Full opinion text
MEMORANDUM AND ORDER RICHARD G. KOPF, District Judge. I. Introduction In 1989, the plaintiffs in these four § 1983 actions, James Dean, Kathleen Gonzalez, Thomas Winslow, and Joann Taylor, pleaded guilty or no contest to committing, or else aiding and abetting the commission of, second-degree murder in connection with the 1985 death of Helen Wilson in Beatrice, Nebraska. A fifth criminal co-defendant, Deb Shelden, also entered a plea of guilty to aiding and abetting second-degree murder, but she has only recently filed a § 1983 action in this court (Case No. 4:11CV3099). A sixth criminal co-defendant, Joseph White, was tried and convicted of first-degree murder. White brought suit in another § 1983 action (Case No. 4:09CV3145) which is assigned to the Honorable Warren K. Urbom. Subsequent to filing suit, White died and that action is being prosecuted by the personal representative of White’s estate. In 2009, the plaintiffs and Shelden received full pardons after White, who had been sentenced to life imprisonment, was granted a new trial on the basis of DNA testing and the State thereafter dismissed the case against him. The Nebraska Pardons Board was informed that recent DNA testing of semen, blood, and hair specimens collected from the crime scene in 1985 established that Helen Wilson had been raped and murdered by a single individual, Bruce A. Smith, who had no known connection to any of the six persons who were convicted of the crime. See filing 110-4 (Dean’s Ex. 24). Bruce Smith apparently died in 1992. See id. at 8. The plaintiffs claim that the Gage County Attorney (Richard Smith), the Gage County Sheriff (Jerry DeWitt), and three sheriffs deputies (Burdette Searcey, Wayne Price, and Gerald Lamkin) violated their due process rights by using false evidence and otherwise coercing them to plea bargain despite their innocence. The false evidence consists primarily of statements made by the plaintiffs themselves and Shelden. Taylor, Dean, Shelden and Gonzalez testified against White at his jury trial. The Nebraska Supreme Court, in affirming White’s conviction on appeal in 1991, summarized the evidence that was presented at his trial as follows: The record shows that on the night of February 5, 1985, White, James Dean, Thomas Winslow, Ada Joann Taylor, and Debra Shelden forcibly entered the victim’s apartment in Beatrice for the purpose of robbing her. A sixth accomplice, Kathy Gonzalez, entered the apartment during the course of the robbery. The record shows that White participated in at least four planning sessions concerning this incident. During those discussions, White proposed sexually assaulting Mrs. Wilson as well as robbing her. Most of the details of the Wilson homicide are set out in State v. Dean, 237 Neb. 65, 464 N.W.2d 782 (1991). Specifically, Mrs. Wilson was forced into her bedroom and was threatened and physically abused when she refused to tell the intruders where she kept her money. She was then forced back to the living room, screaming and kicking, and either tripped or was pushed to the floor. At this point, White and Winslow took turns sexually assaulting Mrs. Wilson. According to Taylor, White had vaginal intercourse with the victim, saying that she “deserved it,” while Win-slow held the victim’s legs. Winslow then sodomized the victim while White held her down. Meanwhile, Taylor suffocated Mrs. Wilson with a pillow. Mrs. Wilson did not move after she was raped, and appeared to be either dead or near death. The intruders proceeded to search the apartment for money. Taylor went into the kitchen and made some coffee for White and Win-slow. Dean testified that after they left the apartment building, there was a general conversation between Taylor and White “about how nice it was to do it. They would do it again. It was fun. If they had the opportunity, they would do it again.” White, Taylor, Winslow, and Dean then went to a truckstop and had breakfast. When Mrs. Wilson’s body was found the next morning by her brother-in-law, she had a complete fracture through the lower part of the left humerus, fractured ribs, a fractured sternum, a 2-centime-ter vaginal tear, and numerous bruises, abrasions, and scratches. Her hands were loosely tied with a towel, and a scarf was tightly wrapped around her head and tied. State v. White, 239 Neb. 554, 477 N.W.2d 24, 24-25 (1991); filing 54-3 (Defendants’ Ex. 