Mistrial declared as jurors disavow verdicts
The case for damages for wrongful imprisonment takes a surprising turn
An article from the Des Moines Register

(December 15, 2012) A federal judge on Friday declared a mistrial in the case of two Omaha men who improperly spent 25 years in prison for a 1977 murder — after a jury announced verdicts in the case, only to have several jurors disavow them in open court.

Terry Harrington and Curtis McGhee together had sought $115 million from the city of Council Bluffs and two police detectives who they alleged coerced witnesses in a bid to frame them for the shooting death of a retired police captain.

Jurors in Des Moines heard roughly five weeks of testimony in the nine-year-old lawsuit and deliberated another week before the verdicts were announced shortly before noon Friday.

The verdicts, as read in court, were for the defendants — apparently rejecting arguments that former detectives Lyle Brown and Dan Larsen had decided to pin the slaying of John Schweer on two black teenagers after police inadvertently let the real killer go.

But when jurors then were polled in court on the question of whether this was, in fact, their verdict, three answered, “No.”

U.S. District Judge Robert Pratt immediately declared a mistrial.

“Sometimes a mistrial is the best work a jury can do,” the judge told jurors. “I can tell by looking at you that you’re exhausted. I don’t want you to leave here feeling bad about your work.”

Lawyers for the city of Council Bluffs and the detectives were not present when the verdicts were read Friday. Lawyers for Harrington and McGhee, who expressed shock in court, later promised that the case will be retried.

“We are utterly baffled,” Harrington attorney Gerry Spence said after jurors were excused. “Particularly in view of the fact that I thought we had a very careful jury.”

The plaintiffs contended throughout the trial that Larsen and Brown let Schweer’s real killer get away in 1977 when they gave a polygraph test to Charles Gates and told him that Gates was a suspect in Schweer’s death. When Gates disappeared, plaintiffs argued, the detectives’ focus turned to a group of black car thieves that included Harrington and McGhee.

Lawyers argued that the detectives coerced supporting characters and coached star witness Kevin Hughes until they were able to pin the murder on two black teens.

Defense lawyers, who refused to concede that Harrington and McGhee are innocent of the shooting, denied any attempt by Council Bluffs to hide police reports that focused on Gates as a suspect. Attorneys blamed Pottawattamie County prosecutors for failing to turn over the Gates documents to defense attorneys in 1978. Pottawattamie County, without admitting wrongdoing, settled its portion of the lawsuit for $12 million in 2009.

Harrington and Mc­Ghee were freed from prison in 2003 after the Iowa Supreme Court found they had been denied a fair trial. The Gates reports went undiscovered for over two decades until a prison barber found them in Council Bluffs police files.

Council Bluffs lawyers argued last week that the former detectives followed reasonable leads in narrowing the case to Harrington and McGhee and never fabricated evidence.

On Friday, lawyers initially believed jurors to have been stymied by a section of the verdict form that required them to decide exactly what improper conduct had been performed by the two detectives. Jurors were asked to decide whether the defendants faked evidence, recklessly or intentionally failed to pursue leads pointing elsewhere, knowingly used false or unreliable information against the plaintiffs, or intentionally failed to turn over exculpatory evidence to lawyers for Harrington and McGhee before their original trial.

According to jury instructions, the question to be answered twice for both Brown and Larsen (once for Harrington and once for McGhee) was whether “the defendant deprived the plaintiff of his right to substantive due process by engaging in one or more of the following acts leading to plaintiff’s arrest.”

Lawyers say that, to find a defendant liable, the jurors had to all agree that defendants had performed at least one of the four acts — but not necessarily more than one.

“I don’t know if they thought they had to be unanimous on all of them … . For some reason it just seems confused to me,” said McGhee attorney Stephen Davis.

Jurors throughout the week had submitted four questions to the judge, at least three of which dealt with questions about unanimity.

When court was convened Friday, the jury foreman seemed uncertain how to answer Pratt’s question of whether jurors had reached a unanimous verdict. Plaintiff lawyers pondered the matter with Pratt while jurors went back to their deliberation room. “Counsel, I’ve never had this happen before,” said Pratt, who was appointed as a judge in 1997.

In the resulting discussion, Spence surmised that jurors had reached unanimous verdicts but that they weren’t unanimous on all four possible ways Larson and Brown were accused of violating his clients’ rights.

“I think the danger is we get so concerned about what we’re doing that we really screw it up,” Spence said in court.

The verdict leaves intact Spence’s record of not losing a civil case since 1969.

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