324, 43 L. Ed. 2d 423.

REASONS FOR GRANTING THE WRIT

The decision of the Sixth Circuit conflicts with other

Courts of Appeal.

A. SCOPE OF IMMUNITY OF PROSECUTING ATTOR-

NEYS

The Courts of Appeal in all circuits wnich have ruled

upon the question have granted immunity to a prosecutor

from suits brought against him for acts committed "in the

performance of duties constituting an integral part of the

judicial process" or "within the scope of his prosecutorial

function.'' However, the Sixth Circuit differs from other

Courts of Appeal in its interpretation of the phrases “inte-

gral part of the judicial process" and "prosecutorial func-

tion, "

In Imbler v. Pachtman, 500 F.2d 1301 (1974), cert.

granted, _U.S. __, 95 S.Ct. 1324, 43 L. Ed. 2d 423?

: Imbler involves the identic2] question presented in the instant case.

Petitioner submits that, should certiorari be granted, this case should be

consolidated with Imbler.

the Ninth Circuit granted immunity to a prosecutor from a

suit alleging that he had knowingly and maliciously used

perjured testimony to secure plaintiff's conviction in a

prior criminal trial. The court further stated that the

acts alleged “occurred during prosecutorial activity which

can only be characterized as an ‘integral part of the judi-

cial process.’”

In Kauffman v. Moss, 420 F.2d 1270 (1970), the Third

Circuit held that a prosecuting attorney was acting within

his jurisdiction in bringing a criminal charge against

plaintiff and was therefore immune regardless of the alle-

gation that plaintiff's conviction was the result of perjured

testimony.

In Guerrero v. Barlow, 494 F.2d 1190 (1974), the Fifth

Circuit held that an allegation that a prosecutor denied

plaintiff supplementary police reports and thereby handi-

capped his defense preparations did not allege acts which

were outside the immunity which surrounded the prosecu-

tor's official acts.

In Barnes v. Dorsey, 480 F.2d 1057 (1973), the Eighth

Circuit ruled that alleged suppression of a police report

which would have purportedly helped to establish plaintiff's

innocence was an act which may be characterized as prose-

cutorial rather than investigatory.

The First Circuit granted an absolute immunity to prose -

cutors but qualified it to the extent that it does not include

acts unrelated to the judicial process (such as wiretapping) \

The Second Circuit has stated that a public prosecutor

possesses the same immunity in an action which seeks to

2 500 F.2d 1302.

3 Guerro v. Mulhearn, 498 F.2d 1249 (1974).

hold him personally liable for official acts under 42 U.S.C.,

Sec. 1983, as he does to a similar action for malicious

prosecution. 4

The Seventh Circuit has granted immunity to prosecu-

tors but has qualified that immunity and limited it to the

scope of the prosecutorial function. .

The Sixth Circuit in the instant case has departed from

the law of the other circuits and hasruled that the conduct

of a prosecuting attorney during a trial is now open to

attack and subsequent liability. 6 The Sixth Circuit has

ruled that the decisions made by a prosecuting attorney

during the course of a trial are not cloaked with immunity

but, to the contrary, render him personally liable in the

event of a conviction and subsequent acquittal of a plaintiff.

The obvious departure of the Sixth Circuit from the law

of the other circuits makes it clear that there exists a con-

flict between the circuits which this Court should resolve.

4 Dacey v. New York County Lawyers’ Assn, , 423 F.2d 188 (1969).

See also Fanale v. Sheehy, 385 F.2d 866 (1967).

5 Tyler v. Witkowski, 511 F.2d 449 (1975).

Holton vy, Boman, 493 F.2d 1176 (1974).

John v. Hurt, 489 F.2d 786 (1973).

5 The issue of the immunity of a prosecuting attorney was previously

decided in this case in Hilliard vy. Williams, 465 F.2d 1212 (1972), cert.

denied, 409 U.S. 1029, 93 S.Ct. 461, 34 L.Ed.2d 322. However,

petitioner Williams points out that the prior decision of the Sixth Circuit

and the denial of certiorari by this Court were made at the pleading stage

of this litigation. There has since been a full evidentiary hearing upon

which petitioner Williams now relies as a basis for his immunity.

—_— oe er Gere a

B. DISREGARD OF THE COURT OF APPEALS OF THE

FINDINGS OF FACT BY THE TRIAL COURT

Although the Sixth Circuit stated in the instant case that

“we are unable to agree with several of the court's con-

clusions of law, '’ the Court actually disagreed with the

Trial Court's findings of fact. The Trial Court found:

"7. Neither of the defendants jointly or severally

suppressed any evidence, committed or suborned per -

jury, or otherwise committed any act or were guilty of

any omission which deprived Mrs. Hilliard of any rights

guaranteed her by the Constitution of the United States

or any Federal statute. "8

The Sixth Circuit, although not charged with the re-

sponsibility of determining the facts, substituted its judg-

ment for that of the Trial Court, who had the opportunity

to observe all of the witnesses, their manner and demeanor,

and their credibility.

Rule 52 of the Federal Rules of Civil Procedure provides,

in pertinent part, that: ‘'Findings of fact shall not be set

aside unless clearly erroneous, and due regard shall be

given to the opportunity of the trial court to judge the cred-

ibility of the witnesses."

The Courts of Appeal in all the circuits have long recog-

nized and have faithfully applied thisrule. 9 The Sixth

’ Appendix A, page 9a.

8 Appendix B, page 29a,

9 Second Circuit - Gruja v. U.S. Lines Co., 337 F.2d 375 (1964);

Third Circuit - Speyer, Inc. v. Humble Oil & Refining Co., 403 F.2d

766 (1968), cert, denied, 394 U.S. 1015, 89 S.Ct. 1634, 23 L.Ed, 2d 41;

Fifth Circuit - New West Transport Corp. v. S/S Angelina, 410 F.2d 1147

(1969); Eighth Circuit - Parke-Davis & Co. v. Stromsodt, 411 F.2d 1390

(1969); Ninth Circuit - Monroe Auto Equipment Co. ~. Superior Industries,

Inc., 332 F.2d 473 (1964), cert. denied, 379 U.S. 901, 85 S.Ct. 190,

13 L, Ed. 2d 175; Tenth Circuit - U. S. v. 79.95 Acres of Land, 459 F.2d

185 (1972); D. C. Circuit - Case v. Morrisette, 475 F.2d 1300 (1973).

Circuit, however, has modified that rule to provide that

the Court of Appeals, when dealing with questions of con-

stitutional magnitude, is not required to accept fact trier's

findings merely because it considers them not clearly

erroneous. Guzick v. Drebus, 431 F.2d 594 (1970), ce7t.

denied, 401 U.S. 948, 90 S.Ct. 941, 28 L. Ed.2d 231.

Without commenting upon the propriety of that modifica -

tion of Rule 52, petitioner respectfully submits that the

instant case is not of constitutional magnitude and this modi-

fication is therefore not applicable.

The Sixth Circuit's disregard of the findings of fact by

the Trial Court represents an irreconcilable conflict with

the law of the other circuits.

Il.

The decision of the Sixth Circuit is in conflict with appli-

cable decisions of this Court and is a departure from settled

case law.

A. IMMUNITY OF PROSECUTING ATTORNEY

This Court has historically recognized immunity for

judges and others closely associated with the judicial process

to protect them from the threat of damage suits for acts

performed within the scope of their judicial or quasi-judi-

cial functions.

In Yaselli v. Goff, 12 F.2d 396 (1926), the Second Cir-

cuit reviewed the authorities concerning the immunity of

a prosecutor and concluded that a prosecutor enjoyed abso-

lute immunity even though he may have acted maliciously.

This Court, citing Bradley v. Fisher, 13 Wall. 335, 347,

and Alzua v. Johnson, 231 U.S. 106, 111, affirmed in 275

U.S. 593 (1927).

In Pierson v. Ray, 386 U.S. 547, 554 (1967), this Court

found that there was no evidence that "Congress meant to

abolish wholesale all common law immunities" in enacting

42 U.S.C. 1983 and that the immunity of judges from lia-

bility for damages for acts committed within their judicial

jurisdiction was applicable in actions brought under the

Civil Rights Act.

In Barr v. Matteo, 360 U.S. 564 (1959), this Court held

that allegations of malice in a libel complaint do not destroy

the immunity of a public official when the actions complained

of were “within the outer perimeter of petitioner 's line of

duty."

This Court has also recently approved a qualified offi-

cial immunity from damage actions under the Civil Rights

Act against state executives’ and school officials. !}

The opinion of the Sixth Circuit in the instant case is a

departure from the time-honored decisions of this Court

and an aberration in settled case law.

B. SPECULATION ABOUT CAUSATION

It is a firmly established principle of our jurisprudence

that a tortfeasor is held responsible only for damage which

bears some reasonable connection to the alleged acts or

omissions of the tortfeasor.

Prosser, Law of Torts (4th Ed., 1971), at page 236,

states the general rule in this manner:

a= v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed. 2d 90

(1974)

oo" v. Strickland, —sUS. _,:95 S.Ct. 992, 43 L.Ed. 2d 214

"An essential element of the plaintiff's cause of

action for... any. . . tort is that there must be some

reasonable connection between the act or omission of

the defendant and the damage which plaintiff has suffered.

* * .

. an act of omission is not regarded as a cause

of an event if the particular event would have occurred

without it." (p.239)

30 Am .Jur.2d, Evidence, Sec. 1081, p. 228, provides

that a judgment may not be based merely on conjecture,

suspicion, surmise,!? supposition or speculation.’*

30 Am.Jur.2d, Evidence, Sec. 1121, p. 288, states

that:

"The evidence must not leave the causal connection

a matter of conjecture; it must be something more than

consistent with plaintiff's theory as to how the accident

occurred. Where the proof of causal connection is

equally balanced, or the facts are as consistent with

one theory as another, plaintiff has not met the burden

which the law casts upon him... . In other words,

if the cause of an injury may be as reasonably attributed

to an act for which the defendant is not liable as to one

for which he is liable, the plaintiff has not sustained the

burden of proving that his injury is the direct result of

defendant's negligence.”

Persons who perpetrate torts are, as a general rule,

responsible and only responsible for the proximate

12 American Casualty Co, v. Myrick, 304 F.2d 179 (Sth Cir. 1962);

Franklin v, Skelly Oil Co,, 141 F.2d 568 (10th Cir. 1944).

13 Moore v. Chesapeake & Ohio R. Co., 340 U.S. 573, 71 S.Ct. 428,

95 L.Ed. 547 (1951).

consequences of the wrongs they commit. Jellison v.

