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Schand v. City of Springfield

United States District Court, D. Massachusetts

May 6, 2019

MARK SCHAND, MIA SCHAND, MARK SCHAND JR., QUINTON SCHAND, and KIELE SCHAND, Plaintiffs,
v.
CITY OF SPRINGFIELD, ELMER MCMAHON, LEONARD SCAMMONS, RAYMOND P. MUISE, MICHAEL REID, and JOSEPH ASSAD, Defendants.

          MEMORANDUM AND ORDER REGARDING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE (DKT. NOS. 86, 92, AND 119)

          MICHAEL A. PONSOR, U.S. DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff Mark Schand (“Plaintiff” or “Schand”) and his family members seek damages from the City of Springfield and five city police officers, based on Schand's imprisonment for nearly twenty-seven years for a 1986 murder he alleges he did not commit.[1] Defendants do not concede Plaintiff's innocence and, even assuming it, deny that they were guilty of any negligence or misconduct in connection with Plaintiff's conviction and imprisonment. Two motions for summary judgment are now before the court, one filed individually by Defendant police officer Elmer McMahon, Dkt. 86, and a second filed on behalf of all remaining Defendants, Dkt. 92. Defendants also move to strike the affidavit of Michael Hosten, a witness to the murder who is now dead. Dkt. 119. For the reasons set forth below, the court will allow the summary judgment motions, in part, and will deny the motion to strike, without prejudice to its reconsideration by the trial judge to whom this case will now be transferred.

         II. FACTUAL BACKGROUND

         The facts, for purposes of the motions for summary judgment, must of course be viewed in the light most favorable to Plaintiffs as required by Fed.R.Civ.P. 56. The complexity of the record has made the task of applying this standard difficult. The parties' submissions include: statements made to detectives immediately following the murder (including sometimes multiple, conflicting statements by the same witness, in some cases later recanted); testimony presented at the July 1987 motion to suppress hearing prior to the original trial; testimony presented at the November 1987 trial itself; evidence presented in connection with an unsuccessful motion for new trial filed in 1991 (heard and denied by the state court trial judge in 1992, and unsuccessfully appealed to the Massachusetts Supreme Judicial Court in 1995); evidence presented in support of the successful motion for new trial in 2013; and deposition testimony and affidavits generated during discovery in connection with this civil litigation. Although counsel have worked hard to present the record with reasonable coherence, the court's task has been complicated by assertions of undisputed fact made by both sides with sometimes elusive support in the record.

         An additional handicap has been the submission by Defendants of successive statements of undisputed fact. Defendants' first rendition appeared as Dkt. 93; it was followed by Plaintiffs' counterstatement, Dkt. 106, which was keyed to the paragraphs of Defendants' first statement. Two months later, Defendants submitted a letter, Dkt. 115, indicating they would be submitting an updated statement, to correct certain typographical errors contained in their original version. At the same time, Defendants submitted a (so to speak) counter-counterstatement of facts, Dkt. 116, which was a photocopy of Plaintiffs' counterstatement, with bolded commentary offering Defendants' disagreements. On this same day, Defendants submitted another statement of undisputed facts, Dkt. 118, which appears, except for some alterations in exhibits, to be virtually identical to their original statement of undisputed facts, Dkt. 93.

         To keep the discussion coherent, the court will refer below to Dkt. 93 as “Defs' SOF, ” except where some other version is expressly cited. This is the document that Plaintiffs' counterstatement (“Pls' SOF”), Dkt. 106, refers to, and this approach offers the cleanest avenue to a comprehensible overview of the parties' positions.[2]

         Apart from the challenge of sorting out the factual record, the court's task has been complicated by the extremely aggressive pleading by Plaintiffs' counsel. As will be seen the complaint embraces a number of causes of action (among others, the claims against the City of Hartford, which have been dismissed) with marginal or nonexistent legal or factual support.

         A. The Murder of Victoria Seymour

         On the night of September 2, 1986, at approximately 11:20 pm, Charles “Heavy” Stokes, his brother David Stokes, Anthony Cooke, and Michael Hosten were loitering outside a bar in Springfield, Massachusetts, called the After Five Lounge. Strangers, who police later concluded were probably from Hartford, approached the four men to discuss purchasing illegal drugs. A scuffle broke out; shots were fired, and a bullet struck Cooke in the shoulder. Charles and David Stokes, Hosten, and Cooke began to flee, and their assailant pursued, continuing to fire at them. When Charles Stokes stumbled, the gunman stood over him pointing a gun in his face while Stokes begged for his life. He then robbed Stokes of a bag containing drugs and some amount of money. The gunman and his friends then fled in one or two vehicles. Victoria Seymour, who had no connection with the botched drug deal, was standing near the front of the After Five Lounge. A single bullet fired by the same gunman who wounded Cooke and robbed Charles Stokes struck Ms. Seymour in the back, and she died later at a local hospital. Two friends of Ms. Seymour's, Willie Darko and Michael Bernard, observed the incident from somewhere nearby, either from an upstairs balcony or on the street, depending on which version of their testimony is accepted.