1E) at 53-54. The defendants, in their individual capacities, have moved for summary judgment on the basis of qualified immunity. Richard Smith also claims absolute immunity. For the reasons discussed below, the defendants’ motions will be granted. Because I determine as a matter of law that the plaintiffs’ constitutional rights were not violated, I will also dismiss their claims against the defendants in their official capacities and their claims against Gage County. Caused largely by the need to address the facts in minute detail, this opinion is long. Therefore, a summary of my ultimate conclusions will be provided now to orient the reader to the detailed discussion that follows. That is: 1. As a matter of due process, it was clearly established in 1989 that police officers and prosecutors could not coerce criminal defendants to plead guilty (or no contest) by illegitimately threatening the accused or fabricating evidence. Viewing the evidence in the light most favorable to the plaintiffs, there is no evidence that the defendants illegitimately threatened the plaintiffs or fabricated evidence. On the contrary, each of the plaintiffs, with the assistance of competent counsel, were fully aware of the strength and weaknesses of the prosecution’s case and voluntarily elected to enter pleas. Those pleas were accepted by a judge who complied with all the required constitutional formalities. Therefore, all the defendants are entitled to qualified immunity on the coerced-plea claims. 2. It was not clearly established in 1989 that police officers were required to conduct criminal investigations in any particular fashion in order to avoid liability under a substantive due process theory. The only substantive due process limitation that existed in 1989 was that criminal investigations must not be conducted in a manner that “shocks the conscience.” Viewed in the light most favorable to the plaintiffs, the behavior of the defendants does not shock the conscience. Therefore, all of the defendants have qualified immunity on the substantive due process claims. 3. The prosecutor has absolute immunity. 4. All of the other claims are either barred by the statute of limitations or have no merit. A. Defendants’ Statement of Material Facts Our local rules provide that a party moving for summary judgment “must include in the brief in support of the summary judgment motion a separate statement of material facts about which the moving party contends there is no genuine issue to be tried and that entitles the moving party to judgment as a matter of law.” NECivR 56.1(a)(1). “The statement of facts should consist of short numbered paragraphs, each containing pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials that support the material facts stated in the paragraph.... The statement must not contain legal conclusions.” NECivR 56.1(a)(2) (emphasis in original). The defendants have generally complied with Rule 56.1(a) by including in their supporting brief a lengthy statement of material facts, including references to filed exhibits. Our local rules also provide that “[t]he party opposing a summary judgment motion should include in its brief a concise response to the moving party’s statement of material facts. The response should address each numbered paragraph in the movant’s statement and, in the case of any disagreement, contain pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials upon which the opposing party relies. Properly referenced material facts in the movant’s statement are considered admitted unless controverted in the opposing party’s response.” NECivR 56.1(b)(1) (emphasis in original). The plaintiffs have made no effort to comply with the requirements of Rule 56.1(b)(1) by addressing each numbered paragraph of the defendants’ statement of facts. Instead, they have responded with lengthy narratives of their own. While I will give due consideration to any additional facts that are properly referenced in the plaintiffs’ briefs and supported by admissible evidence, see Jenkins v. Winter, 540 F.3d 742, 747 (8th Cir.2008) (holding that district court erred in not considering statement of facts presented in opposition to summary judgment motion), the defendants’ statement of material facts, to the extent it is supported by the record and does not contain legal conclusions, will be deemed admitted by the plaintiffs. See, e.g., Ballard