Kroger Co., 290 F.2d 183, 185 (6h Cir. 1961).

This Court, in Penn. RR v. Chamberlain, 288 U.S. 333,

339, 53 S.Ct. 391, 393, 77 L.Ed. 819 (1932), held, on

different facts, that:

"We, therefore, have a case belonging to that class

of cases where proven facts give equal support to each

of two inconsistent inferences; ir which event, neither

of them being established, judgment as a matter of law,

must go against the party upon whom rests the necessity

of sustaining one of these inferences as against the

other, before he is entitled to recover."

The Trial Court in the instant case found a substantial

amount of circumstantial evidence presented at the first

trial of plaintiff which strongly indicated the guilt of plain-

tiff, entirely apart from the items of evidence allegedly

suppressed by defendant. '* Further, the Trial Court found

at least four substantial differences in the evidence pre -

sented at the first and second trials of plaintiff. 15

Consequently, the Trial Court found that:

"It would amount to speculation and surmise for the

court to conclude that the absence (whether deliberate

or otherwise) of the F.B.I,. report of March 26, 1970,

or the absence of the curtains and jacket, effected (sic)

14 Appendix B, p, 24a. Some of these items were motive, opportunity,

prior controversy with deceased, plaintiff's shoe being found within a few

feet of deceased, conduct of plaintiff after crime, ability and strength of

plaintiff and inconsistent statements of plaintiff.

15 Appendix B, p. 26a-27a. Four of these differences were introduction

of gruesome photographs, absence of testimony of deceased's family,

absence of testimony of deceased's sons, and different testimony of

plaintiff.

the outcome of the May, 1970, trial. There was con-

siderable evidence to warrant a finding of guilty on the

record in any event, "16

Further, the Trial Court concluded that the reversal of

the first trial was due largely to the admission of gruesome

photographs.'" As a matter of fact, the Tennessee Court

of Criminal Appeals expressly stated that the alleged sup-

pression of the F.B.I. report was not properly before that

Court since plaintiff (defendant therein) had not brought

that to the attention of the state trial court in her motion

for a new trial. !®

The Sixth Circuit, however, stated that proximate causa-

tion is analyzed in terms of foreseeability of the injury and

ruled that the injury in the instant case was not only fore-

seeable but the actual result intended.’? The Court, although

distinguishing proximate causation from causation in fact,

then analyzed this case in terms of causation in fact.

The Court then enunciated a rule of causation which de-

parted from settled case law by ruling that ". . . plaintiif

need only show by a preponderance of the evidence that

defendant's conduct was a substantial factor in bringing

about the injuries suffered. " 2°

Such statement immediately followed the Court's state-

ment that: "No one can ever be certain that Hilliard would

16 Appendix B, p. 30a.

17 Appendix B, p. 30a.

18 Appendix A, p. 7a.

19 Appendix A, p. 15a.

20 Appendix A, p. 16a.

not have been convicted if defendants had acted properly

in all respects." 2}

Such a holding, whether it be based upon proximate

Causation or causation in fact, is contrary to the settled

principles of case law in the United States and is an aber -

ration in the law of legal causation.

Ill,

The decision of the Sixth Circuit raises important ques -

tions of Federal law which have not been, but should be,

settled by this Court.

Although this Court has ruled upon the immunity of a

prosecuting attorney, it has done so only in the per curiam

affirmance of Yaselli v. Goff, supra.

This Court decided the immunity of state judges from

damage actions under the Civil Rights Act in Pierson v.

Ray, supra.

The immunity of a state prosecutor should now be ex-

amined. Although the Sixth Circuit has held that a prose -

cutor is not immune from acts which do not constitute an

integral part of the judicial process, no guidelines are

specified and the scope of the phrase "judicial process" is

not defined.

Without a definitive opinion on the scope and limits of

a prosecutor's immunity, prosecutors will be called upon

to defend every action brought against them which contains

allegations of acts “outside the scope of judicial process."

Astute "jailhouse lawyers," merely by the insertion into

21 Appendix A, p. 16a.

their complaints of a few words, can now compel prosecu-

tors to go to the expense, trouble and time of defending

themselves in civil actions.

Prosecutors will now be called upon to try criminal

cases at least twice —the original prosecution and their

own subsequent "prosecution." By the addition to their

complaint of the words "perjury" or "suppression of evi-

dence," every dissatisfied inmate (and most inmates are

vehemently dissatisfied) can now retaliate by bringing his

prosecutor into court. Even if there is no merit whatso-

ever to the allegations made, the prosecutor will be re-

quired to go through the time-consuming rigors of trial.

Such a situation will place an intolerable burden upon our

already overworked system of criminal justice.

Judge Learned Hand, in Gregoire v. Biddle, 177 F.2d

579 (2nd Cir. 1949) eloquently stated the solution to this

problem in this manner:

“It does indeed go without saying that an official,

who is in fact guilty of using his powers to vent his

spleen upon others, or for any other personal motive

not connected with the public good, should not escape

liability for the injuries he may so cause; and, if it

were possible in practice to confine such complaints to

the guilty, it would be monstrous to deny recovery.

The justification for doing so is that it is impossible

to know whether the claim is well founded until the case

has been tried, and that to submit all officials, the

innocent as well as the guilty, to the burden of a trial

and to the inevitable danger of its outcome, would

dampen the ardor of all but the most resolute, or the

most irresponsible, in the unflinching discharge of

their duties. Again and again the public interest calls

for action which may turn out to be founded on a mistake,

AT 2 te

Ep ee oe ee e

in the face of which an official may later find himself

hard put to it to satisfy a jury of his good faith. There

must indeed be means of punishing public officers who

have been truant to their duties; but that is quite another

matter from exposing such as have been honestly mis-

taken to suit by anyone who has suffered from their

errors. As is so often the case, the answer must be

found in a balance between the evils inevitable in either

alternative. In this instance it has been thought in the

end better to leave unredressed the wrongs done by dis-

honest officers than to subject those who try to do their

duty to the constant dread of retaliation. Judged as

res nova, we should not hesitate to follow the path laid

down in the books."

CON CLUSION

The decision of the Sixth Circuit in the instant case is

in conflict with the decisions of the other circuits, the

rulings of this Court, and the settled case law of this country.

The instant case provides a good vehicle for this Court to

consider problems of monumental concern to our system

of criminal justice.

The remand to the Trial Court from the Sixth Circuit

directs the Trial Court to ascertain plaintiff's damages

but suggests that the case should be delayed until this Court

rules inImbler, supra, in which certiorari has been

granted. However, should this Court affirm Imbler, the

Trial Court would nonetheless be powerless to grant the

Imbler immunity to Williams because of the directions in

the remand order. Therefore, a denial of the petition for

certiorari in this case and an affirmance by this Court of

Imbler v. Pachtman, supra, if same should happen, would

result in a situation in which prosecutors in the Ninth Cir -

cuit, and others, would be completely immune from civil

rights damage actions while petitioner in the instant case

is held personally liable for the same alleged acts.

Respectfully submitted,

DAVID R. FARMER,

Post Office Box No. 726,

Jackson, Tennessee 38301,

Telephore: (901) 427-2648.

Waldrop, Hall, Tomlin & Farmer

Of Counsel

<> Cee

APPENDIX A

Nos. 74-1356-58

UNITED STATES COURT OF APPEALS

For the Sixth Circuit

LILLY MAE ONIE LEE WHITELAW

HILLIARD, APPEAL from the

Z United States District

Plaintiff-Appellant, Scat ien tie Sinai

Vv. P ern District of Ten-

nessee, Eastern

JOHN L. WILLIAMS and DONN CLARK, Division.

Defendant-Appellees. }

Decided and Filed May 28, 1975

Before: PHILLIPS, Chief Judge, EDWARDS, Circuit

Judge, and O'SULLIVAN, Senior Circuit Judge.

PHILLIPS, Chief Judge. This appeal grows out of an

action brought by plaintiff Hilliard under 42 U.S.C. §§ 1983,

1985 against District Attorney General John L. Williams

and against Donn Clark, an agent of the ennessee Bureau

of Criminal Identification. The complaint alleged that the

defendants withheld exculpatory evidence and presented

false and misleading testimony at Mrs. Hilliard's crimi-

nal trial on the charge of murder. After a nonjury trial,

Appendix A - C.A. 6 Opinion, 5/28/75

the District Court awarded nominal damages of $1 each

against Williams and Clark and costs against Williams.

All of the parties appealed to this court. For the reasons

stated below, we reverse and remand for further proceed-

ings.

In late 1969, Mrs. Hilliard came to Tennessee from

her home in Indiana to obtain her share of land that she

held in common

[2]

with her aunt, Vina Price. Ernie Price, the husband of

Vina Price, disputed Mrs. Hilliard's claim to the land,

and Mrs. Hilliard retained an attorney to protect her

interest.

On February 19, 1970, Ernie Price died from the effects

of two axe blows and a shotgun wound to the head and mouth.

It appeared that Mr. Price had been murdered inside his

home and the body thereafter dragged outside. One of

Mrs. Hilliard's shoes was found near the scene of the

crime. According to Mrs. Hilliard, just before the

murder Mr. Price had threatened her with a shotgun, and

she fled toward a neighbor's house, losing the shoe in the

process. She claimed to have heard a shotgun blast

while running. Upon arriving at the neighbor's home, she

telephoned her attorney, who in turn called the authorities.

Later that day Mrs. Hilliard was arrested. Defendant

Clark, who had been assigned to investigate the murder,

seized as evidence a curtain from the Price home and the

jacket Mrs. Hilliard was wearing when arrested, both of

which contained small stains that Clark thought might be

blood. Clark sent the curtain and the jacket to the F.B.I.

laboratory in Washington for analysis of the stains. In

late March of 1970, the F.B.I. returned both items and

Appendix A - C.A. 6 Opinion, 5/28/75

submitted a report stating: "No blood was identified on

Q1 [jacket] or Q2 [curtain]." Agent Clark considered the

report inconclusive and sent the jacket and curtain to Nash-

ville to be forwarded back to the F.B.I. for further analysis.

Unknown to either defendant, the jacket for some reason

never left Nashville. On May 28, 1970, the F.B.I. re-

ported that the stains on the curtain were composed of

paint or varnish.