         B. The Investigation

         Shortly following the shooting, Defendant Detective Leonard Scammons (“Scammons”} of the Springfield Police Department (“SPD”) began interviewing the Springfield men involved in the incident, as well as the victim's friend Michael Bernard. Descriptions of the shooter varied. Charles Stokes identified him as a black male wearing blue jeans and a white shirt. Cooke described him as a black male with a dark complexion, five feet nine inches tall, with a slender to medium build. On the day following the shooting, September 3, 1986, two other Springfield officers who are not defendants interviewed Cooke a second time at the hospital. In this interview, Cooke described the shooter as five feet eleven inches tall, twenty-one to twenty-three years old, or perhaps “an old looking 19-year-old” wearing a white warm-up jacket, blue jeans and white leather sneakers, and having an Afro which was "sort of full on top." Defs' SOF, Dkt. 93, Ex. 2 (Declaration of Detective Robert Cheetham at 4, report of interview with Anthony Cooke).

         That same day, September 3, Defendant Scammons and a non-defendant Springfield police detective interviewed Michael Hosten, who described the assailant as a clean-shaven black male with medium skin who appeared to be around 30 years old, wearing a brown or beige jacket.

         The first interview of Victoria Seymour's friend Michael Bernard also occurred the day after the shooting, September 3. Defendants' Statement of Facts, Dkt. 93, regarding this interview is perplexing. It offers a supposed description by Bernard of the shooter, citing in support of this description the Complaint, Dkt. 1 at ¶42, as well as Dkt. 93, Ex. 4A, which Defendants' Statement of Facts identifies as a “9/3/86 Signed Bernard Statement.” Defs' SOF at ¶5, Dkt. 93.

         Contrary to Defendants' assertion, ¶42 of the Complaint simply says that Bernard “did not provide a physical description of the assailant.” Dkt. 1 at ¶42. Moreover, the document attached as Exhibit 4A to Defendants' first Statement of Facts, Dkt. 93, is not (as Plaintiffs' Statement of Facts at ¶5, Dkt. 106, points out) Bernard's 9/3/86 statement. Rather, it is an undated statement obviously taken from Bernard at some later point in time. Indeed, in Exhibit 4A to Dkt. 93, Bernard explicitly says that the statement is “in addition to a statement that [he] gave on September 3, 1986.” Bernard's 9/3/86 statement actually appears in the record as Exhibit 3 to Dkt. 105, offered in support of Plaintiffs' opposition to Defendants' motion for summary judgment. To complicate matters further, Defendants have substituted a new Exhibit 4A, Bernard's actual statement of September 3, 1986, for the later undated statement originally appearing as Exhibit 4A as part of Dkt. 93, in their subsequent corrected Statement of Facts, Dkt. 116. In Dkt. 116, the original Exhibit 4A appended to Dkt. 93 has vanished.

         At any rate, it appears undisputed that in his statement of September 3, 1986, Bernard described seeing the shooter discharge a handgun at Charles Stokes three or four times, and, when Stokes fell, lean over and take a plastic bag from him, then run away. Bernard described the assailant as five feet seven inches tall, 160 pounds, twenty-five years old with dark skin. Bernard said in this statement that he had never seen the shooter before. Dkt. 105, Ex. 3 at 2. In the later undated statement, originally offered as Exhibit 4A of Defendants' Statement of Facts, Dkt. 93, Bernard stated, inconsistently, that prior to the shooting he had seen the shooter a couple times in Hartford.

         It is perhaps helpful here to take a step away from the chronology to note the contents of the undated, but later, Bernard statement that originally appeared in Defendants' Statement of Facts, Dkt. 93, as Exhibit 4A. First, the evidence suggests that this statement was given some time after September 23, 1986. In this statement, Bernard described how at some point he was shown approximately thirty pictures of black males by Defendant Scammons and another Springfield Detective, Milton Doty. The record is clear that Springfield detectives first received these thirty photographs from a Hartford detective on September 23. Bernard did not describe any of the pictures shown to him at this time as a Polaroid. In fact, Bernard selected as the shooter picture number 20618, indisputably a mugshot of Schand taken by the Hartford police. This mugshot depicted Schand without any glasses and not wearing chains, and Bernard's statement did not describe Schand as wearing either glasses or chains in the photo he saw. He asserted at this time that he was “100% sure” of his identification of Plaintiff as the shooter. Another police activity report dated October 24, 1986, describes a further interview with Bernard in which he confirmed the certainty of his identification of Schand. Dkt. 116, Ex. 4L at 33.

         It is undisputed that Bernard has never recanted his identification of Schand as the shooter. However, in his later testimony during the course of the suppression hearing in July 1987, prior to Schand's trial, Bernard testified that he saw pictures of Schand “with chains.” Dkt. 105, Ex. 10 at 188. This suggests Bernard may at some point have seen a Polaroid picture of Schand that showed him wearing gold chains, a critical point in the discussion below. His testimony offers no details about how the pictures “with chains” were shown to him, who showed them to him, or the context in which he saw them.

