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Osborn v. Butler

May 11, 2010

MICHAEL R. OSBORN, AN INDIVIDUAL, PLAINTIFF,
v.
KEVIN BUTLER, INDIVIDUALLY AND IN HIS CAPACITY AS AN EMPLOYEE OF THE IDAHO STATE POLICE; GARY DEULEN, INDIVIDUALLY AND IN HIS CAPACITY AS AN EMPLOYEE OF THE OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF IDAHO; STEVE HOPKINS, INDIVIDUALLY AND IN HIS CAPACITY AS AN EMPLOYEE OF THE IDAHO STATE POLICE; AND JOHN DOES I THROUGH IV, DEFENDANTS.



The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

I.

Introduction Plaintiff Michael Osborn alleges that Defendants Kevin Bulter, Gary Deulen, and Steve Hopkins violated his procedural due process rights by falsifying a polygraph examination and failing to correct the mistake, and that others relied upon the false polygraph report to Plaintiff's detriment at his parole hearing in 2004 and a sentencing hearing in 2007. There are three motions pending before the Court. First, Defendants Bulter, Deulen, and Hopkins moved for summary judgment with respect to Plaintiff's civil rights claims brought against them pursuant to 42 U.S.C. § 1983. (Docket No. 32.) Second, Plaintiff seeks to strike exhibits from the Court's consideration on Defendants' Motion for Summary Judgment. (Docket No. 42.) And finally, Plaintiff has filed his own motion seeking partial summary judgment on the issue of Defendant Butler's liability on Count One of Plaintiff's Complaint.

The Court conducted a hearing on the motions on April 29, 2010. During the hearing, Plaintiff conceded that the claims against Defendant Hopkins should be dismissed, and the Court granted Plaintiff's motion. (Minutes, Docket No. 64.) After carefully considering the parties' briefs, evidence, and oral argument, Defendants' Motion for Summary Judgment will be granted and Plaintiff's Motion for Partial Summary Judgment will be denied. Plaintiff's Motion to Strike will be granted in part, and Exhibit One to the Affidavit of Skinner, as well as the statements of fact based upon Exhibit One, will be stricken. The reasons for the Court's decision are explained below.

II. Undisputed Material Facts*fn1

On or about February 5, 2003, Plaintiff Michael Osborn ("Osborn") plead guilty to aiding and abetting the discharge of a firearm at an occupied building. He was incarcerated beginning in June of 2003 at the Cottonwood correctional facility. Ada County Prosecutor Roger Bourne ("Prosecutor Bourne") prosecuted Osborn for the crime.

The Jacobsen Letter

While incarcerated at Cottonwood, a fellow inmate named Ty Jacobsen ("Jacobsen") alleged that he heard Osborn utter threats against Prosecutor Bourne and Prosecutor Bourne's daughter. Jacobsen wrote a letter (the "Jacobsen Letter") to his attorney in or about June 2003, alleging that he knew Prosecutor Bourne and his family, and that he heard Osborn state: "I'm going to kill Roger Bourne when I get out! But first I'm going to rape his daughter...." (Overson Aff. Ex. 1, Docket No. 44-7 at 19.) The Jacobsen Letter was forwarded to Prosecutor Bourne, who on August 7, 2003, forwarded the letter to Fourth District Judge Joel Horton, the judge presiding over Osborn's rider review hearing scheduled for September 3, 2003. (Overson Aff. Ex. A, Docket No. 44-6 at 30.) On September 3, 2003, Judge Horton sentenced Osborn to serve the remainder of his prison term and thereafter Osborn was incarcerated at Idaho State Maximum Security Institution ("ISMSI"). (Overson Aff. Ex. D, Docket No. 44-7 at 21.) Osborn's mother, Laura Osborn, was present during the rider review hearing before Judge Horton, and she recalls that Judge Horton indicated he would not consider the Jacobsen Letter and the threats made therein for sentencing purposes. (Aff. of Laura Osborn ¶ 4, Docket No. 44-3.)