Before Mrs. Hilliard's murder trial began on May 12,

1970, the defendants discussw# the first F.B.I. report at

least twice. Williams instructed Clark not to mention

the report in his testimony unless specifically questioned

about it. Defendant Williams did not reveal the contents

of the report to Mrs. Hilliard or to her attorney. To the

contrary, in his capacity as

[3]

prosecuting attorney he al!owed the following testimony

to be elicited from Agent Clark without correction or

explanation:

DIRECT EXAMINATION BY GEN. SMITH:

Q 66 Did you proceed to inspect the living room

furniture then?

A Yes sir, I found what looked to be blood stains

on the arm of the arm chair, on the north side of the

house, sort of behind the stove, —

Q 67 _ All right, go ahead?

A Also found blood stains on the floor in front of

the chair, and some on the curtains behind the stove,

then on the back of the couch on the north wall of the

living room, the wail looked wet, as if it had been washed

behind the couch there.

Q 108 Now, did the defendant continue to remain

Appendix A - C.A. 6 Opinion, 5/28/75

in the Sheriff's car while you all made the investigation?

A Yes, she stayed in the back seat of the sheriff's

car.

Q 109 Now, did you take a picture of her?

A Yes. (shows photo)

Q 110 Was that the way she was dressed when you

took the picture of her?

A Yes, that was made at the jail.

Q 111i What kind of coat is chat?

A A blue nylon windbreaker type coat.

Q112_ Allright, did you find any blood stains on

that?

A Yes sir, [I found some spots on it.

Q 113 What did they appear to be?

A They appeared to be blood stains.

Q 114 Where were they?

A They were on the right tail of the coat, right

front of the coat.

CROSS-EXAMINATION BY MR. MADDOX:

Q55 Was there any indication of any blood stains

on the floor where the water was?

[4]

A No sir, —on the edge of where the water was is

where you could see the blood stains.

Q 56 Now, how do you know it was blood stains?

A That is what it looked to me like.

Q 57 Did you have it examined to see what it was?

A No, I didn't have it analyzed.

Q 58 Did you have anything analyzed off the couch

to determine if it was blood?

A No sir. ;

Q 59 Did you have the curtains analyzed?

Appendix A - C.A. 6 Opinion, 5/28/75

A I sent them off to the FBI lab and they aren't

back yet.

Q 60 You don't have the curtains back?

A Nd, sir.

Q 61 Lets talk about this jacket, —you put in some

very dangerous evidence against the defendant, by say-

ing she had blood-stains on her jacket, —do you know

they were blood stains?

A __ I said they looked like blood stains.

Q 62 How large were they, Mr. Clark?

A They were small, —

Q 63 _~—sC~Piin point weren't they?

A No, they were bigger than pin point?

Q 64 Well, were they as large as a dime?

A NO sir, not as large as a dime.

Q65 Were they as large as half a dime?

A Yes sir, —

Q 66 Now, Mr. Clark, be sure about it?

A Yes, they were as large as half a dime.

Q 67 How many spots were on the jacket?

A About 3 or 4, scattered, —

Q 68 Scattered where?

A Upon the right side of the tail of the coat.

Q 69 Were there any on the back?

A I didn't see any.

Q70 Mr. Clark, where is that jacket today?

A At the FBI Lab in Washington.

Q71 Why didn't you make it available here for us

(S]

so that the jury could see those spots on that jacket and

determine if it was blood?

A They just didn't send it back.

Q72 Have you had any reports that that was human

Appendix A - C,A. 6 Opinion, 5/28/75

blood on that jacket?

A No, not at this time.

Q 73 But you don't know what was on that jacket

do you?

A N_. just what it looks like, —

Q74 Well, we don't want your opinion, we want

to know if you know what was on that jacket, —

GEN. SMITH: We are going to object to a question

like this, —he can give his opinion, —

THE COURT: I think his opinion is all he could

give, —

MR.MADDOX: Iasked him if he knew, —

THE COURT: He can ask him whether he knows or

not, he can state, —the only way he would know would

be proof of what he actually saw, —

Q75 _ Do you know if that was blood stains or not?

A Not through a chemical analysis I wouldn't know,—

Q76 So you do not know?

A No sir, I don't.

Later in the trial, Attorney General Williams himself

questioned another law officer who had participated in the

investigation, and the following testimony was given:

Q6 All right, just describe this jacket that Onie Lee

was wearing?

A There was blood spots on the right side of the

jacket.

Q7 They appeared to be blood stains to you?

A Yes sir.

Mrs. Hilliard testified on her own behalf to the effect that

if there was any blood on her jacket, it was hog blood and

not human blood.

Se -

Appendix A - C.A. 6 Opinion, 5/28/75

[6]

Mrs. Hilliard was convicted of second degree murder

and sentenced to twenty years’ imprisonment. On April 15,

1971, the Tennessee Court of Criminal Appeals reversed

the conviction on the grounds that the evidence was "un-

convincing” and insufficient to support the verdict and that

some gruesome photographs of the victim had been exhibited

to the jury. Hilliard v. State, No. 3 (Tenn. Crim. App.,

Apr. 15, 1971, unreported). Although the court did not

pass on the propriety of withholding the F.B.I. laboratory

report, it did discuss the effect of the testimony about the

stains on Mrs. Hilliard's jacket:

Of quite devastating impact tending to show guilt was

the fact that the defendant had what appeared to be blood

Stains on her jacket. The State introduced proof of

this, and then it was revealed that the jacket itself had

been sent to the F.B.I. laboratory in Washington, D.C.

for chemical analysis and, although some three months

had passed since the jacket had been taken from the de-

fendant, it had not been returned for use at the trial;

nor was there any information available to shed light on

the vital issue of whether the blood was human as theo-

rized by the State or hog as theorized by Mrs. Hilliard.

Although, as aforesaid, no opportunity was allowed

the trial court to correct any error that might have been

involved in allowing the State's proof concerning the

blood being on the jacket when it developed that the

jacket itself was, by State action, unavailable, and thus

we cannot consider the propriety of the court's rulings

on the objections made during trial; the impact of this

testimony does enter into our decision. The proof

Appendix A - C.A. 6 Opinion, 5/28/75

offered by the State relative to this blood was circum -

stantial as was all the other. But here there was an

opportunity to make available to the jury direct proof,

in the face of the defendant's testimony that the blood

was that of a hog, that would have supported one theory

and discredited the other. Either the blood was human

or swine. If it had been established as human, this

would have left little

(7]

room for doubt that the defendant was not telling the

truth in her explanation of how she got blood on her

clothing. If it developed that the blood was from a hog,

this would have proved conclusively that she was telling

the truth, in this particular at least.

Certainly the two hypotheses suggested by the proof

of blood on the jacket—one tending strongly to suggest

guilt, the other tending to support the theory of the de-

fendant —are equally reasonable. In its present condi-

tion the evidence offered by the defendant buttressed by

the presumption of innocence never overcome by suffi-

cient proof preponderates against the verdict.

Mrs. Hilliard was retried and acquitted in May 1971,

having served about one year in the penitentiary. At the

second trial she had the benefit of the F.B.I. report, which

was duly admitted into evidence.

Mrs. Hilliard filed her complaint in the District Court

on May 11, 1971, essentially alleging the facts as outlined

above. Initially, the court granted defendant Williams’

motion to dismiss on the basis of quasi-judicial immunity.

In an earlier appeal, we reversed the dismissal and remanded

for trial, holding tha’ he complaint charged Attorney General

Appendix A - C.A. 6 Opinion, 5/28/75

Williams with acts that were "outside his quasi-judicial

capacity and beyond the scope of ‘duties constituting an

integral part of the judicial process.'" Hilliard v. Williams,

465 F.2d 1212, 1218 (6th Cir.), cert. denied, 409 U.S.

1029 (1972).

On remand, the District Court conducted a nonjury trial

and set forth findings of fact and conclusions of law in an

unreported memorandum opinion. In essence, the District

Court found that Williams acted “unwisely and improperly"

in failing to disclose the substance of the exculpatory F.B.I.

report. The court apparently also held that Agent Clark

did not fully discharge his duty to refrain from giving eva -

sive or misleading testimony. Nevertheless, the court con-

[8]

cluded that the defendants’ conduct had not deprived Mrs.

Hilliard of her constitutional rights and that it had not been

shown that the defendants’ acts were the direct and proxi-

mate cause of Mrs. Hilliard's conviction and incarceration.

Despite its conclusions, the court awarded nominal damages

of $1.00 against each defendant and taxed costs against

Williams.

All of the parties now appeal from the judgment of the

District Court. Plaintiff argues that she is entitled to more

than nominal damages. Defendants insist that in view of

the District Court's finding that plaintiff was not deprived

of her constitutional rights, even a nominal award is un-

warranted.

After a review of the record, we are unable to agree

with several of the court's conclusions of law. In Conclu-

sion No. 4, the District Court stated that Attorney General

Williams “advised Donn Clark not to mention the report at

10a

Appendix A - C.A. 6 Opinion, 5/28/75

the first criminal trial unless specifically called for, and

thus, we conclude that Clark acted under ‘advice’ of Counsel,

Williams." It is unclear to us whether the District Court

viewed Clark's reliance on Williams’ advice as an effective

defense in this civil rights action. Nevertheless, we think

it plain that a law enforcement officer who knowingly gives

evasive, misleading, and deceptive testimony during a

criminal trial cannot escape civil liability that otherwise

would attach merely because the prosecuting attorney in-

structed him to testify as he did. As the District Court

pointed out, Clark was under an affirmative duty to refrain

from giving evasive or misleading testimony, and the duty

did not disappear when Williams advised Clark to avoid

mention of the F.B.I. report.

In Conclusion No. 7, the District Court made the follow-

ing statement:

7. Neither of the defendants jointly or severally sup-

pressed any evidence, committed or suborned perjury,

or otherwise committed any act or were guilty of any

omission which deprived Mrs. Hilliard of any rights

guaran-

[9]

teed her by the Constitution of the United States or any

Federal statute.

We do not agree with the court's holding on this aspect of

the case. Whether guilty or innocent, Mrs. Hilliard had

a due process right to a fair trial. Defendant Williams

withheld an F.B.I. report indicating that there was no blood

on Mrs. Hilliard's jacket. Moreover, Williams failed to

prevent or to correct deceptive and misleading testimony

given by defendant Clark from which the jury could have

lla

Appendix A - C.A. 6 Opinion, 5/28/75

concluded that the jacket was stained with the victim's

blood. Further, it appears that Williams actually instructed

Clark to testify at least evasively, if not falsely. We be-

lieve that by these acts and omissions defendant Williams

deprived Mrs. Hilliard of her constitutional right to a fair

trial. Miller v. Pate, 386 U.S. 1 (1967). See Giglio v-

United States, 405 U.S. 150 (1972); Brady v. Maryland,

373 U.S. 83 (1963); Napue v. Illinois, 360 U.S. 264 (1959).

It follows that this defendant's conduct also amounted to an

actionable violation of 42 U.S.C. §1983.