v. Heineman, 548 F.3d 1132, 1133 (8th Cir.2008) (“We follow the district court in considering [the defendants’] statements of fact in support of their motions for summary judgment ‘deemed admitted’ under Nebraska Local Civil Rule 56.1(b) because [the plaintiff] did not respond to those statements of fact.”); Libel v. Adventure Lands of America, Inc., 482 F.3d 1028, 1033 (8th Cir.2007) (district court was not obliged to scour record looking for factual disputes and did not abuse discretion in deeming admitted moving party’s statements of undisputed facts where opposing party’s responses violated Iowa Local Rule 56.1); Jones v. United Parcel Service, Inc., 461 F.3d 982, 991 (8th Cir.2006) (district court did not abuse discretion in deeming admitted defendants’ uncontroverted facts where plaintiffs response violated W.D. Missouri Local Rule 56.1; district court was not required to give specific notice of rule violation before disregarding the response); Northwest Bank and Trust Co. v. First Illinois Nat’l. Bank, 354 F.3d 721, 725 (8th Cir.2003) (district courts may adopt local rules designed to streamline resolution of summary judgment motions). See also Cordray v. 135-80 Travel Plaza, Inc., 356 F.Supp.2d 1011, 1014-15 (D.Neb.2005) (granting summary judgment based in part on opposing party’s failure to address each numbered paragraph of moving party’s statement of material facts). B. Plaintiffs’ Evidence “To be considered on summary judgment, documents must be authenticated by and attached to an affidavit made on personal knowledge setting forth such facts as would be admissible in evidence or a deposition that meets the requirements of [former] Fed.R.Civ.P. 56(e) [or current Rule 56(c)].” DG & G, Inc. v. FlexSol Packaging Corp. of Pompano Beach, 576 F.3d 820, 825-26 (8th Cir.2009) (quoting Shanklin v. Fitzgerald, 397 F.3d 596, 602 (8th Cir.2005)). “Documents which do not meet those requirements cannot be considered.” Shanklin, 397 F.3d at 602; Stuart v. Gen. Motors Corp., 217 F.3d 621, 635-36 n. 20 (8th Cir.2000). See also NECivR 7.0.1(b)(2)(C) (“An affidavit must identify and authenticate documents filed with the index [of evidence offered by a party opposing a motion]. The affidavit must be made on personal knowledge, set forth facts that would be admissible in evidence, show affirmatively that the affiant is competent to testify to the matters stated, and identify the related motion.”); NECivR 56.1 (“[T]he procedures of Nebraska Civil Rule 7.0.1 apply to summary judgment motions.”). “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed.R.Evid. 901(a). That is, “[t]he party authenticating the exhibit ‘need only prove a rational basis for that party’s claim that the document is what it is asserted to be.’ ” Jones v. National American University, 608 F.3d 1039, 1045 (8th Cir.2010) (quoting United States v. Wadena, 152 F.3d 831, 854 (8th Cir.1998)). “Testimony that a matter is what it is claimed to be” suffices. Fed.R.Evid. 901(b)(1). As noted by the defendants, many of the plaintiffs’ exhibits are not properly authenticated. Although affidavits have been filed by the plaintiffs’ attorneys, they only establish that documents were obtained through discovery; there is no showing that the attorneys have any other personal knowledge concerning these documents. Thus, James Dean’s counsel has submitted an affidavit in which he “identifies” 31 exhibits and then states: “All of the aforementioned documents, with the exception of the witness’ Affidavits, were disclosed to Plaintiff James Dean by Defendants in discovery, or were obtained by Plaintiff James Dean as the result of a subpoena served on the Nebraska Attorney General’s Office. Accordingly, I hereby authenticate the documents filed as evidence with the Plaintiffs Brief in Opposition, and believe that all of the documents are what they purport to be.” (Affidavit of Herbert J. Friedman (filing 113), ¶ 7.) Counsel for Kathleen Gonzalez, Thomas Winslow, and Joann Taylor similarly states in his affidavit that “I personally know that the [149] exhibits accompanying this affidavit are true and correct copies of the documents received in discover [sic] or pursuant to mandatory disclosure, or obtained from the authentic source of such document.” (Affidavit of Jeffry D. Patterson (filing 114 at 9), ¶ 3.) Swearing that exhibits are true and correct copies of documents obtained through discovery or from an “authentic source,” or expressing a personal belief that “the documents are what they purport to be,” does not satisfy the authentication requirement of Rule 56(c). See Cordray, 356 F.Supp.2d at 1016 n. 5 (D.Neb.2005) (“Authentication means more than ‘my opponent gave me a document.’ ”). Because the following plaintiffs’ exhibits are not properly authenticated by affidavit, and are objected to by the defendants on foundational grounds (see filing 128-1), they will not be considered in connection with the pending motion for summary judgment: Exhibit EOF Description Taylor’s Ex. 103 117-13 BPD report by Meints re Winslow 11/17/84 Taylor’s Ex. 105 118-1 BPD Report by Wiebe, Strickland re Winslow 12/22/84 Taylor’s Ex. 44 115-4 BPD Report by Hanson 2/2/85 Taylor’s Ex. 19 114-15 BPD Report by ? re Taylor 2/4/85 Dean’s Ex. 1 105-1 BPD Report of Crime Scene Data and Diagrams 2/6/85 Taylor’s Ex. 85 116-4 Same as Dean’s Ex. 1 Taylor’s Ex. 86 116-5 Photos of crime scene Dean’s Ex. 2 105-2 BPD Report by Wiebe, Stevens 2/6/85 Dean’s Ex. 3 105-3 BPD Report by Wiebe 2/6/85 Taylor’s Ex. 2 114-2 BPD Report by Stevens 2/6/85 Taylor’s Ex. 3 114-3 BPD Report by Scholl 2/6/85 Dean’s Ex. 4 105-4 BPD Report by Wiebe 2/7/85 Dean’s Ex. 5 105-5 BPD Report by Waltke 2/7/85 Dean’s Ex. 6 106-1 BPD Report by Waltke 2/7/85 Taylor’s Ex. 88 116-7 Same as Dean’s Ex. 6 Taylor’s Ex. 4 114-4 BPD Report by Fitzgerald 2/7/85 Dean’s Ex. 7 106-2 BPD Reports by Unknown, Hawkins 2/8/85 Dean’s Ex. 10 106-5 BPD Report by Hawkins 2/16/85 Taylor’s Ex. 92 117-2 Same as Dean’s Ex. 10 Taylor’s Ex. 139 119-22 BPD Reports by Various re Taylor 2/7-2/22/85 Taylor’s Ex. 93 117-3 NSP Report by Becker with B Smith brother 2/28/85 Taylor’s Ex. 94 117-4 NSP Memo by Becker w/ girls re B Smith 2/28/85 Taylor’s Ex. 95 117-5 NSP Memo by Becker w/ Hyatt re B Smith 2/28/85 Taylor’s Ex. 96 117-6 NSP report by Becker re B Smith face scratches 2/28/85 Taylor’s Ex. 7 114-5 BPD Report by Waltke 3/2/85 Taylor’s Ex. 8 114-6 BPD Interview Transcript of Goodson 3/2/85 Dean’s Ex. 11 107-1 BPD Report by Fitzgerald 3/9/85 Dean’s Ex. 12 107-2 NSP Memo by Becker 3/11/85 Taylor’s Ex. 98 117-8 Same as Dean’s Ex. 12 Dean’s Ex. 9 106-4 NSP Lab Report by Dr. Roy for BPD 5/15/85 Taylor’s Ex. 9 114-7 BPD Report by Stevens re Woodard 10/17/85 Taylor’s Ex. 10 114-8 BPD Interview Transcript of Woodard by Stevens 10/17/85 Taylor’s Ex. 11 114-9 BPD report by Stevens re Winslow 12/5/85 Taylor’s Ex. 101 117-11 BPD report by Stevens re Winslow blood report 12/9/85 Taylor’s Ex. 12 114-10 BPD report by Stevens re Taylor, White 12/9/85 Taylor’s Ex. 13 114-11 BPD report by Stevens re Taylor dated 12/11/85 Taylor’s Ex. 145 121-4 BPD Report by Stevens re B Smith 3/1/86 Taylor’s Ex. 102 117-12 Evaluation of White by Dr. Mead 9/22/89 Dean’s Ex. 23 110-3 DNA Report, UNMC 12/8/08 Taylor’s Ex. 100 117-10 Same as Dean’s Ex. 23 The defendants have also filed a motion to strike additional documents which have been filed as exhibits by the plaintiffs. Three categories of documents are listed in the motion to strike: (1) “the Affidavits of Donald Luckeroth and Richard Leo, Ph.D., Plaintiff Dean’s exhibits 27 and 28 [filings 111-2, 111-3] and White, et al.’s Exhibits 144, 142” [filings 121-3, 121-1]; (2) “any and all depositions taken in 2010”; and (3) “any exhibits ... created between 1985 and 1989 by the Beatrice Police Department.” (Filing 127 at 2.) These items will be taken up in reverse order. The defendants object to the Beatrice Police Department records as being irrelevant to the issue of qualified immunity because there is no showing that the records were considered by the Sheriff s Office in its investigation of the murder. This objection is overruled, but the exhibits in question are the same as those listed above as lacking proper foundation; therefore, they will not be considered. The defendants object to the use of any depositions taken in 2010 because in orders entered on August 25, 2009 (filing 30), and August 9, 2010 (filing 99), the court stayed all discovery in these cases. However, all of the depositions which are filed as plaintiffs’ exhibits were taken in connection with state court proceedings. These depositions were not taken in violation of the stay orders and are admissible for purposes of deciding the pending summary judgment motion. “Sworn deposition testimony may be used by or against a party on