         Returning to the chronology and the date of September 3, 1986, on this day, Defendant Detectives Michael Reid (“Reid”) and Joseph Assad (“Assad”) interviewed two teenaged boys, Lavon Dixon (“Dixon”) and Al Chase (sometimes known as Jermaine Bush, but hereafter “Chase”), who had been eating at a pizza parlor called Pizza King half a mile from the After Five Lounge at around 11 pm on September 2, approximately twenty minutes before the shooting. A summary report of the interview prepared by Reid and Assad appears in the record as Defendants' Statement of Facts, Dkt. 93, Exhibit 3B. According to the report, Chase stated that while he and Dixon were at the Pizza King, a group of men from Hartford approached them. One of the men began asking Chase about some gold chains he was wearing, and Chase became concerned that he might be robbed. Chase described this person (“Subject 1”) as a black male, twenty years old, five feet seven inches tall, with black hair in braids, a brown and white short-sleeved shirt, blue pants, and blue sneakers, wearing sunglasses with brown frames and gold trim. Chase described another man in the group (“Subject 2”) as twenty-six years old, five feet eleven inches tall, with light skin, wearing a beige fisherman's hat and a beige shirt. A third man (“Subject 3”), according to Chase, was very dark, wearing a yellow shirt and four gold chains. A fourth man was wearing a red shirt, and a fifth had on red sneakers. Chase told Assad and Reid that he recognized Subjects 1 and 3 from having previously seen them.

         At the bottom of Reid's and Assad's September 3, 1986 report describing the Chase interview is a handwritten note: “one with bad/decaying teeth.” Dkt. 93, Exhibit 3B at 6 (the word “bad” was inserted above the word “decaying”). Plaintiffs' Statement of Facts cites this notation as evidence that Chase “identified the perpetrator as ‘one with bad/decaying teeth.'” Pls' SOF at ¶ 8, Dkt. 106. The record, however -- at least as reflected in this document -- does not support this assertion for two reasons. First, Chase was not at the scene of the shooting and therefore was not in a position to identify any “perpetrator.” Second, it is impossible to tell from this interview summary which of the several subjects Chase described encountering at the Pizza King had the “bad/decaying teeth” that the handwritten comment refers to.

         According to the summary report, Chase told the officers that four of the men who approached him were driving a “grayish custom van” with a Connecticut license plate. Two other men in the group were driving a second vehicle, a dark-colored car. Defs' SOF, Dkt. 93, Ex. 3B.

         More than twenty-five years following the shooting, in January 2013, an individual named Randy Weaver submitted an affidavit in support of Schand's ultimately successful motion for new trial, indicating that he had come from Hartford on the night of the shooting, September 2, 1986. He had been in a pizza restaurant near the After Five Lounge that evening, looking for a man who had stolen a gold chain and medallion from him at a “Run DMC” concert in Springfield on August 30, 1986. He was with a group of other men from Hartford, including a man named Tracy Fisher, who had broken teeth (apparently resulting from an earlier gunshot wound), and another man named Ty Johnson. At the time, Weaver wore his hair in braids, wore gold chains, and drove a van. Dkt. 105, Ex. 59 at ¶6. Later, Weaver was in the area of the After Five Lounge when he heard shots. He denied participating in any shooting, but he described Johnson and Fisher reporting to him later that they had exchanged gunshots with some “Springfield guys” after a tussle over drugs. Id. at ¶13. Weaver stated that sometime after Schand was arrested, he told unidentified Hartford police officers that he had been in Springfield in the area of the shooting and that “Mark Schand wasn't there.” Id. at ¶14. Without describing how he could be sure, he said that he “knew that Mark Schand was not in Springfield the night of September 2, 1986.” Id. at ¶15. The record contains no explicit evidence that the Hartford police passed Weaver's comments on to the Springfield investigating officers. Plaintiffs contend, nevertheless, that Defendants were negligent in not adequately pursuing an investigation into whether either Weaver (with the chains and braids) or Fisher (with the broken teeth) may have been the shooter, and not Plaintiff.

         Returning to September 3, 1986, on that day Defendant Detective Elmer McMahon interviewed a man named Richard Ramsey, who lived near the After Five Lounge. Ramsey stated that he had just arrived home when he heard the gunshots. When he got outside, he saw three men run into a blue van, and two others run into a blue or black car. Both vehicles sped away. Defs' SOF, Dkt. 93 at ¶10. No. further interview was conducted of Ramsey.

         Plaintiffs' Statement of Facts identifies other statements taken by detectives on September 3 from persons in the area of the shooting on the evening before. These provide conflicting descriptions of what occurred. One purported witness, Water Teal, described the shooter as wearing a ski mask, chasing the victim, shooting her multiple times, and pulling money out of her bra. Dkt. 105, Ex. 5. Another witness, Shirley Pleasant, described the group from Connecticut as driving a black Lincoln or red Mazda. Id., Ex. 6. Yet another witness, Walter White, described the gunman as between twenty-seven and thirty-five years old, between five feet eight inches and six feet tall, average build, weighing about 170 lbs. According to White, the shooter had short cropped hair and it looked like he had a “receding hairline.” Id., Ex. 7. Finally, Lawrence Gadson, another witness, described the gunman as a black male, dark skinned, about 5'5", who looked like he was wearing "corn braids." Id., Ex. 8.

