7th Circuit Ruling Underscores Importance of Revealing Exculpatory Evidence

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“Oh, what a tangled web we weave, when first we practice to deceive!”* . . . Even by omission

Rainsberger v. Benner, 2019 (7th Cir. 2019)

William Rainsberger went to his elderly mother’s apartment and found her on the floor, covered with a bloody blanket. He then called police and his brother. When the investigating officer, Charles Benner, arrived, he focused on Rainsberger and his brother, both of whom would inherit from the mother’s estate.

Benner submitted a probable cause affidavit seeking to have Rainsberger arrested and charged with murder, but the prosecutor declined to pursue it. Several months later, Benner submitted an almost-identical probable cause affidavit. In the second affidavit, he failed to include exculpatory evidence of DNA from two unknown persons that was found on the bloody blanket.

This case stands for a very simple proposition: An officer swears, under oath and penalty of perjury, to tell the truth—the whole truth, and nothing but the truth. This means you should tell the truth as accurately as humanly possible and don’t leave out the exculpatory information.

After Rainsberger sat in jail for two months, the prosecutor dismissed the case due to a lack of evidence. Rainsberger sued Benner, claiming Benner’s second probable cause affidavit was “riddled with lies and undercut by the omission of exculpatory evidence.” Benner asked the court to dismiss the lawsuit on the grounds of qualified immunity. The district court denied his motion, and Benner appealed.

Benner admitted, at least for purposes of his appeal, he had “knowingly or recklessly made false statements in the probable cause affidavit.” In his defense, he argued that omissions or outright lies in a sworn affidavit only violate the Fourth Amendment if the omissions and lies are material to probable cause—he asserted they were not. The appellate court disagreed and again denied qualified immunity.

The second affidavit included cell phone records suggesting Rainsberger called his brother from the mother’s apartment after the time of the attack and before Rainsberger called the police. It is probable the detective recognized the timestamp was erroneous. Rainsberger’s phone call was routed through a cell site just across the Indiana-Illinois state line, meaning the time stamp indicated the call was made one hour earlier than the actual call (the Central and Eastern time zone boundary is at the state line). Benner also wrote that grocery store surveillance video taken from the approximate time of the attack showed Rainsberger “pull out a straight object from his person which he placed in the garbage can.” When the trial court viewed the video, the judge observed it did not show Rainsberger “‘pulling’ the object from anywhere.” The court listed several other arguably less egregious misrepresentations in the affidavit.

The court stated the test of whether the errors, omissions and lies are “material” to the finding of probable cause “depends on whether the affidavit demonstrates probable cause when the lies are taken out and the exculpatory evidence is added in.” The court held “with the lies stripped and the omissions added,” the detective’s affidavit “fails to establish probable cause to believe that Rainsberger murdered his mother. Because it is clearly established that it violates the Fourth Amendment ‘to use deliberately falsified allegations to demonstrate probable cause,’ … Benner is not entitled to qualified immunity.”

This case stands for a very simple proposition: An officer swears, under oath and penalty of perjury, to tell the truth—the whole truth, and nothing but the truth. This means you should tell the truth as accurately as humanly possible and don’t leave out the exculpatory information. When in doubt about including exculpatory evidence, consult the prosecutor (who will have to deal with the exculpatory evidence sooner or later anyway).

*For many years, I attributed this quote to my grandmother. She first cited it to me after some chocolate chip applesauce cookies went missing and efforts to conceal the crime by rearranging the cookies in the tin were unsuccessful. However, after my dear grandma’s passing, I learned it was a much more distant relative, Sir Walter Scott, poet and former Scottish high sheriff, who wrote these words. The lesson still stands: Tell the truth—in cookie consumption and sworn affidavits.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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