The Sexual Assault Investigation and the Polygraph

While incarcerated at ISMSI, another prisoner sexually assaulted Osborn. (Aff. of Laura Osborn ¶¶ 5--6, Docket No. 44-3.) Mrs. Osborn notified authorities about the sexual assault on her son. An investigation ensued, lead by Deputy Attorney General ("DAG") Jay Rosenthal and criminal investigator Gary Deulen, an employee of the Office of the Attorney General at that time. (Aff. of Laura Osborn ¶ 7, Docket No. 44-3; Overson Aff. Ex. B, Deulen Depo. at 11, Docket No. 44-7 at 4.) During the course of the investigation, Mrs. Osborn gave DAG Rosenthal a copy of the Jacobsen Letter. ( Aff. of Laura Osborn ¶¶ 15--16.) DAG Rosenthal requested a polygraph examination to determine Jacobsen's veracity. (Overson Aff. Ex. B, Deulen Depo. at 14, Docket No. 44-7 at 4.) Defendant Deulen contacted the Idaho State Police and arranged for Defendant Butler, an experienced polygrapher, to conduct a polygraph examination. (Id.,Deulen Depo. at 16--18, Docket No. 44-7 at 4--5; Pl.'s Response to Defs.' Statement of Facts ¶ 6.)

On August 3, 2004, Defendant Butler administered a polygraph examination to Jacobsen. Defendant Deulen was present when Jacobsen was transported to the polygraph examination. Other than transporting Jacobsen, Defendant Deulen did not participate during the examination, did not aid in scoring the polygraph, and did not interpret the data from the polygraph.

As part of the examination, Defendant Butler asked Jacobsen two relevant questions: "Are you lying about Osborn saying he was going to rape Meagan [Bourne]" and "Are you lying about Osborn saying he was going to hurt or kill Roger [Bourne]?" (Overson Aff. Ex. A, Butler Depo. Ex. B, Docket No. 44-6 at 27.) Jacobsen replied "No" to each question. (Id.) In his report (the "Polygraph Report"), Defendant Butler wrote that he determined Jacobsen responded truthfully to the question about Roger Bourne and scored "deceptive" to the question about Meagan. (Id.) Defendant Butler wrote a narrative as part of his report, explaining that the deceptive score "should be viewed with caution" based upon his training and experience. (Id.)

Once Defendant Butler submitted the Polygraph Report to the Attorney General's Office, he "had no understanding of how they were going to use it.... My only participation in the whole thing was that they wanted me to provide an opinion on whether or not Michael Osborn had, in fact, made those threats. Where it went from there, I have no idea." (Depo. of Butler at 103, Docket No. 44-6.) After Defendant Butler submitted the Polygraph Report to the AG's Office, he had no further contact, communication, or involvement with the investigation or the polygraph on any level until Mrs. Osborn filed a complaint against him in November of 2007.

Once the polygraph examination concluded, Defendant Deulen submitted the Polygraph Report to DAG Rosenthal. Defendant Deulen did not submit the Polygraph Report to anyone else. Jacobsen then admitted to Defendant Deulen that he had lied about the threats Osborn allegedly made against Prosecutor Bourne's daughter as part of a plea negotiation. Thereafter, Defendant Deulen spoke to Mrs. Osborn and informed her that Jacobsen had "passed the portion of the polygraph relating to threats against Mr. Bourne, and failed the portion relating to threats made against Mr. Bourne's daughter." (Aff. of Laura Osborn ¶ 21, Docket No. 44-3.) Defendant Deulen also informed Mrs. Osborn that Jacobsen had admitted to lying about Osborn threatening Prosecutor Bourne's daughter. (Aff. of Laura Osborn ¶ 11, Docket No. 44-3.) Mrs. Osborn was not provided with a copy of the Polygraph Report. (Aff. of Laura Osborn ¶ 22, Docket No. 44-3.)

The Parole Hearing

Osborn became eligible for parole in August of 2004, and on August 5, 2004, Prosecutor Bourne wrote to Olivia Craven, the Executive Director of the Commission on Pardons and Parole, stating that Osborn had threatened him and his family. (Aff. of Overson Ex. I, Craven Depo. at 29--30, Docket No. 44-8.) On August 13, 2004, DAG Rosenthal wrote Craven as well, and attached Defendant Butler's Polygraph Report along with a letter stating that there was "a basis to assume that the threat was in fact made." (Aff. of Overson Ex. H, Docket No. 44-8.) On August 18, 2004, a parole hearing was held. The Parole Commission possessed the Jacobsen Letter, the letters from Prosecutor Bourne and DAG Rosenthal, and Defendant Butler's Polygraph Report. Osborn was denied parole. Neither Defendant Butler nor Defendant Deulen were present during the parole hearing.