We hold that the acts and omissions of defendant Clark

as outlined above also resulted in depriving Mrs. Hilliard

of due process and her constitutional right to a fair trial,

under Brady v. Maryland, supra. See also United States

ex rel. Moore v. Koelzer, 457 F.2d 892 (3d Cir. 1972);

Kauffman v. Moss, 420 F.2d 1270 (3d Cir.), cert. denied,

400 U.S. 846 (1970).

As an agent of the Tennessee Bureau of Criminal Identi -

fication, Clark was assigned to investigate the murder for

which Mrs. Hilliard was convicted at her first trial and

acquitted at her second trial. It was he who sent the jacket

and curtain to the F.B.I. laboratory for analysis of the

suspected blood stains, and later sent them back to Nashville

to be forwarded to the F.B.I. for further analysis. In his

testimony before the jury he violated his duty to give the

complete truth and to avoid deceptive or misleading state-

ments. A.though Williams, the District Attorney General,

was the official representative of the State of Tennessee in

the prosecution of the case, Clark also played an active

role in the prosecution.

l2a

Appendix A - C.A, 6 Opinion, 5/28/75

[10]

In Brady, the Supreme Court said:

We now hold that the supression by the prosecution

of evidence favorable to an accused upon request violates

due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution.

The principle of Mooney v. Holohan is not punishment

of society for misdeeds of a prosecutor but avoidance

of an unfair trial to the accused. Society wins not only

when the guilty are convicted but when criminal trials

are fair; our system of the administration of justice

suffers when any accused is treated unfairly. An in-

scription on the walls of the Department of Justice states

the proposition candidly for the federal domain: ‘The

United States wins its point whenever justice is done its

citizens in the courts.’ 373 U.S. at 87.

Clark relies upon Bryant v. Kentucky, 490 F.2d 1273

(6th Cir. 1974), and Hurlburt v. Graham, 323 F.2d 723

(6th Cir. 1963). We are of the view that there are signifi -

cant distinguishing features between those decisions and

the facts of the case at bar.

We hold that the conduct of Clark also amounted to an

actionable violation of 42 U.S.C. §1983. Cf. Jones v.

Perrigan, 459 F.2d 81 (6th Cir. 1972).

In Conclusion No. 13, the following statement appears:

13. During the proceedings in question defendant

Williams was acting within the scope of his duties as

Attorney General and at no time did he go outside the

scope of his duties as Attorney General in directing or

l3a

Appendix A - C.A. 6 Opinion, 5/28/75

commanding or ordering the investigating officers or

witnesses to present false testimony.

This conclusion is plainly untenable. It is most emphat-

ically not within the scope of a prosecuting attorney's duties

to withhold exculpatory evidence and to direct witnesses to

give

(11)

misleading and deceptive testimony. Hilliard v. Williams,

465 F.2d 1212 (6th Cir.), cert. denied, 409 U.S. 1029

(1972); see ABA CODE OF PROFESSIONAL RESPONSIBILITY,

EC 7-13, DR 7-103(B). The function of a criminal trial is

to discover the truth, and to that end it is the prosecutor's

duty to reveal pertinent information, not to hide it. Brady

v. Maryland, supra, 373 U.S. 83, 87 (1963).

As the foregoing discussion indicates, we believe that

defendants Williams and Clark violated §1983, for which

Mrs. Hilliard is entitled to recover damages. See Magnett

v. Pelletier, 488 F.2d 33 (lst Cir. 1973); Basista v. Weir,

340 F.2d 74, 87 (3d Cir. 1965); Sexton v. Gibbs, 327 F.

Supp. 134, 142 (N.D. Tex. 1970), aff'd, 446 F.2d 904

(Sth Cir. 1971), cert. denied, 404 U.S. 1062 (1972). The

complaint, however, prayed for both punitive and compensa -

tory damages. The award of punitive damages is a matter

within the discretion of the trier of fact, and the scope of

appellate review is accordingly narrow. See Stolberg v.

Board of Trustees, 474 F.2d 485, 489 (2d Cir. 1973);

Donahue v. Staunton, 471 F.2d 475, 482 (7th Cir. 1972),

cert. denied, 410 U.S. 955 (1973); Lee v. Southern Home

Sites Corp., 429 F.2d 290, 294 (Sth Cir. 1970). In this

case we see no basis for disturbing the District Court's

refusal to award punitive damages.

l4a

Appendix A - C, A. 6 Opinion, 5/28/75

A more difficult question is presented by the lower court's

failure to grant compensatory damages. The court concluded

that Mrs. Hilliard had not shown a sufficient causal connec -

tion between the defendants’ improper acts and her murder

conviction and subsequent incarceration. In Conclusion

No. 8, the District Court made the following statement:

8. It would amount to speculation and surmise for

the Court to conclude that the absence (whether deliberate

or otherwise) of the F.B.I. report of March 26, 1970, 3

or the absence of the curtains and jacket, affected the

outcome of the May, 1970, trial. There was considerable

evidence to warrant a finding of guilty on the record in

any event.

[12]

To the same effect is Conclusion No. 12:

12. Plaintiff has failed to show that any wrongful act

of Clark or of Williams proximately and directly caused

Mrs. Hilliard to be convicted of murder in the second

degree at the May, 1970 trial or to suffer imprisonment

on that account in view of other substantial variances

in the proof adduced at the two trials.

Further, the District Court stated that the award of nom-

inal damages was made despite “the failure to show that

such mistaken or improper acts as and if involved on the

part of either defendant were a direct and proximate cause

of any imprisonment or damages."

In our opinion, Mrs. Hilliard has shown by a preponder -

ance of the evidence that Attorney General Williams’ and

T.B.I. Agent Clark's wrongful acts and omissions were a

proximate cause and a cause in fact of her conviction and

l5a

Appendix A - C. A, 6 Opinion, 5/28/75

imprisonment pursuant to her conviction. Proximate cause,

which must be distinguished from factual causation, fre -

quently becomes an issue in negligence actions and usually

is analyzed in terms of the foreseeability of the injury that

actually occurred. See Lancaster v. Montesi, 216 Tenn. 50,

390 S.W.2d 217 (1965). See generally W. PROSSER,

TOR TS 244-90 (4th ed. 1971). Assuming the concept is

applicable to this case, we believe that it presents no prob-

lem. Mrs. Hilliard's conviction and confinement were not

only foreseeable consequences of the defendants’ conduct,

they were without doubt also the intended results.

It appears that this case really turns upon the issue of

causation in fact. We therefore are faced with the question

of whether Mrs. Hilliard sustained her burden of proving

it to be more likely than not that Attorney General Williams’

and T.B.I. Agent Clark's conduct was a substantial factor

and a material element in bringing about her conviction and

imprisonment. See Lancaster v. Montesi, 216 Tenn. 50,

390 S.W.2d 217 (1965); Carney v. Goodman, 38 Tenn.

App. 55,

[13]

270 S.W.2d 572 (1954); W. PROSSER, TORTS 239-41 (4th

ed. 1971). The District Court treated the question as one

of law and answered it in the negative. We disagree.

As the Tennessee Court of Criminal Appeals noted, the

testimony about blood on Mrs. Hilliard's jacket was "[o]f

quite devastating impact."" Such evidence would have been

highly significant to a jury presented with a violent crime

involving axe and shotgun wounds. Furthermore, the other

evidence presented against Mrs. Hilliard was wholly cir-

cum stantial and sufficiently unconvincing that it could not

l7a

Appendix A - C. A. 6 Opinion, 5/28/75

the District Court postpone further proceedings in the pres-

ent case until after the Supreme Court has announced its

decision in Imbler.

l6a

Appendix A - C. A, 6 Opinion, 5/28/75

sustain a verdict of guilty under Tennessee law. It is also

important that at the second criminal trial, when Mrs.

Hilliard had the benefit of the exculpatory F.B. I. report,

she was found not guilty. There were, to be sure, other

differences between the two trials, and thus the subsequent

acquittal in and of itself does not foreclose the causation

issue in Mrs. Hilliard's favor. Nevertheless, the acquittal

“upon retrial is probative evidence tending to establish that

Attorney General Williams’ and T.B.I. Agent Clark's con-

duct was a cause in fact of Mrs. Hilliard's injuries.

TS IL SO Se ee

twee:

The costs of this appeal are assessed against John L.

Williams and Donn Clark.

No one can ever be certain that Hilliard would not have

been convicted if defendants had acted properly in all re-

spects. The law, however, does not place such a heavy

burden on the plaintiff. This is 4 civil case, and plaintiff

need only show by a preponderance of the evidence that de-

fendants' conduct was a substantial factor in bringing about

the injuries suffered. We are convinced that Mrs. Hilliard

has met this burden.

On remand, the District Court should determine the

amount of compensatory damages to which Mrs. Hilliard

is entitled as a result of her conviction and one-year con-

finement in prison. This does not iaclude imprisonment

prior to conviction.

— OE ED RRS TRE ES SRG LON TRS a a ee chee

ee Th Y

The judgment of the District Court is reversed and the

case is remanded for further proceedings consistent with

this opinion.

Pahl OO TON res

[14]

The Supreme Court has granted certiorari in Imbler v.

Pachtman, 500 F.2d 1301 (9th Cir. 1974), cert. granted,

43 U.S.L.W. 3465 (Feb. 24, 1975). It is suggested that

APPENDIX B

In The

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

FILED

LILLY MAE ONIE LEE WHITELAW) NOV 2 1973

HILLIARD,

Plaintiff,

v. y NO. 2073

JOHN L. WILLIAMS and

DONN CLARK,

Defendants. |

MEMORANDUM OPINION

FACTS

1. On about February 19, 1970, Ernie Price was mur-

dered in Carroll County, Tennessee, and the plaintiff herein,

Mrs. Hilliard, was charged with the crime. She was

arrested on February 19, 1970, indicted on May 4, 1970,

for murder in the first degree, arraigned on May 8, 1970,

and tried on May 12 and 13, 1970. She was found guilty of

murder in the second degree on May 13, 1970, and sen-

tenced to serve twenty years in the State Penitentiary.

