United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL UNITED STATES DISTRICT JUDGE.
matter comes before the court on the “Motion in
Limine Number Sixteen: To Exclude Any Reference to the
LaRoye Hunter Case” [Doc. #226] of defendant the City
of Tulsa. For the reasons discussed below, the motion is
granted in part and denied in part.
First Amended Complaint, Ms. Murphy alleges she was
wrongfully convicted for the murder of her infant son, Travis
Wood. Her conviction was vacated by an agreed order entered
in state district court in 2014. She served twenty years of a
sentence of life without parole.
Murphy now asserts a claim for relief pursuant to 42 U.S.C.
§ 1983, alleging violations of her right to a fair trial
under the Due Process Clause of the Fourteenth Amendment on
seven (7) enumerated grounds, including deficiencies in the
Tulsa Police Department's (“TPD”) training,
supervision, and policies and procedures, and of her right
not to incriminate herself under the Fifth Amendment based on
her interrogation by detective Mike Cook. In support, Ms.
Murphy alleges, in part, as follows:
Approximately five years earlier, Cook interrogated an
[sic] 17 year old in a murder case, threatening and
yelling at him (hereafter the “Earlier Case”).
This interrogation produced a confession, even though the 17
year old had been interrogated earlier that day by other
police officers and denied any involvement in 32 pages of
transcribed statement. After 40 minutes in Cook's hands,
he confessed. Cook denied, but the judge believed, Cook
threatened the juvenile and used racial slurs and obscenities
in the unrecorded portion of Cook's interrogation alone
with the juvenile. Associate District Judge Bill Beasley
suppressed the confession in 1994, noting how infrequently he
did that. The Tulsa World ran a story on 8-31-94
concerning Judge Beasley's suppression of the confession,
reciting the facts set forth just above. When the charge was
dismissed, on 9-1-90, the Tulsa World ran another
story reciting the same reasons for suppression of the
confession. With the publication of those two articles,
alone, the Final Policymaker for the TPD had constructive
notice of Cook's improper interrogation techniques.
Cook's actions in the Earlier Case involved lying to the
court about the methods he used to obtain a confession in a
homicide case. The Final Policymaker thereby knew he had an
officer on his hands who would do anything to frame a person
in a homicide case, not just lie in court. A police officer
who lies in court and obtains confessions by Unconstitutional
methods, by definition, has pronounced proclivities for the
pusillanimous pursuit of power. In short, he is a power
maniac. And if immediate termination is not required, then
the closest possible supervision, extensive training, and
thorough policies are required if that officer is allowed to
work on homicide cases in the future. Cook being allowed to
proceed in Michelle's case, and do the same thing he did
in the earlier case, is a ratification and endorsement of
Cook's conduct, without more.
After the Earlier Case, in light of Cook lying under oath in
court, trying to frame someone in a murder case, and usage of
techniques for interrogation long since banned by the United
States Supreme Court, the need for action concerning Cook
serving in the future as investigator, lead investigator or
interrogator was “so obvious, and the inadequacy so
likely to result in the violation of Constitutional rights,
that the [Chief of Police and the Head of the Homicide
Bureau] can reasonably be said to have been deliberately
indifferent to the need.”
The Earlier Case put the Final Policymaker on notice that TPD
needed policies, training and supervision, on a general
basis, to prevent its interrogators from engaging in the
conduct described by the suspect in the Earlier Case. That
case also put TPD on notice of the necessity of videotaping
or audio taping the entirety of an interrogation, at least in
a first degree murder or other types of homicide cases, given
their possible punishments. The Final Policymaker's
failure to take action to put in place adequate policies,
training and supervision, at least in first degree murder or
other types of homicide cases was deliberately indifferent to
the need to have same.
[Doc. #36, ¶¶ 58, 246, 390, and 403]. The
“Earlier Case” refers to State of Oklahoma v.
LaRoye C. Hunter, III, Tulsa County Case No.
CF-1989-5196. (“Hunter Case”). In 1989, LaRoye
Hunter was charged with Murder, First Degree and Arson, First
Degree in the District Court of Tulsa County. [Doc.
#175-50]. At the time he was charged, Mr. Hunter was
seventeen (17) years old. Mr. Cook participated in Mr.
Hunter's interrogation, and was present when Mr. Hunter
confessed. However, Mr. Hunter's confession was
subsequently suppressed, and the charges against Mr. Hunter
were dropped. Prior to the charges being dropped, Mr. Hunter
was represented by then-Tulsa County Public Defender Loretta
City of Tulsa moves to exclude “any evidence or mention
of” the Hunter Case, arguing that no admissible
evidence exists as to the reason behind the suppression of
Hunter's confession and, therefore, the Hunter Case is
irrelevant to the issues presented in this matter. In
response, Ms. Murphy cites deposition testimony taken in this
case of Ms. Radford, together with newspaper articles dated
August 1, 1990 from the Tulsa World and Tulsa
Tribune, and argues that these items are admissible for
five separate reasons: (1) impeachment of Mr. Cook
(subsection II.B., II.C., II.E., and II.H.); (2) to
demonstrate Mr. Cook's reputation among his associates
and community as to his character pursuant to Fed.R.Evid.
803(21) (subsection II.D.); (3) to refresh Mr. Cook's
recollection (subsection II.F.); (4) impeachment of retired
Tulsa Police Office Ken Mackinson (subsection II.G.); and (5)
as evidence of the absence of policies, training and
supervision and the presence of deliberate indifference
(subsection II.A.). In reply, the City again asserts that the
Hunter Case is factually distinct from Ms. Murphy's case,
and therefore irrelevant, and that the proffered evidentiary
items are hearsay and speculative.
court will first consider whether the newspaper articles are
hearsay. Federal Rule of Evidence 801 defines
“hearsay” as a statement that “the
declarant dos not make while testifying at the current trial
or hearing, ” and which is offered into evidence
“to prove the truth of the matter asserted in the
statement.” The court agrees that “[g]enerally,
newspaper articles are inadmissible hearsay.”
Reynolds v. City of Poteet, No. 12-CV-1112-DAE, 2014
WL 1355560, at *7 (W.D. Tex. Apr. 4, 2014). However, the
court must examine the “Statements in Ancient
Documents” exception to the rule against hearsay.
Rule of Evidence 803 recognizes twenty-four categories of
statements which are not excluded by the rule against
hearsay, regardless of the availability of the witness.
Pursuant to subsection (16), entitled Statements in Ancient
Documents, “[a] statement in a document that was
prepared before January 1, 1998, and whose authenticity is
established, ” is not excluded by the hearsay rule.
the newspaper articles were prepared before January 1, 1998.
Further, pursuant to Federal Rule of Evidence 902(6),
newspapers and periodicals are self-authenticating. Because
the newspaper articles were prepared before January 1, 1998
and their authenticity is established, the newspaper articles