Olivia Craven confirmed that the Parole Commission had received both the letter from Prosecutor Bourne dated August 5, 2004, about the threats Osborn allegedly made against him, and the Polygraph Report from DAG Rosenthal under cover of Rosenthal's letter dated August 13, 2004. (Craven Depo. at 27--31, Docket No. 44-8 at 14; Ex. C, Rosenthal Depo., Docket No. 44-8 at 7.) Craven believed, but was not certain, that she copied the Polygraph Report for the Parole Commission's consideration. (Craven Depo. at 31, Docket No. 44-8 at 15 ("I have to assume possibly that was from us, and that we did make a copy for the Commission.") Craven, however, denied that the Polygraph Report was the sole basis upon which the Parole Commission decided to deny Osborn parole. (Craven Depo. at 31--33, Docket No. 44-8.) Craven explained that the Parole Commission looks at the "wholistic [sic] case, what's really going on with the inmate, and what would be best for the safety of the public and for the rehabilitation of the inmate.... Polygraphs are not something that the Commission relies a whole lot on for anything." (Craven Depo. at 33--34, Docket No. 44-8.)

At the time of his rider review hearing on September 3, 2003, Osborn was aware of the Jacobsen Letter and the threats he was accused of making against Prosecutor Bourne and his family. (Aff. of Osborn, Docket No. 44-2.) However, Osborn did not know that Jacobsen had submitted to a polygraph examination regarding the threats described in his letter, and Osborn was not given a copy of the Polygraph Report. He also did not know that the Polygraph Report had been included in his file for review by the Parole Commission. (Id.) In September of 2004, Osborn learned that DAG Rosenthal would not be prosecuting Osborn's assailant. Throughout the remainder of his incarceration, Osborn feared for his safety. On December 8, 2005, Osborn was granted parole and released from prison.

The Sentencing Hearing

After his release from prison, Osborn had another brush with the law and he was arrested and tried for being an accessory to a robbery. On October 16, 2006, a jury convicted Osborn of being an accessory to robbery. The court ordered a presentence investigation, and the presentence report included the Polygraph Report and the Jacobsen Letter. Osborn knew that the presentence investigation report included the Polygraph Report and the Jacobsen Letter. (Aff. of Osborn ¶ 4, Docket No. 44-2.) The first portion of the sentencing hearing was heard on February 8, 2007, but it was delayed and continued several times. During the sentencing hearing, Osborn was represented by counsel. (Aff. of Overson Ex. K, Docket No. 44-8.)

At the continued sentencing hearing held on March 29, 2007, Osborn's counsel represented that he had reviewed additional materials included in the presentence report, including the Polygraph Report, and that with the exception of a report from Intermountain Hospital, he confirmed that he had "adequate time to review the materials." (Aff. of Overson Ex. K, Mar. 29 2007 Tr. at 2, Docket No. 44-8 at 36.) The hearing was continued to April 6, 2007, and on that date, the only objection made to the contents of the presentence report was to a psychiatric report prepared when Osborn was thirteen. (Aff. of Overson Ex. K, Apr. 6, 2007 Tr. at 22, Docket No. 44-8 at 34.) Defendant Deulen testified at the April 6, 2007 hearing that Jacobsen admitted to lying about Osborn threatening Prosecutor Bourne's daughter as part of a plea negotiation in his own case. (Aff. of Overson Ex. K, Apr. 6, 2007 Tr. at 27, Docket No. 44-8.) However, Fourth District Judge Wetherell, who presided over the sentencing hearing, expressed concern that Osborn denied making threats against Prosecutor Bourne. On April 20, 2007, Judge Wetherell sentenced Osborn to serve ten years fixed, with fifteen years indeterminate.