Upon appeal to the Court of Criminal Appeals of Tennessee,

the conviction was reversed and the case remanded; and

upon retrial Mrs. Hilliard was found not guilty on May 12,

1971, and immediately discharged. Mrs. Hilliard was in

18a

a MR OS eet lO tee ee ee LS a a a k,l ay he iia ey BL,

ON eet Hp -

ot: Cileda

19a

Appendix B - District Court Opinion, 11/2/73

pretrial confinement in Carroll County, Tennessee, from

February 19, 1970, to May 13, 1970, and was in state

custody pursuant to her conviction from May 13, 1970,

through May 12, 1971.

2. Defendant Williams is a District Attorney General

for the 22nd Judicial Circuit which includes Carroll County,

Tennessee, and pursuant to his duties represented the

State of

[2]

Tennessee in the case of the State of Tennessee v. Lilly

Mae Onie Lee Whitelaw Hilliard in the Circuit Court of

Carroll County, Tennessee, which criminal case is a basis

of the present action. The defendant Donn Clark is an

agent of the State of Tennessee, Bureau of Criminal Identi -

fication who was assigned to assist Carroll County authori-

ties in the investigation of the death of Ernie Price.

3. The deceased, Ernie Price, was married to Vina

Price, a sister of Mrs. Hilliard's deceased mother; and

thus, Mrs. Hilliard and the deceased were neice and uncle

respectively by marriage. Vina Price and Mrs. Hilliard's

mother had inherited about seventy (70) acres of real estate

in Carroll County, Tennessee, and they were apparently

tenants in common, since Mrs. Hilliard took her mother's

part. In December of 1969, Mrs. Hilliard came to Tennessee

from her home in Elkhart, Indiana, to have her share of

the real estate set aside to her; however, a dispute arose

and persisted between Ernie Price and Mrs. Hilliard con-

cerning the property. Ernie Price was claiming an interest

in the real estate by reason of adverse possession or pre-

scription contrary to the claim of Mrs. Hilliard. Mrs.

Hilliard employed an attorney, Mr. Dwayne D. Maddox,

20a

Appendix B - District Court Opinion, 11/2/73

to pursue and protect her interest. She apparently remained

in Carroll County until the matter could be settled.

4. On February 19, 1970, between about 10:00 A.M.

and 12:00 Noon, Ernie Price was found brutally murdered

with his body leaning against the back door of his home.

He had a shotgun wound about the mouth, one or two severe

axe type wounds about the head, any of said wounds being

sufficient to have caused his death. The circumstances

surrounding the crime strongly indicated that the

[3]

murder had actually taken place inside the Price home and

the body thereafter removed to the outside in an effort to

conceal the true circumstances surrounding the homicide.

5. Mrs. Hilliard made both judicial and extrajudicial

stateme its to the effect that immediately prior to the homi-

cide that the deceased became enraged, threatened and

chased her with a shotgun; that she ran from the home to

the nearby home of the Nesbitt's; that while she was en

route from the Price home to the Nesbitt home she heard

a gun blast; and that upon reaching the Nesbitt home and

upon the suggestion of Mr. Nesbitt, she contacted her

attorney, Mr. Maddox. She did in fact call Mr. Maddox

who in turn notified the authorities.

When Hilliard arrived at the Nesbitt home following her

flight from the Price home as well as at the time of her

arrest on the day of the murder, she was wearing a blue

windbreaker type jacket that had upon it some small spots

resembling blood. The local officers, including defendant

Clark, theorized that the spots were the blood of Ernie

Price; and they later learned from Mrs. Hilliard or her

counsel that her position was that the spots, if blood at all,

2la

Appendix B - District Court Opinion, 11/2/73

were animal or hog blood. Clark, moreover, seized the

jacket as evidence and likewise seized some curtains from

inside the house of Ernie Price upon which there were spots

resembling blood. On or about March 9, 1970, Clark for -

warded the jacket and the curtains to the F.B.I. laboratory

in Washington, D.C. for analysis to learn if the spots were

blood and, if so, whether the blood was human or animal.

The F.B.I. report dated March 26, 1970, was received

shortly after that date by Clark and indicates, "No blood

identified on Q1] (jacket) or Q2 (curtains)." Clark also

received the jacket

[4]

and the curtains from the F.B.I. laboratory by separate

package shortly after receipt of said report. The report

was considered by Clark and the Carroll County Sheriff to

be inconclusive, particularly in view of the fact that Mrs.

Hilliard herself was taking the position (and did in fact

testify at the trial) that the spots upon the jacket might con-

sist of hog blood. Clark on or about April 28, 1970, for-

warded the curtains and jacket to the Nashville Office of

the Tennessee Bureau of Criminal Identification to be in

turn forwarded to the F.B.I. laboratory in Washington for

further analysis.

6. A preliminary hearing was afforded the accused on

February 27, 1970, in the General Sessions Court of Carroll

County, Tennessee, at which time there was evidenced the

jacket of the accused, along with certain curtaius taken from

the home of the victim. The defendant, Clark, stated dur-

ing or after the hearing that he would submit both the jacket

of the accused and the curtains to a laboratory for examina-

tion and analysis to determine if blood were present. There

was disagreement as to whether Clark, employed by the

22a

Appendix B - District Court Opinion, 11/2/73

Tennessee Bureau of Criminal Investigation, also agreed

at the same time to inform counsel for the accused when

such a report had been returned tohim. In any event,

Clark did not agree to release the contents of the report

when received. The defendant, John L. Williams, actively

participated in this preliminary hearing as the prosecuting

attorney, after which Hilliard was called upon to stand trial

before a jury in the Carroll County Circuit Court.

(S]

7. Prior to the date of the first criminal trial of the

accused, the defendant, Donn Clark, discussed the F.B.I.

laboratory report of March 26, 1970, with the defendant,

John L. Williams, though he did not show it to Williams.

The first such brief discussion occurred in the Carroll

County Courthouse shortly after the receipt of the report,

and included both defendants and Donald Akin, the Sheriff

of Carroll Co nty, Tennessee. Another discussion occurred

just before the first criminal trial of the accused when the

defendant, Donn Clark, went to the office of the defendant,

John L. Williams, with his investigative file to discuss,

among other things, whether the report of March 26, 1970,

would have to be produced at the trial.

8. Mrs. Hilliard was arraigned on May 8, 1970, at

which time the trial date of May 12 was set. At the time

of the trial the jacket was in the Nashville Office of the

Tennessee Bureau of Identification, although Clark believed

that it had been forwarded to the F.B.I. laboratory in

Washington. The curtains were forwarded to the F.B.I.

laboratory, but for some reason not clear from the record,

the jacket was not forwarded, but remained in Nashville,

unknown to Clark and Williams.

23a

Appendix B - District Court Opinion, 11/2/73

9. Prior to the commencement of the first criminal

trial of the accused, defendant, John L. Williams, instructed

the other defendant, Donn Clark, who was to be a witness

not to bring up this report unless it were specifically called

for.

10. Testimony was elicited on the first trial of the

accused from the defendant, Donn Clark, and the State's

witness, Donald Akin, the Sheriff of Carroll County, to the

effect that in their opinion there were spots on both the

jacket of the accused

[6]

and the curtains that "looked like" and/or "appeared to be"

blood.

11. There was other testimony by the defendant, Donn

Clark, and the State's witness, Donald Akin, the Sheriff

of Carroll County, in the first criminal trial that was mis-

leading and evasive as to the existence or availability of

any report of the examination or analysis of the jacket of

the accused, or the curtains, or as to the return of the

jacket and curtains from the F.B.I. laboratory. No speci -

fic question was asked about any such report indicating

negative as to existence of human blood. ”

12. At the 1970 trial, Clark and Sheriff Donald Akin of

Carroll County testified in substance that the jacket had

spots on it which appeared to be blood. Mrs. Hilliard

likewise testified at the first trial that the jacket had spots

on it which might be blood, but were hog blood.

13. After trial and sentencing of Mrs. Hilliard, the

F.B.I, laboratory reported on or about May 28, 1970, that

2 See attachment hereto as footnote No, 2.

24a

Appendix B - District Court Opinion, 11/2/73

the stains on the curtains had been analyzed and found not

to be blood but rather a varnish stain.

14. Pending the appeal of the first criminal trial to the

Tennessee Criminal Court of Appeals, requests were made

of both defendants by Mrs. Hilliard's counsel as to whether

any report of the analysis of the jacket and curtains had yet

been received by the prosecution. A negative response

was indicated. A written motion seeking the production

of any analysis report, when and if received, as well as

the jacket and the curtains themselves, was filed on August

3, 1970, in the Tennessee Court of Criminal Appeals and

a copy forwarded to the defendant, John L. Williams.

15. The Tennessee Court of Criminal Appeals in a

[7]

written opinion on April 15, 1971, reversed the conviction

of the accused purportedly on the grounds that the circum -

stantial evidence adduced at the first criminal trial did not

conclusively prove guilt and exclude all reasonable hypothe -

ses of innocence as the law required. The Court further,

however, noted that the testimony elicited from the State's

witnesses at the first trial to the effect that the stains on

the jacket of the accused were blood, was of "devastating

impact tending to show guilt; "that the jacket itself was

by State action unavailable;" and, that there was not “any

information available to shed light on the vital issue of

whether the blood was human, as theorized bythe State,

or hog, as theorized by Hilliard.”

16. On or about April 20, 1971, after the opinion of the

Tennessee Court of Criminal Appeals was released, the

defendant, John L. Williams, appeared in open Court and

delivered the jacket of the accused and copies of all

25a

Appendix B - District Court Opinion, 11/2/73

correspondence and reports between the prosecution and

the F.B.I. laboratory to counsel for the accused.

17. On May 12, 1971, the second trial of the accused

commenced in the Circuit Court of Carroll County, and

concluded in an acquittal on May 13, 1971.

18. There was a substantial amount of circumstantial

evidence presented at the first (May 1970) trial entirely

apart from the curtains or the jacket strongly indicating

the guilt of Mrs. Hilliard, including the following matters:

a. Mrs. Hilliard had a motive to kill since she

was involved in a serious dispute with the deceased.

b. Just before the homicide the deceased and

[8]

Mrs. Hilliard were engaged in a controversy of such grav-

ity (according to the testimony of Mrs. Hilliard) that the

' deceased threatened and chased Mrs. Hilliard with a shot -

gun.

c. Mrs. Hilliard's shoe was found a few feet

from the body of Ernie Price and when she arrived at the

Nesbitt house one of her shoes was missing.

d. Following Mrs. Hilliard's flight to the Nes-

bitt home, she contacted her lawyer almost immediately.

e. Mrs. Hilliard's behavior and demeanor,

following her flight from the Price home, indicated that

she knew both that Ernie Price was dead, and the where-

abouts of his body.

f. The evidence indicates and counsel for all

parties concede that the murder was either committed by

Vina Price, the widow, or Mrs. Hilliard. Mrs. Price was

26a

Appendix B - District Court Opinion, 11/2/73

a person mentally weak if not totally incompetent; the mur -

der was committed by a person of some physical strength,

and Mrs. Price was elderly and feeble. Mrs. Price had

no motive for killing her husband, and had lived with him

for many years without ever attempting to harm him.

g. Mrs. Hilliard gave testimony at the trial to

the effect that when she fled the Price home, that Mrs.