         The investigation of the Seymour murder pursued the possibility that the killer had come from the Hartford area. Kenneth Whitted, a confidential informant detained in Springfield at that time, was not a witness to the shooting, but he told the detectives that he could generally identify men from Hartford who had been involved in recent altercations in Springfield. On September 17, 1986, Defendant Detectives Scammons and Assad drove Whitted from Springfield to the Hartford Police Department, where he was shown a collection of mugshots. Whitted identified six or seven photos of men who, according to him, had visited Springfield over the summer. Defendants contend that the record is undisputed that Schand's photo was not among those shown to Whitted, but their citation for this assertion is the complaint, Dkt. 1 at ¶¶ 63-69, which says just the opposite. Paragraph 67 of the complaint states that two pictures of Schand were shown to Whitted; ¶69 says that Whitted did not pick either photo as depicting a person who had been in any recent altercations in Springfield. Plaintiffs, for their part, contend that three pictures of Schand were among the photos shown to Whitted at that time. Pls' SOF at ¶16, Dkt. 106 (citing “Plaintiffs' Ex. 10, ” purportedly a motion to suppress transcript at 127-128). A review of Exhibit 10 (at least in the version appearing on the electronic docket) reveals no reference to Whitted testimony, or to pages 127-128 of the transcript. The dispute, while puzzling, is not material to any of the substantive issues to be resolved in this opinion. In other words, the question whether Schand's photo appeared in the selection of men from Hartford who, according to Whitted, may (or may not) have been involved in prior beefs in Springfield does not bear significantly any issue now before the court.

         It is undisputed that shortly after the day of his trip to Hartford with Whitted, September 13, 1986, Defendant Detective Joseph Assad left the Homicide Bureau and thereafter had no involvement in the investigation of the Seymour murder. Pls' SOF at ¶19, Dkt. 106.

         On September 18, Defendants Scammons and Reid showed a photo array to Dixon and Chase of the men from Hartford who had been selected by Whitted the day before. Chase "liked" the picture of a man with cornrows as possibly being among the men who confronted him at the Pizza King on the night of the shooting, and Dixon "liked" two men in the array named Pruitt and Syms. Reid and Scammons did not make a record of the photos they showed Dixon and Chase. It appears undisputed, however, that even if a picture of Schand was included in the group of photos previously selected by Whitted, Schand's photo was not among those Chase and Dixon “liked.”

         That same day, September 18, Cooke was also shown the same photo array. He did not make an identification. The parties dispute whether Reid and Scammons adequately recorded which photos were shown to Cooke. For purposes of Defendants' motions, the court will accept Plaintiffs' contention that they failed to do this.

         On September 19, 1986, Scammons and Reid interviewed Tanya Polon, whose home was across from the After Five Lounge. She stated that after the shooting, she had seen a four-door white Datsun traveling down the street with four black men in it. The Datsun was followed by a silver or light blue van with a white stripe running down the side, a window on the top, bubble on the side, and a ladder on the back. Polon noted that neither vehicle had its lights on. Then, a black male, about 28 years old, dark complexion, about five feet seven inches tall with a large three-inch Afro appeared, ran down the street, and jumped into the Datsun. The driver put the lights on and drove away. Defs' SOF at ¶22, Dkt. 93. Polon told the officers that her neighbor Lee Hutchins could identify the van. No. evidence in the record indicates whether any Springfield detective attempted to contact or interview Hutchins. Shown a photo array, Polon made no identification.

         At some point in early or mid-September of 1986 -- the record does not indicate when exactly, but the parties seem to agree on this general timeframe -- an unidentified officer of the Hartford police stopped Plaintiff for a motorcycle infraction and directed him to the Hartford police station. At the station, three Polaroid photographs of Plaintiff were taken by this officer, or perhaps by some other unidentified Hartford officer. In those photos, Plaintiff was wearing what were then popularly called “gazelle” or “cazal” oversized sunglasses, thick chains on his neck, and his hair in cornrows. Two of the photographs depicted Plaintiff full-face, and one showed him facing right. Dkt. 105, Ex. 15. Plaintiff does not appear to contend that the motorcycle stop and the resulting photographing were pretextual, i.e., tactics intended to obtain a picture of Schand for purposes of the Seymour murder investigation.

         Here, the discussion must break from straight chronology to address a central disagreement between the parties: the question whether a material dispute of fact exists on the record as to if and when these Polaroid photos of Plaintiff came into the possession of any of the Defendants and were shown to witnesses. Defendants cite the deposition testimony of Defendant Raymond Muise as support for their contention that Defendants only received the Polaroid photos of Plaintiff from the Hartford police on October 29, 1986, the day Plaintiff was arrested, and that the Polaroids were never shown as part of any photo array to any witnesses prior to, or even after, that date. Defs' SOF, Dkt. 93, Ex. 9 (Muise Dep. at 71-73) & Ex. 5 (Muise trial testimony at 740-742). Indeed, Muise testified at his deposition that in his opinion using the Polaroids “would be too suggestive.” Id., Ex. 9 at 77; Dkt. 105, Ex. 31 at 77.