summary judgment regardless of whether the testimony was taken in a separate proceeding. Such testimony is considered to be an affidavit pursuant to Federal Rule of Civil Procedure 56(c), and may be used against a party on summary judgment as long as the proffered depositions were made on personal knowledge and set forth facts that were admissible in evidence.” Gulf USA Corp. v. Federal Ins. Co., 259 F.3d 1049, 1056 (9th Cir.2001) (citation omitted). The defendants’ objection is overruled. Finally, the defendants move to strike the affidavits of two expert witnesses. Donald Luckeroth, who was Chief of Police in Beatrice from 1974 to 1992, opines that the Sheriff’s Office violated the plaintiffs’ constitutional rights by obtaining “obviously false and uncorroborated” confessions from Dean, Taylor, and Shelden which led to the plaintiffs’ convictions. (Filings 111— 2, 121-3.) Richard Leo, a law professor with expertise “in the area of police interrogation practices, the psychology of police interrogation and suspect decision-making, psychological coercion, false confessions, and wrongful convictions” has the same opinion. (Filings 111-3, 121-1.) Mr. Luckeroth, after stating his understanding “that all people we investigate have certain rights that are protected by both the Constitution of the United States and the Constitution of the State of Nebraska, as well as the customs and usage of Nebraska law enforcement officers,” and detailing these rights, offers an opinion, based on an extensive review of documents, that he “believe[s] the conduct of the defendants in this case violated the Constitutional rights of the plaintiffs, ... and that this conduct was made with reckless or deliberate indifference to their Constitutional rights and disregard of the facts and resulted in their unlawful prosecution and eonviction[J” (Filings 111-2, 121-3.) Specifically, he believes (1) that “Deb Shelden, James Dean and Ada Joann Taylor were coerced under the threat of the death penalty to give confessions that were completely false;” (2) that “Deb Shelden, James Dean and Ada Joann Taylor were provided with facts and information which were false in an effort to obtain confessions and guilty pleas ...;” (3) that “County Attorney Richard Smith was leading and participating in the investigation of the entire Beatrice Six case and not acting in the role of a prosecutor, but more in the role of an investigator;” (4) that “Searcey, DeWitt and Lamkin, would interrogate James Dean and Kathy Gonzalez on numerous occasions without counsel present and threatened that if they did not cooperate and accept the plea agreement and make a confession, they would be subject to capital punishment;” (5) that “Searcey, DeWitt and Lamkin on many occasions advised James Dean that his lawyer, Richard Schmeling, knew they were interrogating him without his presence and that he had approved of the interrogations, when in fact Richard Schmeling knew nothing of the interrogations and would have instructed James Dean not to have conversations with law enforcement officers without his presence ... and all during this time they continued to threaten him with the death penalty;” (6) that confessions obtained from Dean, Shelden and Taylor were not “corroborated by the physical evidence found at the crime scene, a fact which any competent law enforcement officer would have recognized from the beginning of the 1989 investigation[;]” (7) that “[t]he confessions of Dean, Shelden and Taylor did not corroborate one another, let alone match the physical evidence found;” (8) that “Gonzalez was forced to accept a No Contest plea based on false evidence, the threat of capital punishment and her supposed ‘repressed memory’ of a crime she had no knowledge of and took no part in committing;” (9) that “Searcey, Lamkin, DeWitt, Price and Smith ignored the FBI profile prepared in the Beatrice Police investigation despite that it pointed to the fact that the wrong individuals had been arrested;” (10) that “Searcey, Lamkin and DeWitt consistently provided ‘facts’ to Taylor so that she could restore her ‘repressed memory’ and render a false confession despite the fact they knew that she was a drug and alcohol user, was susceptible being lead [sic] and had no independent memory of the ‘facts’ to which she ultimately testified at the trial of Joseph White, and which ‘facts’ did not corroborate the evidence