Price was in the house; however, the children of Ernie

Price testified at the trial that Mrs. Hilliard told them an

inconsistent version that when she fled the house Mrs. Price

was not in the house, but out by "the old house place," some

several hundred yards away.

19. The evidence presented at the second trial was sub-

stantially different from that presented at the first trial in

several significant particulars:

a. Certain rather gruesome photographs, in-

cluding

(9)

those of the body, which were exhibited to the jurors at the

first trial, were not so exhibited at the second trial.

b. The family of Ernie Price did not appear nor

render support to the prosecution case at the second trial

as at the first trial.

c. The sons of Ernie Price did not testify at the

second trial as they did at the first trial to the effect that

Mrs. Hilliard had made certain conflicting statements to

them concerning the whereabouts of Vina Price at the time

Mrs. Hilliard fled the Price home.

d. At the second trial, Mrs. Hilliard testified

that the jacket had no blood on it but that if it did have blood

27a

Appendix B - District Court Opinion, 11/2/73

on it, it was hog blood, whereas she testified at the first

trial to the effect that the jacket did have hog blood on it.

(In effect, she then had the benefit of the report).

20. At no time did Mrs. Hilliard or her counsel make

an effort to have the Court set bond or to make bond though

she claimed to own an interest in a seventy (70) acre tract

of land in Carroll County, Tennessee, (conveyed to her

counsel to be applied on his fee).

21. Prior to the trial of May 1970, counsel for Mrs.

Hilliard took no legal steps aimed at discovering the re-

sults of any test that may have been carried out in connec -

tion with the jacket or the curtains, though he knew that the

items were being submitted for analysis; and he made no

pre-trial formal or informal requests of either of the de-

fendants in connection with the jacket or the curtain or any

reports that may have been received upon them.

22. There is some question as to whether the F.B.I.

report in and of itself would have been admissible as evi-

dence in the absence of an F.B.I. laboratory technician

personally. .

[10]

CONCLUSIONS

1. The rule of law prevailingin the State of Tennessee

at the time of the first criminal trial concerning the weight

and sufficiency of circumstantial evidence alone necessary

to sustain a criminal conviction was that such circumstances

must be consistent with guilt and inconsistent with innocence

and must exclude every other reasonable hypothesis save

the guilt of the criminally accused beyond a reasonable

doubt. Hicks v. State, 490S.W.2d 174; Patterson v.

28a

Appendix B - District Court Opinion, 11/2/73

State, 475 S.W.2d 201 and Harris v. State, 457 S.W.2d

370, cert. denied, 401 U.S. 978, 91 S.Ct. 1206, 28 L.Ed.

2d 328.

2. The defendant, John L. Williams, as District Attorney

General of the 22nd Judicial Circuit, has the ultimate re-

sponsibility for the preparation and presentation of all

criminal proceedings in the 22nd Judicial Circuit and this

responsibility entails a two-fold duty in that he is to pros-

ecute the guilty and protect the innocent. Giles v. Mary-

land, 386 U.S. 66, 87 S.Ct. 793, 197 L.Ed.2d 737; Branch

v. State, 469 S$.W.2d 533, 1969.

3. The defendant, John L. Williams, as District Attor -

ney General, had an affirmative duty: (1) to disclose to

the accused or her counsel material exculpatory evidence

and any information favorable to the defense of the accused

or which might be useful to the defense. Giles v. Mary-

land, supra; Brady v. Maryland, 373 U.S. 83, 83 S.Ct.

1194, 10 L.Ed.2d 215; (2) to correct false or erroneous

evidence when it appears in the trial of a criminal case.

Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.

2d 1217; and (3) to not take any advantage of an accused

by preventing their access to testimony favorable to their

case, or by any trick or fraud whatever, prevent an accused

from learning of evidence favorable

(11)

to their case. Eason v. State, 65 Tenn. 431 (1873);

Robert v. State, 489 S.W.2d 263 (1972) (J. Dwyer's Dis-

sent).

4. The defendant, John L. Williams, as District Attor-

ney General, acted unwisely and improperly in failing to

disclose to the accused or her counsel the substance of

29a

Appendix B - District Court Opinion, 11/2/73

the report as to blood examination. He was also negligent

in not being aware that the testimony of certain State's

witnesses upon the first criminal trial was misleading and

evasive or else he acted improperly in this respect. He

advised Donn Clark not to mention the report at the first

criminal trial unless specifically called for, and thus, we

conclude that Clark acted under "advice" of Counsel,

Williams. See the canons of professional ethics: EC7-

13, EC7-26, and EC7-27, and Hilliard v. Williams, 465

F.2d 1212 (6th Cir. 1972).

5. The defendant, Donn Clark, as an investigating

agent for the State, was also under an affirmative duty to

refrain from perjury and misleading or evasive testimony

calculated to suppress evidence and/or to mislead the jury

as to the significance of the spots on the jacket of the accused.

He did not, however, in our judgment willfully and corruptly

testify falsely so as to violate the perjury laws of Tennessee.

6. The plaintiff has failed to carry the burden of prov-

ing any conspiracy between the defendants Clark and Williams

to suppress evidence, present perjured testimony, or in

any way to deprive Mrs. Hilliard of any rights guaranteed

her by the Constitution of the United States or any Federal

Statute.

7. Neither of the defendants jointly or severally sup-

pressed any evidence, committed or suborned perjury, or

otherwise

[12]

committed any act or were guilty of any omission which

deprived Mrs. Hilliard of any rights guaranteed her by

the Constitution of the United States or any Federal Statute.

30a

Appendix B - District Court Opinion, 11/2/73

8. It would amount to speculation and surmise for the

Court to conclude that the absence (whether deliberate or

otherwise) of the F.B.I. report of March 26, 1970, or the

absence of the curtains and jacket, affected the outcome

of the May, 1970, trial. There was considerable evidence

to warrant a finding of guilty on the record in any event.

9. A substantial basis for the reversal by the Court of

Criminal Appeals were the actions of the trial Judge with

respect to admission of gruesome photographs and the

matters pertaining to circumstances of the jacket, the cur-

tains and the F.B.I. reports relative thereto which were

brought to that Court's attention, at least by motion.

10. It would also be a matter of speculation and con-

jecture to conclude that the testimony given by defendant

Clark at the May, 1970 trial effected its outcome insofar

as the jacket and curtains are concerned.

ll. The testimony given by defendant Clark at the May,

1970 trial must be considered in relation to that of Mrs.

Hilliard and of Sheriff Donald Akin, with respect to whether

or not there was human or animal blood, or otherwise, on

the jacket.

12. Plaintiff has failed to show that any wrongful act of

Clark or of Williams proximately and directly caused Mrs.

Hilliard to be convicted of murder in the second degree at

the May, 1970 trial or to suffer imprisonment on that

account in view of other substantial variances in the proof

adduced at the two trials.

[13]

3la

Appendix B - District Court Opinion, 11/2/73

and at no time did he go outside the scope of his duties as

Attorney General in directing or commanding or ordering

the investigating officers or witnesses to present false

testimony. He was unwise and acted improperly in allow-

ing the impression to be left that there was no F.B.I. report

bearing upon the existence or non-existence of blood on the

jacket or curtains (even though allegedly "inconclusive").

14, Defendant Williams did not deliberately or willfully

Suppress evidence. He knew about the first report, how-

ever, and should have revealed the substance of this to

Hilliard or her attorney in light of all the circumstances,

as it could well have been considered by the jury to have

been exculpatory.

15. There was considerably more probative evidence

pointing to the guilt of Hilliard beside the alleged blood

stained jacket and curtains. Reasonable inferences could

well have been drawn from all the proof and evidence, pri-

marily circumstantial in nature, indicating that she had

committed the vicious and brutal act in controversy.

16. The aged widow, Vina Price, might apparently have

been produced at the first trial, though she was concedely

feeble-minded and her competence was subject to question.

Whether a year later her physical and mental condition or

physical location would have made her available or of any

assistance at a trial is not known.

17. Plaintiff has failed in her burden to prove that either

defendant willfully either separately or by collusion or con-

spiracy prevented testimony favorable to the accused

Hilliard or acted

13. During the proceedings in question defendant Williams

was acting within the scope of his duties as Attorney General

32a

Appendix B - District Court Opinion, 11/2/73

[14]

fraudulently in order to "frame" or unjustifiably attempt

to convict the accused Hilliard. She has also failed in

her burden to prove that the acts of the defendants, if and

whether mistaken, negligent, or deceitful, were the direct

and proximate cause of her conviction and confinement.

Under all the circumstances, plaintiff is awarded nomi-

nal damages of $1.00 as to both defendants, Clark and

Williams, despite the failure to establish willful, deliberate

and fraudulent concealment of evidence or perjury, and the

failure to show that such mistaken or improper acts as

and if involved on the part of either defendant were a direct

and proximate cause of any imprisonment or damages.

Plaintiff's civil rights have not been demonstrated to

have been violated by defendants in reasonable relationship

to any showing of damages.

Costs of the cause are assessed against defendant

Williams.

This 2nd day of November, 1973.

HARRY W. WELLFORD

UNITED STATES DISTRICT COURT JUDGE

33a

Appendix B - District Court Opinion, 11/2/73

Footnote” The following questions and answers were

elicited from Clark: (pp. 51, 56, 63 and 64,

Tr.)

Q 66 Did you proceed to inspect the living room

furniture then?

A Yes sir, I found what looked to be blood stains

on the arm of the arm chair, on the north

side of the house, sort of behind the stove, —

Q 67 All right, go ahead?

A Also found blood stains on the floor in front

of the chair, and some on the curtains behind

the stove, then on the back of the couch on

the north wall of the living room, the wall

looked wet, as if it had been washed behind

the couch there.

Q 110 Was that the way she was dressed when you

took the picture of her?

A Yes, that was made at the jail.

Q 111 What kind of coat is that?

A A blue nylon windbreaker type coat.

Q 112 All right, did you find any blood stains on

that?

A Yes sir, I found some spots on it.

