PHILADELPHIA – A federal judge has granted a motion to dismiss claims lodged against a former Philadelphia District Attorney and an Assistant District Attorney, in the civil rights violation case of a man who argues he was erroneously convicted of three murders, for which he served 28 years in prison.
Theophalis “Binky” Wilson first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on May 4, 2021 versus the City of Philadelphia, Philadelphia Police Department and numerous retired police officers and attorneys who assisted in his prosecution.
On Sept. 25-26, 1989, three individuals, Kevin Anderson, Gavin Anderson, and Otis Reynolds, were shot and killed within a two-mile radius of each other. During the initial investigation of these murders, officers determined that the victims were all likely associated with the Jamaican Shower Posse, a gang that was feuding over drug territory with another operation, the Junior Black Mafia.
However, no suspects were arrested for two years. Subsequently, an informant named James White was allegedly coerced into implicating plaintiff in these murders, including by providing Wilson’s name and identifying him in a series of photographs. As a result of James White’s identification and allegedly no other evidence, Wilson was convicted of the trio of murders.
According to Wilson, 23 separate individuals and/or entities were individually and collectively responsible for his alleged wrongful prosecution, conviction and incarceration.
Defendants former Det. Frank Margerum, former Det. Richard Harris, former Officer Kevin Hollinshead and the City of Philadelphia moved to dismiss Wilson’s amended complaint on Feb. 7, 2022, finding that few paragraphs of Wilson’s 330-paragraph filing pertained to them in any way.
The City felt that the claims levied against it should too be dismissed, on similar grounds.
Defendants Jastrzembski and Santiago filed a motion to stay their involvement in the action on March 2, 2022. The following month, U.S. District Court for the Eastern District of Pennsylvania Judge John M. Younge granted the motion in part, and denied it in part.
On March 31, Younge granted the dismissal motions of defendants City of Philadelphia, Frank Margerum, Richard Harris, Kevin Hollinshead, John Grier and the Estate defendants – and further found that the dismissal motions of defendants Former Assistant District Attorney David Desiderio and Former District Attorney Lynne Abraham were denied as moot, in light of the plaintiff’s filing of an amended complaint.
Younge further ruled that the City of Philadelphia is entitled to qualified immunity with respect to the plaintiff’s state law claims for malicious prosecution and intentional infliction of emotional distress – but with respect to defendant Grier, Younge allowed the latter claim to proceed as since “extraordinary circumstances – in the form of wrongful incarceration and conviction – prevented the plaintiff from asserting this claim [within the two-year statute of limitations].”
UPDATE
Defendants Abraham and Desiderio filed a motion on April 12 to dismiss a number of counts leveled against them in the complaint, including for malicious prosecution, failing to conduct a proper investigation and denial of due process rights.
Abraham and Desiderio cited absolute immunity as a bar to the plaintiff’s claims. Specifically, they pointed to (1) absolute prosecutorial immunity as applied to defendant Desiderio’s alleged fabrication and coercion of White’s confession; (2) supervisory liability as applied to defendant Abraham; and (3) absolute immunity as applied to the state law tort claims asserted against defendants Desiderio and Abraham.
On Aug. 11, Younge issued a memorandum opinion which granted their dismissal motion.
“If this Court were to decide that plaintiff could assert constitutional violations in connection with White’s alleged fabricated and coerced confession, it would create a situation in which the prosecutor would be absolutely immune from any claims made by White, but could be held liable for claims made by plaintiff – i.e., a third-party – for the very same acts. This Court declines to open Pandora’s box – especially given the policy concerns around the chilling effect that such a decision would have on prosecutors going forward. Though the allegations in this case are troubling and concerning, the U.S. Supreme Court and the Third Circuit have reasoned with the policy trade-offs and considerations and have opted to uphold the doctrine of absolute prosecutorial immunity,” Younge stated.
“Considering this precedent, this Court finds that defendant Desiderio’s alleged fabrication and coercion of White’s confession is ‘prosecutorial’ activity that is absolutely protected. As eloquently explained by the Seventh Circuit in Buckley v. Fitzsimmons, obtaining the coerced confession would have violated White’s rights (and plaintiff could not assert a violation of White’s rights as a third-party), and the use of White’s coerced confession could violate plaintiff’s rights but would still be covered by absolute immunity. Thus, the constitutional claims against defendant Desiderio must be dismissed with prejudice on the basis of absolute prosecutorial immunity.”
As to the supervisory liability claim against defendant Abraham, Younge found that she was similarly immune.
“Given that this Court has determined that defendant Desiderio is entitled to absolute immunity in connection with his alleged fabrication and coercion of White’s confession, then this necessarily means that defendant Abraham is similarly immune from any supervisory liability. This Court declines to adopt such a rigid reading (as found in the U.S. Supreme Court case Van de Kamp v. Goldstein) – as the spirit of the pronouncement seemingly suggests that conduct that constitutes ‘prosecutorial’ activity (more generally) would entitle the supervising attorney/the district attorney to absolute immunity,” Younge said.
“Further, the U.S. Supreme Court illuminated the practical concerns and anomalies that would arise, if a court were to find that a prosecutor’s conduct was immune, while their supervising attorney/the district attorney could still be held liable for negligent training or supervision in connection with said conduct. Taken together, this Court declines to create such an anomaly by finding defendant Desiderio’s conduct immune, while then concluding that defendant Abraham’s alleged participation in the same conduct or her failure to properly train or supervise would expose her to potential liability and civil damages. Thus, the claims against defendant Abraham must be dismissed with prejudice on the basis of absolute prosecutorial immunity as well.”
Regarding the remaining state law tort claims for malicious prosecution and intentional or reckless infliction of emotional distress against Abraham and Desiderio, Younge ordered that they too must be dismissed, since the pair were participating in “protected” prosecutorial activity.
“For the foregoing reasons, defendants Former Assistant District Attorney David Desiderio and Former District Attorney Lynne Abraham’s motion to dismiss plaintiff’s amended complaint is hereby granted. Plaintiff Theophalis Wilson will not be granted leave to amend his claims – as any attempt to amend would be futile given that absolute prosecutorial immunity bars his various claims against defendants,” Younge ruled.
The plaintiff is represented by Alana M. McMullin, Kimberly K. Winter and Michael J. Abrams of Lathrop & Gage in Kansas City, Mo., plus Francesco P. Trapani of Kreher & Trapani, in Philadelphia.
The defendants are represented by Danielle E. Walsh of the City of Philadelphia’s Law Department, Joseph J. Santarone of Marshall Dennehey Warner Coleman & Goggin, Fortunato N. Perri Jr. of McMonagle Perri McHugh & Mischak, Alison J. Guest of the Philadelphia District Attorney’s Office, plus Joseph Zaffarese and Katelyn Lori Mays of Ahmad Zaffarese, all also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-02057
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com