Although Defendant Deulen testified at the sentencing hearing on April 20, 2007, he did not submit the Polygraph Report to the presentence investigator. Defendant Butler was not aware of the 2007 sentencing hearing or the fact that the presentence report included his Polygraph Report. (Aff. of Overson Ex. A, Butler Depo. at 81, Docket No. 44-6 at 19) ("I hadn't heard anything about Ty Jacobsen or Michael Osborn from the day I administered the polygraph examination until... over three years later when Mrs. Osborn filed a complaint against me.").

Osborn moved under Idaho Criminal Rule 35 for a reduction in his sentence. On September 14, 2007, Judge Wetherell issued a memorandum decision and order denying the motion. In the memorandum, Judge Wetherell explained that his decision was, in part, based upon Jacobsen's allegations that Osborn "threatened to kill an Ada County prosecutor and sexually assault his wife and daughter. While the other prisoner apparently recanted his statements as to the threats against the prosecutor's wife and daughter, he stood by his statements as to the threats against the prosecutor." (Aff. of Overson Ex. J, Docket No. 44-8 at 56.) Judge Wetherell explained also that Osborn was "on parole for participating in a drive-by shooting when he committed the robbery in this case" and he was found "guilty by a unanimous jury." (Id.) Therefore, Judge Wetherell believed that Osborn needed to be incarcerated to "protect society from additional acts of violent criminal behavior" and he was not persuaded to reduce Osborn's sentence. (Id.)

After the sentencing hearing, Mrs. Osborn believed that something was amiss regarding the Polygraph Report because she learned, for the first time, that Jacobsen was motivated by a plea deal in his own case. (Aff. of Laura Osborn ¶ 33, Docket No. 44-3 at 7.) Mrs. Osborn believed that if Jacobsen was motivated to obtain a plea deal, he could have lied also about the alleged threat Osborn made against Prosecutor Bourne. She therefore thought that there may have been something amiss with the polygraph examination as to the question about the threat against the prosecutor as well. (Aff. of Laura Osborn ¶ 33, Docket No. 44-3 at 7.) She began requesting records from the ISP and the Attorney General relating to DAG Rosenthal's investigation of the sexual assault against her son. On June 15, 2007, the AG's Office provided Mrs. Osborn a CD and related documents, and on June 26, 2007, Mrs. Osborn received an audio CD of the Jacobsen polygraph examination in which Defendant Butler can be heard telling Defendant Deulen that Jacobsen lied about Osborn making threats against Prosecutor Bourne's daughter.

In October of 2007, Mrs. Osborn filed a complaint with the ISP against Defendant Butler based upon the audio of the Jacobsen polygraph, and Defendant Hopkins reviewed the Polygraph Report. (Aff. of Laura Osborn ¶ 45, Docket No. 44-3.) Defendant Hopkins in turn informed Mrs. Osborn that Jacobsen had failed the polygraph examination, that Defendant Butler had incorrectly administered and scored the examination, and that Defendant Butler should not have included the explanation in his report as to why Jacobsen scored deceptive to the second question. (Id. ¶ 45.) Mrs. Osborn also retained a polygraph expert who evaluated the polygraph data and the Polygraph Report. (Id. ¶ 50.) The expert Mrs. Osborn retained similarly concluded Defendant Butler's scoring of the polygraph was incorrect and "not in accordance with AAPP Standards." (Id.)

On October 15, 2008, the State filed a motion to correct the record indicating that it had reason to believe the Polygraph Report should not have been part of the record during the sentencing hearing. In the order for resentencing, Judge Wetherell explained that the court "did rely upon the informant's statements and polygraph finding of a lack of deception by the informant as to the threats against the prosecutor to the extent that they gave the Court reason to doubt the Defendant's veracity when he continued to insist the polygraph tests had confirmed the informant lied as to both matters. The State has now advised the Court that the polygraph examination was not conducted in accordance with proper procedures and is, therefore, not reliable." (Aff. of Overson Ex. J, Order for Resentence; Ex. K, Tr. at 703--704, Docket No. 44-8.)