Q 113 What did they appear to be?

A They appeared to be blood stains.

Q 114 Where were they?

32a

Appendix B - District Court Opinion, 11/2/73

[14]

fraudulently in order to "frame" or unju: ifiably attempt

to convict the accused Hilliard. She has also failed in

her burden to prove that the acts of the defendants, if and

whether mistaken, negligent, or deceitful, were the direct

and proximate cause of her conviction and confinement.

Under all the circumstances, plaintiff is awarded nomi-

nal damages of $1.00 as to both defendants, Clark and

Williams, despite the failure to establish willful, deliberate

and fraudulent concealment of evidence or perjury, and the

failure to show that such mistaken or improper acts as

and if involved on the part of either defendant were a direct

and proximate cause of any imprisonment or damages.

Plaintiff's civil rights have not been demonstrated to

have been violated by defendants in reasonable relationship

to any showing of damages.

Costs of the cause are assessed against defendant

Williams.

This 2nd day of November, 1973.

HARRY W. WELLFORD

UNITED STATES DISTRICT COURT JUDGE

33a

Appendix B - District Court Opinion, 11/2/73

Footnote” The following questions and answers were

elicited from Clark: (pp. 51, 56, 63 and 64,

Tr.)

Q 66 Did you proceed to inspect the living room

furniture then?

A Yes sir, I found what looked to be blood stains

_ On the arm of the arm chair, on the north

side of the house, sort of behind the stove, —

Q 67 All right, go ahead?

A Also found blood stains on the floor in front

of the chair, and some on the curtains behind

the stove, then on the back of the couch on

the north wall of the living room, the wall

looked wet, as if it had been washed behind

the couch there.

Q 110 Was that the way she was dressed when you

took the picture of her?

A Yes, that was made at the jail.

Q 111 What kind of coat is that?

A A blue nylon windbreaker type coat.

Q 112 All right, did you find any blood stains on

that? °

A Yes sir, I found some spots on it.

Q 113 “What did they appear to be?

A They appeared to be blood stains.

Q 114 Where were they?

CROSS EXAMINATION OF DON CLARK, BY MR. MADDOX:

Q 59

34a

Appendix B - District Court Opinion, 11/2/73

They were on the right tail of the coat, right

front of the coat.

Did you have the curtains analyzed?

I sent them off to the F.B.I. lab and they

aren't back yet.

You don't have the curtains back?

No sir.

[page two]

Let's talk about this jacket, —you put in some

very dangerous evidence against the defendant,

by saying she had bloodstains on her jacket

—do you know they were blood stains?

I said they looked like blood stains.

How large were they, Mr. Clark?

They were small—

Mr. Clark, where is that jacket today?

At the F.B.I. lab in Washington.

Why didn't you make it available here for us

so that the jury could see those spots on that

jacket and determine if it was blood?

They just didn't send it back.

Have you had any reports that there was hu-

man blood on that jacket?

No, not at this time.

35a

Appendix B - District Court Opinion, 11/2/73

But you don't know what was on that jacket do

you?

No, just what it looks like, —

Do you know if that was blood stains or not?

Not through a chemical analysis I wouldn't

know, —

So you do not know?

No sir, I don't.

The following were elicited from Sheriff Akin

(pp. 114, 116, 117 and 118, Tr.):

Did you take any scrapings off the spot that

you saw in there that you have identified as

blood spots?

No sir, I did not.

Do you know what that spot was?

It looked to me like it was blood.

[page three]

Do you know?

No sir, —

You have no laboratory report telling you

what it is?

No sir, and I still wouldn't know if they gave

me a report, —but it looked like blood.

All right, just describe this jacket that Onie

Lee was wearing?

36a

Appendix B - District Court Opinion, 11/2/73

There was blood spots on the right side of

the jacket.

They appeared to be blood stains to you?

Yes sir.

RE-CROSS EXAMINATION BY MR. MADDOX:

Where is that jacket today?

Mr. Clark sent it to the F.B.I.

Why don't you have it here to show this jury,

so they can look at those spots, and see as

to whether or not they were blood or not?

It hasn't come back, —sometimes things get

delayed, Mr. Maddox, we wanted it back, —

but we didn't get it back.

Now, Sheriff, I challenge that statement —

I challenge you to get that jacket, —

Gen. Williams: Your Honor, please, I am

going to object to that, —he has explained

that the jacket has gone to Washington and

hasn't got back, —we have no control, —

Mr. Maddox: Your Honor, at this time I

am going to ask

[page four]

for a continuance of this trial until that jacket

gets back, —I think it is most material evi-

dence in this case, —I have seen the jacket

and I know what the evidence is, —

37a

Appendix B - District Court Opinion, 11/2/73

The Court: If you have seen the jacket you

can testify here, as to what you have seen,

——no | am not going to continue this case.

Mr. Maddox: Your Honor, please, I believe

it is most prejudicial to, —this defendant, —

it isopinion evidence and is not admissible

in the first place, —

The Court: Well, he can testify as to what

he saw and you can testify as to what you saw,

Mr. Maddox: Your Honor is not going to put

me in a position to have to testify in a case

that I am trying, —

The Court: If you saw it and desire to do so

Iam going to let you do so, —I am not going

to continue this case, —

Mr. Maddox: Apparently the State, Your

Honor, please is hiding some evidence some -

where, —

Mr. Lassiter: If the Court please, [| object

to that statement, —I ask the Court to instruct

the jury that this is, —

The Court: Gentlemen, lets disregard that

last remark, —that is something that you can

argue to the jury if you want to.

40a

Appendix C - C.A. 6 Opinion, 6/28/72

rulings on the objections made during trial; the im-

pact of this testimony does enter into our decision.

The proof offered by the State relative to this blood

was circumstantial as was all the other. But here

there was an opportunity to make available to the jury

direct proof, in the face of the defendant's testimony

that the blood was that of a hog, that would have sup-

ported one theory and discredited the other. Either

the blood was human or swine. If it had been estab-

lished as human, this would have left little room for

doubt that the defendant was not telling the truth in her

explanation of how she got blood on her clothing. If

it developed that the blood was from a hog, this would

have proved conclusively that she was telling the truth,

in this particular at least.

"Certainly the two hypotheses suggested by the proof

of blood on the jacket — one tending strongly to

[fol. 3] suggest guilt, the other tending to support the

theory of the defendant —are equally reason -

able. In its present condition the evidence offered by

the defendant buttressed by the presumption of innocence

never overcome by sufficient proof preponderates against

the verdict."

Following her acquittal at the second trial, Mrs. Hilliard

filed the present civil action for damages against the Dis-

trict Attorney General. Jurisdiction is asserted both on

the ground of diversity of citizenship and under-the civil

rights act, 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3).*

The District Attorney General filed a motion to dismiss

pursuant to Rule 12(b)(6), Fed. R. Civ. P. for failure to

1 The other defendant is the Resident Agent of the Tennessee Bureau of

Investigation, who filed an answer in the District Court. He is not a party

on this appeal.

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Appendix C - C. A. 6 Opinion, 6/28/72

state a claim on which relief can be granted. The Dis-

trict Court sustained this motion, holding that the Dis-

trict Attorney General is immune from civil liability.

We reverse, hoiding that the District Court erred in rul-

ing that the complaint does not state a claim on which

relief can be granted.

This is an interlocutory appeal under 28 U.S.C. §1292(b).

The District Court certified that the order of dismissal

involves a controlling question of law as to which there is

substantial ground for difference of opinion and that an

immediate appeal may matefially advance the ultimate

termination of the litigation. The District Court also

directed the entry of final judgment as to the District

Attorney General making an express determination that

there is no just reason for delay. Rule 54(b), Fed. R.

Civ. P. This court granted leave to appeal.

Our reversal is based entirely upon the factual aver -

ments of the complaint, which are summarized herein-

after in this opinion. These averments must be treated

as true for purposes of this appeal and are viewed in the

light most favorable to Mrs. Hilliard. Lucarell

[fol. 4] uv. McNair, 453 F.2d 837 (6th Cir. 1972),

L'Orange v. Medical Protective Society, 394

F.2d 57, 59 (6th Cir. 1968). "In appraising the sufficiency

of this complaint we follow, of course, the accepted rule

that a complaint should not be dismissed for failure to

state a claim unless it appears beyond doubt that the plain-

tiff can prove no set of facts in support of [her] claim

which would entitle [her] to relief." Conley v. Gibson,

355 U.S.41, 45-46 (1957).

The complaint avers that Mrs. Hilliard is a citizen of

Indiana; on or about December 24, 1969, she arrived in

Carroll County, Tennessee, to visit her maternal aunt,

42a

Appendix C - C.A. 6 Opinion, 6/28/72

Vina Prince, and the aunt's husband, Ernie Prince; the

purpose of her visit was to assert and settle her claim to

a one-half interest in certain real estate inherited from

her grandmother; Ernie Prince had operated the land for

many years and had claimed ownership from time to time;

on February 19, 1970, Ernie Prince was killed and Mrs.

Hilliard was arrested and charged with his murder.

The complaint further states that at the time of her

arrest Mrs. Hilliard was wear ing a blue nylon jacket

which the officers claimed was stained with the blood of

Ernie Prince; the victim was murdered by two vicious

axe blows to the skull, and the body thereafter was dragged

to the rear of the house and shot in the mouth with a shot

gun. Mrs. Hilliard asserted that when she was arrested

there was no blood on her jacket, but if there were any

such stains it was hog blood from preparing raw meat.

The complaint asserts that circumstantial evidence

pointed the finger of guilt to Vina Prince, who is insane.

The opinion of the State Court of Criminal Appeals pointed

out that Mrs. Prince was not available as a witness, due

to her mental condition. The court commented:

"It is regrettable that she was not available as a wit -

ness ... Since there is no doubt that this woman was

present before, during, and after the assault of the

deceased, her potential as a witness is quite

{fol. 5] evident. She could have witnessed the crime

or have committed the crime herself."