         Plaintiffs strenuously argue that the record contains evidence that Defendants somehow possessed the Polaroids of Plaintiff prior to October 29, 1986, and that they included them in photo arrays shown to potential witnesses. Some of these witnesses ultimately identified Plaintiff as the gun-wielding assailant outside the After Five Lounge and testified to this effect at Plaintiff's trial. Plaintiffs point to the testimony of Michael Bernard at the motion to suppress hearing. As noted above, according to the transcript, Bernard stated that, at some unspecified date prior to October 29, 1986, he was shown a picture of Plaintiff “with chains.” Dkt. 105, Ex. 10 at 188. The Hartford mugshots do not show Plaintiff wearing chains; the Polaroids do. This can be easily seen by comparing Dkt. 105, Ex. 15, with Dkt. 93, Ex. 43. Moreover, Bernard identified “Exhibit 2A” at the suppression hearing, which Plaintiffs contend is one of the Polaroids, as a picture he was shown at some time prior to October 29. Dkt. 105, Ex. 10 at 188. However -- again, as already noted -- Bernard never offers any details about the circumstances under which he saw any picture of Plaintiff “with chains.”

         Plaintiffs also point to the testimony of the two teenagers, Al Chase and Lavon Dixon, who encountered the men from Hartford at the Pizza King prior to the shooting. Chase testified at Plaintiff's trial that, at some point, officers came to his school and showed him a photograph of Plaintiff wearing “gazelles” and with his hair in braids. Since the mugshots do not depict Schand wearing gazelle-type sunglasses, it is a reasonable inference that Chase viewed at least one of the three Polaroids taken in Hartford. Dkt. 105, Ex. 13 at 249. However, the context of the testimony does not suggest the date of this incident, except that it appears to have taken place when police questioned Chase at his school. The other teenager, Dixon, offered similar testimony at the 1987 trial about being shown, also at school, a photo of Plaintiff with “gazelles.” Id. at 275-277.

         While the record is murky, and certainly disputed, it cannot be said at this stage that Plaintiffs lack evidence that could justify a reasonable jury in concluding that, by some unidentified process, Springfield police officers came into possession of the Polaroid photos of Schand from the Hartford police and showed them to potential witnesses prior to Schand's arrest on October 29, 1986. No. record evidence describes how they did this.

         Plaintiffs seem to argue that displaying one of the Hartford Polaroids to a witness during the murder investigation would have been, per se, improperly suggestive and a violation of Schand's constitutional rights. But, as will be seen, the use of a Polaroid would not necessarily have been, in itself, improperly suggestive. Any conclusions about the suggestiveness of this tactic would depend on the circumstances. Defendants, of course, have no light to throw on this issue, since they deny ever showing the Polaroids to any witnesses.

         The only specific evidence in the record explicitly supporting a finding that a Polaroid photo of Schand was used suggestively came from Michael Hosten, a witness at the scene who testified for the Commonwealth at the 1987 trial and identified Schand as the shooter. In June of 2006, almost twenty years after Schand's conviction, Hosten signed an affidavit repudiating his trial testimony and describing police misconduct, including improper pressure by officers to implicate Schand and blatantly suggestive misuse of the Polaroid. Dkt. 105, Ex. 24. Hosten died shortly after signing the affidavit, and Defendants' motion to strike will be addressed below.

         The discussion now returns to the straightforward chronology. On September 23, 1986, Defendant Scammons and Detective Doty traveled to Hartford to speak with Detective Ronald Faggiani regarding Hartford men known to frequent Springfield.[3] Faggiani provided them with a selection of roughly thirty police mugshots that included pictures of Plaintiff, three of his brothers, Terry Schand, Antonio Schand, and Roger Schand, and one of Randy Weaver. Apart from this, no record was kept of the thirty or so photos received.

         Later that day, September 23, Detectives McNulty and Fleury re-interviewed Cooke, showing him the thirty mugshots that had been provided earlier that day by the Hartford police. Cooke picked out two photos as possibly being one of the men from the After Five shooting: Plaintiff and Antonio Schand, his brother. Cooke stated that he was 60-70% sure about Plaintiff's brother Antonio and that Plaintiff may have been present at the shooting, but he was not as sure about Plaintiff as Antonio. Defs' SOF at ¶27, Dkt. 93. Cooke did not recall any of the men from that night having cornrows. No. record was kept of the photos shown to Cooke on this date.

         On September 24, 1986, Defendants Scammons and Reid interviewed Dixon, Chase, Whitted, and Charles Stokes, showing them the photos received from Hartford. Chase identified Plaintiff with 90% certainty as one of the men he encountered at the Pizza King shortly before the shooting and another man, Anthony Atkins, with 50% certainty. Dixon identified Plaintiff with 50% certainty and Atkins with 30-40% certainty. Defs' SOF at ¶28, Dkt. 93. Whitted picked out Plaintiff from the photo array as a man he had seen in Springfield on several occasions. Charles Stokes selected the photo of Plaintiff and another man named Tracy Truman as looking similar to the man who attacked him, but only with 30-40% confidence. At this time, Stokes described his attacker as a black male, about thirty years old, five feet seven inches tall, 155 pounds, wearing a beige mechanics uniform. He also said his attacker “appeared to have bad teeth.” Defs' SOF, Dkt. 93, Ex. 4J at 2. Plaintiff has a visible front gold tooth, but a jury could find that he does not have what could reasonably be described as “bad teeth.”

