Court of Appeals Upholds $16 Million Award for Framing Father for Alleged Child Molestation

The case is White v. McKinley (8th Cir. May 17, 2010), and the damages award was $14 million in compensatory damages, $1 million in punitive damages against the plaintiff’s ex-wife, and $1 million in punitive damages against the police officer who was the ex-wife’s secret lover; the ex-wife and the police officer were found to have conspired to hide the relationship, and to get rid of a possibly exculpatory diary written by one of the children. (Naturally, it’s unlikely that the plaintiff will ultimately receive anywhere near the full amount of the damages awards.) Here’s an excerpt from the opinion:

“We recite the facts in the light most favorable to the jury’s verdicts.”

White married Tina in 1991. At that time, Tina had custody of her two children — Jami and Danny — from a previous marriage. White agreed to adopt Jami and Danny, but their biological father initially would not agree to the termination of his parental rights. In 1995, the biological father changed his mind and permitted White to adopt both children. When an acquaintance asked Tina why the children’s biological father agreed to the termination of his parental rights, Tina replied that she had threatened to charge him with child molestation if he did not cooperate. White adopted Tina’s children in January 1996.

Over time, financial difficulties precipitated marital difficulties. The marriage deteriorated in the fall of 1997 and resulted in fights, some of which the children witnessed. On September 24, 1997, while White was gone, Tina and her children packed White’s belongings in garbage bags, put the garbage bags in the garage, and barricaded the entrance from the garage to the kitchen. When White returned home, he broke down the door and went to his bedroom. Tina contacted the Lee’s Summit Police Department (“the police department”) to report that White had broken through the door but added a fictitious story that he shoved her. Because both Jami and Danny were with Tina when she heard the garage door opening, they were present when White entered the kitchen and knew that Tina’s report was false.

A few days after the incident, Nina Morerod, the family’s nanny, saw McKinley at the family’s house. Tina had told Morerod that someone was coming to repair the door. While Morerod was at Tina’s home, two men came to the home to measure the door and prepare an estimate for repair of the broken door frame. Morerod testified that she talked to only one of the men, whom she identified as McKinley. On March 21, 1998, Tina reported to the police department that White had been molesting Jami then age 12, for years. McKinley was assigned as the lead investigator, which was the role that he usually took in sexual abuse investigations for the police department.

During his investigation, McKinley found Jami’s diary. Jami wrote in her diary that White was a good father and that she wished that he would spend more time with her. She also wrote that Tina did not love her the way that she loved her sons and that Tina could not even put her arms around Jami. In the diary, Jami stated that she hated her mother for making her responsible for babysitting her younger brother. The standard practice for a detective who discovers such a writing in the course of investigating child sexual abuse allegations is to seize it and preserve it as evidence. Nevertheless, McKinley failed to seize it. In his police report, McKinley failed to mention that he had read the diary, thereby omitting from the report Jami’s potentially exculpatory statement about White being a good father. Thereafter, the diary disappeared. Prior to the criminal trial, White’s attorney requested that the prosecutor provide the diary as evidence for the defense. Jennifer Mettler, the prosecutor, then called Tina, told her that White wanted the diary, and asked her to get it. Tina subsequently informed Mettler that Jami no longer had the diary. However, Jami contradicted Tina. Jami denied that she was ever asked to look for the diary and did not recall seeing her diary after McKinley had it. According to Jami, Tina knew where Jami kept the diary.

As part of his investigation, McKinley also took the unusual step of meeting with Jami and discussing the sexual abuse allegations with her in advance of the required interview by the Center for Protection and Children (CPC). A meeting between a detective and a child witness before the CPC interview is improper and violates a “very serious” rule for the police department’s detectives. All cases of alleged child molestation in Jackson County are referred in the first instance to the CPC. Detectives must not interview the child until after the CPC exam, as the CPC interviewers are specially trained to take a statement from the child about the abuse allegations. The interview is also videotaped and used as evidence at the criminal trial. The CPC records interviews so that all parties can observe whether the interviewer asked leading questions. For similar reasons, a detective must document his or her contacts with the child and must not have an undocumented meeting with a child. McKinley never disclosed his pre-CPC meeting to the prosecutors.

In June 1998, McKinley disclosed to the police department’s chief of police that McKinley was investigating a child sexual abuse case and had begun a relationship with the mother of the victim. The chief directed McKinley to disclose his relationship with Tina to the prosecutor. McKinley then informed Prosecutor Jill Kanatzar that he had a one-time social encounter with Tina that occurred after charges were filed against White in April 1998. At that time, McKinley did not disclose to Kanatzar that he had actually been on several dates with Tina and was having a sexual relationship with her.