It is averred that the only probative material evidence

against Mrs. Hilliard was the allegedly blood stained

jacket and some alleged blood stained curtains; that the

jacket and curtains we -e sent to the FBI laboratory in

Washington, D.C., for analysis; that the FBI report

432

Appendix C - C.A. 6 Opinion. ../28 72

was negative as to human blood, or uy viood, being on

either the jacket or the curtains; ' .at the District Attorney

General saw the FBI report well in advance of the trial and

was familiar with its contents; that neither the FBI report

nor the jacket and curtains were made available to be in-

troduced in evidence at the trial; that the contents of the

FBI report were never divulged to Mrs. Hilliard or her

attorney; instead, it was claimed by the prosecution that

the jacket and curtains had been resubmitted to the FBI

on April 28, 1970, at a time when the trial already had

been set for May 15, 1970, too late for themto be re-

turned in time for introduction in evidence; that the Dis-

trict Attorney General produced evidence before the jury

to the effect that the spots on the jacket and curtains

“looked like" or "appeared to be" blood stains, in spite

of the FBI report that there were no blood stains; that

the District Attorney General suppressed and concealed

the positive proof that there was no blood on either the

jacket or curtains; and that if the FBI report had been

introduced into evidence, Mrs. Hilliard would have been

acquitted at her first trial, as she was at the second.

The complaint further contains these averments:

"22. That in the preparation of the case, the De-

fendant Williams advised or suggested or implied by

some means that the witness Defendant Clark and per -

haps others, should not mention anything about the

first report of March 28, 1970, and that the Defendant

Clark and other witnesses followed his instructions and

answered both direct examination questions and cross-

examination questions evasively, deliberately

[fol. 6] misleadingly, with half truths and in instances

falsely, to carry out the complete suppression

of the report of negative blood analysis of the items.

44a

Appendix C - C. A. 6 Opinion, 6/28/72

"23. That the Defendant Williams to carry out his

intention of concealing and suppressing the report, con-

trary to any interpretation of good practice, and know-

ing that the defense expected the production of the jacket

and report of the examination thereof for human blood,

the Complainant insisting that there was no blood or if

blood then animal blood, not human, announced that the

State was ready for trial, well knowing he was not go-

ing to offer the jacket or curtains or the report, and

that once the trial had commenced, the Complainant's

defense counsel could not obtain the jacket or any re-

port intime to use it for defense evidence in the trial,

and thus suppressing and concealing the evidence which

would acquit the Complainant.

"24, That the Defendant Williams when the Com-

plainant's defense counsel demanded the production of

the jacket, or a continuance until it could be produced,

knowingly and deliberately advised the Court that through

no fault of the State or prosecutors the jacket was not

immediately available, as a witness had testified, when

he knew or should have known by diligent inquiry that

the same was in the T.B.I. office in Nashville, and

would have required only two and one-half (2-1/2) hours

to be available, and he well knew that the jacket was

deliberately sent off on such a late date that its return

by trial date was impossible, and he knew of the ma-

teriality of the jacket and report and should have an-

nounced its unavailability before commencement of the

trial, and by these actions suppressed and concealed

the evidence of the jacket and report favorable to the

Complainant.

"25. That the Defendant Williams knowingly pro-

cured and allowed witnesses such as the Defendant

45a

Appendix C - C,A. 6 Opinion, 6/28/72

Donn Clark and perhaps others to mislead and deceive

the Jury, Court, and criminal Defendant and her counsel,

when he was aware of stronger evidence than

[fol. 7] that elicited from his witnesses, which was

favorable to the criminal defendant, and failed

and refused to reveal the favorable evidence and allowed

the evidence he knew to be false to form the basis of

the Complainant's conviction of murder in the second

degree.

"26. That both Defendants continued to suppress

and conceal the report from the Complainant's defense

counsel, after the trial was concluded, knowing that

the same would constitute a basis for a new trial for

the Complainant and only disclosed the report when

compelled by the opinion of the Court of Criminal Ap-

peals which required that they do so, then revealing

the same for the first time the 20th day of April, 1971.

"27. That the Defendants and each of them, by the

suppression and concealment, and by trickery, deceit,

fraud, unethical practices and conduct for a public of-

ficial, contrary to their oath of office and in violation

of the Defendant's right to a fair trial and due process,

were the direct and proximate cause of the Complainant

being illegally and unlawfully confined in either the

Carroll County Jail or the State Women's Prison in

Nashville, and wrongfully deprived of her liberty and

freedom, and further the direct and proximate cause

of unbelievable mental pain and anguish as a result of

being unlawfully and wrongfully imprisoned and branded

forever as a convicted murderess, suffered day and

night behind prison bars and of her earnings during

the period of illegal confinement, which is not yet at

an end, but which commenced May 12, 1970.

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Appendix C - C.A. 6 Opinion, 6/28/72

"28. That thereafter, beginning on the 12th day of

May, 1971, the complainant was retried in the Circuit

Court of Carroll County, Tennessee, on the charge of

murder, the said re-trial being concluded on May 13,

1971, by a jury verdict of not guilty.

"29. That the complainant and her counsel on that

re-trial had the use and benefit, knowledge, and proba -

tive evidentiary document and report dated

{fol. 8] March 26, 1970, from the F.B.1. Laboratory,

to the effect that their scientific examination

revealed no evidence of any blood, of any kind, human

or animal, and in the said re-trial all material aspects

of the proof were the same except as to the said report.

* * *

"32. That the defendants individually, and jointly,

by conspiring, combination, consort and agreement did

conspire for the purpose of depriving either directly or

indirectly, the complainant of the equal protection of

the laws and of equal privileges and immunities under

the laws; and under color of a state statute, ordinance,

regulation, custom and uSage of the State of Tennessee,

caused the complainant to be subjected to the depriva-

tion of her rights, privileges and immunities secured

by the Constitution and laws of the United States, and

while so doing were acting under color of state au-

thority, and outside the scope of the jurisdiction of

their respective offices, and without authority of law

and that such actions were calculated or did, in fact,

subject the complainant to a deprivation of her con-

stitutional right to a fair trial and due process of law,

and were the direct and proximate cause of the injuries,

damages, wrongs and loss of liberty and freedom from

May 13, 1970, to May 13, 1971, and as set out above.”

47a

Appendix C - C, A. 6 Opinion, 6/28/72

It is well settled that a prosecuting attorney, when act-

ing in his official capacity, is immune from suit for dam-

ages, provided that his acts are within the scope of his

jurisdiction and authorized by law. Peek v. Mitchell,

419 F.2d 575, 578 (6th Cir. 1970); Huribut v. Graham,

323 F.2d 723, 725 (6th Cir. 1963); Kenny v. Fox, 232

F.2d 288, 290 (6th Cir. 1956). See also Kaufman v.

Moss, 420 F.2d 1270 (3rd Cir. 1970).

However, the immunity of a prosecuting attorney from

civil liability is not absolute:

"[A] quasi-judicial officer, such as a prosecuting at -

torney, who acts outside the scope of his jurisdiction

and without authorization of law, cannot shelter

{fol. 9] himself from liability by the plea that he is act-

ing under color of office," Lewis v. Brauti-

gam, 227 F.2d 124, 129 (Sth Cir. 1955).

In McCray v..State of Maryland, 456 F.2d 1, 3 (4th Cir.

1972) the court said: |

“The immunity of quasi-judicial officers such as

prosecuting attorneys and parole board members de-

rives, not from their formal association with the ju-

dicial process, but from the fact that they exercise a

discretion similar to that exercised by judges. Like

judges, they require the insulation of absolute immunity

to assure the courageous exercise of their discretionary

duties. Where an official is not called upon to exer -

cise judicial or quasi-judicial discretion, courts have

properly refused to extend to him the protection of ab-

solute judicial immunity, regardless of any apparent

relationship of his role in the judicial system." (Foot

notes omitted)

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Appendix C - C.A. 6 Opinion, 6/28/72

To like effect see: Madison v. Purdy, 410 F.2d 99,

101 (Sth Cir. 1969); Robichaud v. Ronan, 351 F.2d 533

(9th Cir. 1965). Cf. Lucarell v. McNair, 453 F.2d 837

(6th Cir. 1972); Lynch v. Johnson, 420 F.2d 818 (6th Cir.

1970); Manning v. Ketcham, 58 F.2d 948 (6th Cir. 1932).

See also the order of the Supreme Court denying appli-

cation for mandamus and certiorari in Garrison v. Brown,

—vU.S.—, 10Cr. L. 4226, March 20, 1972, involving

an action for civil damages against District Attorney Jim

Garrison of New Orleans for his prosecution of Clay Shaw

on the charge of conspiring to assassinate President John

F, Kennedy.

The Code of Professional Responsibility adopted by the

American Bar Association contains the following provisions

with respect to the duties of a public prosecutor:

"EC 7-13 The responsibility of a public prosecutor

differs from that of the usual advocate; his duty is to

seek justice, not merely to convict. This sepcial duty

exists because: (1) the prosecutor represents

[fol. 10] the sovereign and therefore should use restraint

in the discretionary exercise of governmental

powers, such as in the selection of cases to prosecute;

(2) during trial the prosecutor is not only an advocate

but he also may make decisions normally made by an

individual client, and those affecting the public interest

should be fair to all; and (3) in our system of criminal

justice the accused is to be given the benefit of all rea-

sonable doubts. With respect to evidence and witnesses,

the prosecutor has responsibilities different from those

of a lawyer in private practice; the prosecutor should

make timely disclosure to the defense of available evi-

dence, known to him, that tends to negate the guilt of

49a

Appendix C - C.A. 6 Opinion, 6/28/72

the accused, mitigate the degree of the offense, or re-

duce the punishment. Further, a prosecutor should

not intentionally avoid pursuit of evidence merely be-

cause he believes it will damage the prosecution's case

or aid the accused."

"DR 7-103 Performing the Duty of Public Prose-

cutor or Other Government Lawyer.

(A) A public prosecutor or other government lawyer

shall not institute or cause to be instituted crimi-

nal charges when he knows or it is obvious that

the charges are not supported by probable cause.

(B) A public prosecutor or other government lawyer

in criminal litigation shall make timely disclosure

to counsel for the defendant, or to the defendant

if he has no counsel, of the existence of evidence,

known to the prosecutor or other government

lawyer, that tends to negate the guilt of the ac-

cused, mitigate the degree of the offense, or re-

duce the punishment, "

We hold that factual averments of the complaint as sum-

marized above, considered in a light most favorable to

plaintiff, charge the District Attorney General with acts

which were outside his quasi-judicial capacity

[fol. 11] and beyond the scope of "duties constituting an

integral part of the judicial process." We are

not willing to extend the doctrine of quasi-judicial immunity

to a complaint charging deliberate supression of an FBI

laboratory report establishing the innocence of the defend-

ant.

Nothing in this opinion is intended to express any view

as to the merits of the case, which cannot be determined

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Appendix C - C.A. 6 Opinion, 6/28/72 |

without an evidentiary hearing. We do no more than hold

that the District Judge erred in dismissing for failure to

state a claim on which relief can be granted.

Reversed and remanded.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.