         Defendants Scammons and Reid memorialized these four interviews (Chase, Dixon, Whitted, and Charles Stokes) in a police activity report dated September 24, 1986 ("the Scammons Report"). Defs' SOF, Ex. 4J. Stokes's account of his assailant appearing to have bad teeth was contained on the second page of the report.

         At this point, the discussion will diverge again from the chronology to address another crucial issue, the Scammons Report and what happened to its second page. Viewing the evidence in the light most favorable to Plaintiff here, a jury could conclude that Schand's attorney, Roy Anderson, was given only the first page of the Scammons Report as part of the Commonwealth's document disclosure prior to Plaintiff's trial. He never received the second page with the arguably exculpatory comment by Stokes that his assailant had “bad teeth.” A doctored copy of the Scammons Report was discovered in 1991 in a locked cabinet in what was then Defendant McMahon's office. On this copy, references on the first page of the report indicating that it was “Page 1 of 2” and that the report was “continued on page 2” had been covered in white-out, so that if a copy were made of the first page, the existence of the second page would be concealed. Plaintiffs contend that because Defendant McMahon supervised the investigation and the altered report was found in his office, a jury could reasonably conclude that McMahon was responsible both for the alterations and for deliberately withholding exculpatory evidence.

         On October 15, 1986, Randy Weaver was arrested in Hartford on unconnected charges. As noted above, at that time Weaver drove a blue and grey van which matched the description of the vehicle at the shooting, styled his hair in cornrows, and wore the “gazelle” style of sunglasses Plaintiff was wearing in the Polaroid photos. Some evidence suggests this information (the “Hartford material”) was shared by Hartford law enforcement agents with the Springfield police, although Defendants dispute this. A jury could find that this Hartford material was never shared with Schand's defense attorney, who might have used it at the criminal trial as evidence that Weaver, not Schand, was the gunman at the After Five Lounge shooting.

         As noted above, sometime after September 23, 1986, Springfield detectives Doty and Scammons took a statement from Michael Bernard while Bernard was being held in the Springfield District Court lockup. They showed Bernard the thirty mugshots received from Hartford detective Faggiani, and Bernard selected the picture of Plaintiff, stating that he was “100% sure that this was the guy who had the gun.” Defs' SOF, Dkt. 93, Ex. 4A. He then signed and dated the picture, confirming that it bore the number 20618, which was a mug shot, not a Polaroid, of Plaintiff. Dkt. 116, Ex. 52 at 2. According to Bernard's statement, when Scammons and Doty asked Bernard a second time how sure he was of his identification, he stated “I am 100% sure.” Dkt. 93, Ex. 4A. Another, shorter report submitted by detectives Doty and Scammons, dated October 24, 1986, describes an interview with Michael Bernard and again notes how Bernard “positively identified a photo of Mark Schand as a picture of the person who had a gun in his hand the night the Seymour homicide.” Defs' SOF, Dkt. 93, Ex. 4L. It is not clear whether Exhibit L is a shorter description of the contact that produced the statement by Bernard included in Exhibit 4A, or if it is describing some additional, independent contact. At any rate, on October 29, 1986, based on the positive identification of Schand by Michael Bernard, the Hampden County District Attorney's office obtained a warrant for the arrest of Mark Schand for the murder of Victoria Seymour. As noted above, the evidence, though disputed, is sufficient to permit a jury to conclude that Bernard was shown one of the Polaroids of Schand on or about this time.

         On October 29, 1986, pursuant to the warrant issued that day, Plaintiff was arrested and questioned by the SPD. He stated that he only wore the “gazelle” glasses the day the Hartford police took the Polaroid, that he had not been in Springfield on September 2, 1986 (and had, in fact, only visited Springfield once in his life, on another occasion), and that he had never driven a van.

         The SPD continued its investigation after Schand's arrest. On October 30, 1986, Reid and Muise interviewed Hosten again and showed him an array of eight photographs. Hosten selected photo 20618, the mugshot of Plaintiff, and stated that he was positive that he was the shooter. Defs' SOF, Dkt. 93, Exs. 16D & 16E. Hosten eventually testified for the Commonwealth at Plaintiff's trial, a key witness positively identifying Plaintiff as the shooter on September 2, 1986.

         According to a statement obtained from Hosten by an investigator employed by Plaintiffs in June 2006, twenty years after Schand's trial, Hosten's identification was a deliberate lie, made to curry favor with Defendants and the Springfield District Attorney's office. Hosten said in this statement that at the October 30, 1986 meeting, Reid and Muise first showed him a color Polaroid of Plaintiff and told him that Schand had been arrested for the murder of Seymour. The affidavit made clear that Hosten's mind was not tainted by any suggestive display of the Polaroid. He said in the 2006 statement that (although he never revealed it to the officers) as soon as he saw the Polaroid, he was immediately “sure he was not the person who had robbed Heavy Stokes on September 2, 1986.” Dkt. 105, Ex. 24 at ¶26 (emphasis in original). After showing him the Polaroid on its own, the officers, according to Hosten's statement, then inserted the Polaroid into the photo array of mug shots, and Hosten picked out Plaintiff as the shooter. He did not do this because he in fact recognized Schand as the gunman, or because the Polaroid had somehow misled him into actually thinking Schand was the shooter, but simply because “it was obvious that this was the person they wanted me to pick out.” Id. at ¶29. The officers then told Hosten that “if [he] cooperated, they would take care of [him] and make all [his] cases disappear.” Dkt. 105, Ex. 24 at ¶31. Hosten died shortly after giving this statement, and Defendants never had an opportunity to question him about it. The statement's admissibility is a very close question, which will be addressed below in connection with Defendants' motion to strike.