Judge Wetherell ordered a resentencing and redacted the Polygraph Report from the presentence investigation report. In arriving at the new sentencing terms, Judge Wetherell explained that he considered how much the court's ruling was impacted by the Polygraph Report, and that the court added additional time to Osborn's sentence because of the court's belief that Osborn, "even after being found guilty, continued to maintain a position that everything was the fault of the other guy." (Aff. of Overson Ex. N, Nov. 6, 2009 Tr. at 50, Docket No. 44-8.) In taking Osborn's denials into account, Judge Wetherell considered the Polygraph Report as evidence of Osborn's propensity to lie, thus adding additional time to the sentence. (Id.). Because the Polygraph Report results were discredited, Judge Wetherell reconsidered Osborn's sentence and on November 6, 2009, he sentenced Osborn to eight years fixed, with seventeen years indeterminate for a total of twenty-five years with credit for time served against the fixed portion of the sentence. (Id.).

The Veracity of the Polygraph Report

The test that Defendant Butler administered to Jacobsen was a "YOU-PHASE Zone Comparison Test," which American Association of Police Polygraphists' ("AAPP") guidelines and standards state is a single issue polygraph examination where two relevant questions paraphrase each other. According to AAPP guidelines and standards for that type of polygraph examination, split decisions are not allowed, meaning if one question is scored deceptive, the entire polygraph should be scored deceptive. AAPP guidelines, which ISP utilize, advise that unless a polygraph is administered according to AAPP guidelines it is considered unreliable.

Based upon AAPP guidelines, Osborn contends that the Polygraph Report was unreliable and false because Defendant Butler construed the test as a split decision and qualified the deceptive answer to the second question with a narrative. Osborn asserts that the narrative opinion unfairly suggested the deceptive score should be viewed with caution, and could have been truthful. Osborn characterizes Defendant Butler's testimony in this regard, stating that as a member of the AAPP, "Mr. Butler knew it was a violation of the guidelines and standards of the [AAPP] and the ISP to include explanations for scores showing deception." (Pl.'s Statement of Facts ¶ 6, Docket No. 44-1.) "By reporting the results of the Jacobsen polygraph as a split decision rather than as a fail, Defendant Butler violated AAPP guidelines and standards." (Id.) Osborn asserts that "Mr. Butler understood his responsibility to make it known to the AG's Office that Mr. Jacobsen had failed the polygraph. Mr. Butler knew immediately that Mr. Jacobsen had lied on the polygraph but reported otherwise. Mr. Butler told no one that Mr. Jacobsen had actually failed the polygraph test." (Pl.'s Statement of Facts ¶ 7, Docket No. 44-1.)

However, while Defendant Butler acknowledged he violated AAPP guidelines (Aff. of Overson Ex. A, Depo. of Butler at 65--80, Docket No. 44-6), Defendant Butler testified he stood by his findings, his report was "accurate" and he "administered the test properly." (Depo. of Butler at 81, 90, 95, Docket No. 44-6.) Thus, although he acknowledged that he did not score the test as the YOU-PHASE should be scored, he stated that "I stand by my findings on those charts that my report is accurate, that he responded truthfully to the one question, and deceptively to the other." (Depo. of Butler at 81.) Defendant Butler also denied any intent to violate ISP procedure or policy. (Depo. of Butler at 70, Docket No. 44-6.) Furthermore, Defendant Butler did not submit the report to anyone except the Attorney General's Office, understanding that his Polygraph Report was just being used as an "assist to the AG's office" to "provide an opinion on whether or not Michael Osborn had, in fact, made those threats." (Depo. of Butler at 88, 95, 103.)

III. Discussion

A. Motion to Strike

Osborn initially sought to strike portions of paragraphs 3 through 7 and 11 through 14 of Defendants' Statement of Undisputed Facts in Support of Motion for Summary Judgment and the related portions of the Skinner Affidavit filed in support of the statement of facts, as well as Exhibit 1 of the Skinner Affidavit. At the hearing, Osborn withdrew his motion with respect to paragraphs 7 through 10 of the Skinner Affidavit, Exhibits 5 through 9 of the Skinner Affidavit, and paragraphs 3, 4, 6, 11, 12, 13, and 14 of Defendants' statement of facts. This left the Court with the motion to strike Exhibit 1 and paragraph 3 of the Skinner Affidavit on the grounds that the exhibit, which purports to be a website prepared by Plaintiff Michael Osborn, contains inadmissible hearsay ...


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