At the end of June 1998, Kanatzar left the prosecutor’s office, and Mettler replaced Kanatzar on the case. During the fall of 1998, near White’s first trial setting, Mettler met with Tina and questioned her about her relationship with McKinley. Mettler asked Tina about “the one or two times” that McKinley and Tina had dated. In response, Tina stated that she and McKinley were presently seriously dating and were planning on marrying. Mettler reported that information to her superiors in the prosecutor’s office. The prosecutor’s office determined that it was unnecessary for Mettler to disclose to the defense the existence of the relationship because, based on McKinley’s and Tina’s representations, “the relationship had not begun until after the case was already filed and charges had been filed.” McKinley and Tina had told Mettler that there was no connection between the two of them prior to the investigation and that the relationship did not start until after the investigation was completed. They had also told Mettler that Tina’s children did not know that she was dating McKinley and that they were taking steps to keep such information from the children. At trial, Tina’s coworker, Claudia Baker, and Tina’s supervisor, Kevin Huffman, contradicted McKinley and Tina’s account. According to Baker, in the fall of 1998, Tina told her that she was getting a divorce and that she was dating “a cop from Lee’s Summit.” Tina told Baker that she spent time with the police officer in her home and that she was having a relationship with him because “he was helping her to get a divorce from her husband, to get rid of him.” Tina also informed Baker that Tina’s relationship with the police officer was sexual. According to Baker, Tina spoke of her relationship with the police officer openly and was “sort of bragging” about it.

According to Huffman, Tina spoke with him about her pursuit of a criminal case against White for molesting her daughter. She told Huffman that she had a boyfriend named “Curt Cox.” Tina told Huffman that “Curt” was a good influence on her children and was teaching her son how to fix motorcycles and helping her daughter with her homework. “Curt” was the code name that Tina and the children used to refer to McKinley. Huffman also noticed that Tina would wear an army jacket to work with the name “McKinley” on it.

White was tried three times in Missouri state courts for the alleged molestation of Jami. At his first trial, the jury convicted White of 12 counts of sexual molestation. Before his sentencing, White fled to Costa Rica where he was apprehended and eventually returned to Missouri. [Footnote: 8Because White fled the jurisdiction prior to sentencing, Missouri’s escape rule presumably applied. This rule precludes any appeal when a defendant has fled the jurisdiction after conviction but before sentencing. But the Missouri Court of Appeals waived the rule and permitted White to appeal his conviction because of evidence that was uncovered after his conviction.] “White learned after the verdict that Tina White and the chief investigator of the alleged crime [McKinley] had been engaged in a romantic relationship. White also learned that the prosecution knew about the relationship for approximately one year but failed to disclose the information to the defense.” State v. White, 81 S.W.3d 561, 566 (Mo. Ct. App. 2002).

The Missouri Court of Appeals determined that evidence of the romantic relationship between Tina and McKinley during the investigation “was material impeachment evidence that the defense was denied by the suppression of this information.” The court also addressed McKinley’s discovery of Jami’s diary and his failure to seize it as evidence, stating that “one does not have to be in law enforcement to know that it would not be routine to review the diary and then return it to the complaining witness.” Because the State violated its duty to disclose evidence favorable to the defense, the court set aside White’s conviction and remanded the case for a new trial. [Footnote: White’s second trial resulted in a hung jury — 11 jurors in favor of acquittal and one in favor of conviction. At his third criminal trial, in January or February 2005, White was acquitted. Having remained incarcerated post-appeal and throughout the second and third trials, White was released from custody in February 2005.]

White filed the instant § 1983 action against McKinley and Tina, alleging that McKinley deprived him of procedural due process by not preserving the diary as evidence and not disclosing his romantic involvement with Tina. He also asserted a claim for conspiracy to violate § 1983 against McKinley and Tina, asserting that they conspired to deprive him of procedural due process.10 Prior to trial, McKinley moved for summary judgment, claiming that he was entitled to qualified immunity. Tina also moved for summary judgment. The district court denied qualified immunity, and McKinley filed an interlocutory appeal with this court.

Because there were disputed issues of fact concerning McKinley’s state of mind, we affirmed the district court’s denial of summary judgment and remanded for trial.

At trial, the jury found in White’s favor on both counts, assessing actual damages of $14 million and punitive damages against both McKinley and Tina of $1 million each. McKinley subsequently filed a motion for judgment as a matter of law, a motion for a new trial, and a motion to alter or amend the judgment. The district court denied all motions.