         On November 12, 1986, Whitted signed a statement identifying Schand's photo as someone he had seen in Springfield on several occasions. Defs' SOF at ¶48, Dkt. 93, Ex. 4M. No. record was kept of precisely which photos were shown Whitted.

         On December 4, another witness to the shooting, Lawrence Gadson, selected a photo of Schand as possibly being the individual who wielded the gun on September 2, 1986. He stated, however, that he would prefer to see Schand in person before making a firm decision. Defs' SOF, at ¶49, Exhibit 3F.

         On December 15, 1986, Defendant McMahon organized a lineup for Dixon, Chase, Charles Stokes, and Gadson. Plaintiff took part in the lineup with five filler participants: two SPD officers, two Hampden County jail inmates, and one man from the police lockup. Counsel for Schand was present at the lineup and voiced no protest about its composition. Defendants complied with defense counsel's request that the members of the lineup wear hats. In separate examinations of the lineup, Dixon and Chase identified Plaintiff as the person they saw at the Pizza King immediately prior to the shooting. Stokes identified Plaintiff with 55% certainty. Gadson did not make an identification. Defs' SOF at ¶¶50-52, Dkt. 93.

         Resolution of the question whether, viewing the record in the light most favorable to Plaintiffs, a jury could reasonably conclude that the composition of the lineup was unduly suggestive presents a challenge. A photograph of the lineup appears as Exhibit 27 to Dkt. 105. It reveals that Plaintiff is probably somewhat shorter and somewhat younger than most of the other members of the lineup, and he has no facial hair, unlike four of the six participants. It is unsurprising that defense counsel voiced no protest about the composition of the lineup, since Exhibit 27 reveals no egregious manipulation.

         One problem emphasized by Plaintiffs (accepting their view of the facts) is that Defendants' previous display of the Polaroids of Plaintiff to Dixon and Chase corrupted their perceptions and resulted in their mistaken identification of Plaintiff at the lineup. The improper use of the Polaroids, Plaintiffs contend, primed the two teenagers to pick out Plaintiff in the lineup as one of the men they saw at the Pizza King. Regarding the narrow question of the suggestive composition of the lineup, however, this argument offers little assistance to Plaintiffs. A jury would not need to find the lineup suggestive in itself in order to conclude that the prior manipulation of Dixon and Chase with the Polaroids vitiated any identifications they made of Plaintiff at the lineup.

         Another problem with the lineup, Plaintiffs say, is that Charles Stokes later stated that he knew all the members of the lineup except Schand and therefore was drawn to identify him, though with only 55% certainty. But the record contains no evidence that Stokes ever told Defendants that he was familiar with the other members of the lineup, so this problem can hardly be laid at their feet.

         Stokes's testimony has other problems. A few months after the lineup, he informed Defendants that he was, in fact, positive that Schand was the person who pointed a gun at him and robbed him, not 55% sure as he had previously stated. Dkt. 105, Ex. 37. He later testified to this effect at Plaintiff's trial as a key identification witness for the Commonwealth. Six years following that, during the hearing at Schand's initial motion for a new trial in 1992, Stokes entirely repudiated his earlier identifications and claimed that Schand was not present at the shooting.

         On December 31, 1986, Defendant Scammons interviewed William Darko, the friend of Victoria Seymour who, along with Bernard, was present with her at the After Five Lounge on the night of the shooting. Scammons showed Darko an array of what Darko described as nine “color” photos. Defs' SOF, Dkt. 93, Ex. 4N at 2. Darko's statement indicated that he selected a mugshot of Plaintiff with “the number 20618 on it.” Id. at 3. Darko stated that he was sure that this picture depicted “the guy who had the gun” and signed the back. Plaintiffs contend that this identification was tainted because the reference to “color” photos means that a Polaroid or Polaroids must have been improperly inserted into the array. The mugshots, including number 20618, were black-and-white. Darko also testified at the July 1987 suppression hearing prior to Schand's trial that he was shown “Exhibit 2B, ” one of the Polaroid photos, at this interview. Dkt. 105, Ex. 10 at 41-42.

         On April 10, 1987, Defendant Scammons took a statement from Anthony Cooke in which he stated that on April 2, he recognized Plaintiff while the two of them were being held in a local jail. Cooke said he noticed Plaintiff's gold tooth and was certain he was the same man who had been present at the After Five shooting, standing over Charles Stokes with a gun. Defs' SOF, Dkt. 93, Ex. 4Q.

         In the lead-up to the trial, prosecutors delivered discovery to Schand's defense counsel, Roy Anderson. No. one kept records of exactly what documents were produced or when, but Anderson has stated that he never received the second page of the Scammons Report and that, if he had, he would have used it during his cross-examination of witnesses at Plaintiff's trial. In addition, Anderson never received the “Hartford material” file that would have revealed the identities of other individuals, such as Weaver, who may have been involved in the Seymour murder. A jury could find that Defendants possessed this file, because they produced it as part of discovery in a later trial of Plaintiff's brother, Roger Schand. Pls' SOF at ¶194, Dkt. 106.

         The parties' submissions offer a plethora of additional details concerning the events leading up to Schand's trial, including a number of investigative pathways -- some pursued, some abandoned -- that have not been described here. The summary above, regrettably lengthy, presents the factual outline of the case relevant to the pending motions.

         C. SPD Training

         The parties have presented sharply different perspectives on the nature of the training received by SPD officers during the years leading up to the Seymour murder. Defendants point to record evidence (sometimes difficult to pin down in their citations) of some structured training, through the Municipal Police Training Committee and other resources, on handling exculpatory evidence and identification procedures. The depositions and other evidence in this area suggest that a significant amount of the training, though not all, was informal and on the job. Plaintiffs highlight the absence of written policies and procedures, and they point out portions of Defendants' depositions that suggest training in critical areas was at best informal and at worst scanty or non-existent. See Defs' SOF at ¶¶70-74, Dkt. 93, and the responsive paragraphs in Pls' SOF, Dkt. 106. It is clear that some training, whether formal, on the job, or through an annual in-service process -- and whether supported by written policies or developed through unwritten practices or the discretion of the officers -- was provided regarding identification procedures and handling of exculpatory evidence.

         Plaintiffs' expert report, authored by Lou Reiter, a former law enforcement officer and expert on police practices, stated that “the training, policies, practices, and supervisory oversight of detectives in the Springfield Police Department were egregious departures from generally accepted police practices at the time of the arrest and conviction of Mr. Schand.” Pls' SOF, Dkt. 105, Ex. 46 at ¶14. Reiter noted, for example, that the Springfield police manual lacked written policies concerning photo arrays and lineups and the handling of exculpatory evidence. By comparison, model police manuals such as the Rhode Island Law Enforcement Manual and an order issued from the Newton, Massachusetts Police Department, contained detailed policies governing identification procedures and the handling of exculpatory evidence. Id. at ¶¶20-28.

         Two points deserve note in connection with the factual context of the training issue.

         First, if the sole issue regarding municipal liability were whether Defendant Springfield's police training, policies, and practices were substandard as of 1986, Reiter's report would be sufficient to generate a dispute and put that issue in play. However, as the First Circuit recently noted, expert testimony to this effect is not enough. A plaintiff seeking to demonstrate municipal liability must show not only that the city's training regimen fell short, but also that the city “knew or had reason to believe that such a regimen had unconstitutional effects.” Gray v. Cummings, 917 F.3d 1, 14 (1st Cir. 2019). This may be done by offering evidence of “past violations sufficient to put the [city] on notice of such effects.” Id. No. evidence of any such past violations exists in the record.

         Second, Reiter's report offers a helpful perspective on the use of mixed photo arrays as of 1986. A key inference to be drawn from his report is that the use of photo arrays involving, for example, mug shots mixed with other photos did not necessarily render an identification tainted, so long as the mixed array was not presented in a suggestive manner. His report approvingly quotes the Massachusetts Law Enforcement Handbook, which states that the preferable practice is to use photos other than mugshots “if they are available.” Dkt. 105, Ex. 46 at ¶21. The Handbook advises that “if the suspect's photograph is in color or is large, include several other color or large photographs in the sampling.” Id. A later authority suggests that “‘[m]ug shots' should not be mixed with other photographs unless there is not [an] alternative.” Id. at ¶22 (emphasis supplied). Reiter's report supports the approach described in the 1985 Rhode Island Law Enforcement Manual, which states that “if possible, at least five photographs of different subjects” should be used depicting the persons in a similar way. Id. at ¶26. If the photograph of the subject is a mug shot with a front and side view, “then most of the photos should also be front and side views.” Id. (emphasis supplied). The report's summary of the requirements for a valid photo array by “at least 1985” includes the proviso that “if mug shots are used, that at least some of the other photos in the array are also mug shots.” Id. at ¶28. The report never suggests that different types of photographs, such as Polaroids, could never be used as part of a proper identification process, but only that the use of Polaroids as part of a photographic array is a “practice generally understood to be unduly suggestive, particularly when Polaroids are mixed in with other non-Polaroid photographs.” Id. at ¶57 (emphasis supplied).

         The factual summary of the Seymour murder investigation - viewed in the light most favorable to Plaintiff -- would, as noted already, permit a jury to conclude that at least one Polaroid was used in some manner during police interviews with potential witnesses. The testimony of Darko and Bernard at the suppression hearing prior to Schand's trial could be interpreted by a jury as suggesting that they were shown at least one Polaroid during their contacts with police, along with other photos. The evidence of suggestiveness, beyond the mere use of a ...


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