at the crime scene;” (11) that “Seacey [sic], Lamkin and DeWitt consistently provided ‘facts’ to James Dean to restore his ‘repressed memory’ and render false testimony of witnessing the murder of Helen Wilson;” (12) that “Price advised Dean, Shelden, Taylor and Gonzalez that they had ‘repressed’ the memory of the crime and encouraged or coerced them into believing that they had in fact committed and been witness to the crime, which in fact they did not commit, and to falsely confess and fabricate a story about the facts of the case which were not true;” (13) that “Searcey, DeWitt, Lamkin, Price and Smith recklessly disregarded the abundance of physical evidence found at the crime scene which in essence matched none of the false confessions of Dean, Shelden and Taylor, which shows a reckless disregard for the Constitutional rights of the parties;” (14) that “Dean was forced to plead guilty to Aiding and Abetting Second Degree Murder of Helen Wilson and to testify against White ... with continuous threats of the death penalty and by convincing him that he was in fact present and had ‘repressed’ the memory of the crime, so that Dean in fact actually believed that the events occurred, when in fact he had actually no knowledge of the crime and took no part in committing the crime;” and (15) that “Searcey prepared an Affidavit for Arrest Warrant for James Dean mentioning only the statement of Debra Shelden of April 14, 1989, but excluding prior statements she made on April 13, 1989, and two statements made by Taylor, three statements made by Winslow, and one from Shelden that specifically did not mention Dean as being present at the scene of the crime,” and “neither Searcey, Lamkin or DeWitt sought to verify the alleged statement of Shelden on April 14, 1989, by corroborating that with the other witnesses who were allegedly there.” (Id.) Dr. Leo in his affidavit discusses “the social scientific study of police interrogation and false confessions,” “the social psychology of police interrogation,” “the three sequential errors that lead to false (but detailed and persuasive) confessions,” “evaluating the reliability of incriminating statements, admissions and confessions,” and “the problem of contamination.” (Filings 111-3 at 6 — 22; 120 — 1,121—1.) He then describes, based on a review of documents, various ways in which the defendants mishandled the murder investigation. (See id. at 22-29.) He concludes: In summary, it is my professional opinion that Searcey, Smith, DeWitt, Lamkin, and Price all acted with reckless disregard for and indifference to the truth in their police investigation and interrogations of White, Dean, Gonzalez, Taylor, Shelden and Winslow; that, with reckless disregard for the truth, they misclassified these individuals as guilty when reasonably and properly trained investigators would have known that no evidence remotely suggested their involvement in or detailed knowledge about the Helen Wilson murder; that with reckless disregard for the truth, they coerced and manipulated demonstrably false and unreliable confessions, eyewitness testimony and/or guilty or no contest pleas from Dean, Gonzalez, Taylor, Sheldon [sic] and Winslow; and that, with reckless disregard for the truth, they contaminated, fed and fabricated false confessions and statements from Dean, Taylor, Shelden and Winslow. It is also my professional opinion that, with reckless disregard for the truth and in reckless violation of national standards of proper police investigation and interrogation at the time, Searcey, Smith, DeWitt, Lamkin and Price coerced a persuaded false confession from Dean, and then recklessly attributed misleading specialized knowledge to him as well as the others. Finally, in my professional opinion, any reasonably trained police investigators following proper police procedures and with proper regard for the truth would have immediately realized that the incriminating statements and/or narrative confessions of Dean, Taylor, Shelden and Winslow were demonstrably false, were not supported by any logic or corroborated by any credible evidence, were inconsistent with one another and with known crime facts, were contradicted by existing case evidence, and were replete with multiple indicia of unreliability and no indicia of reliability. (Id. at 29 (emphasis in original).) In Peterson v. City of Plymouth, 60 F.3d 469 (8th Cir.1995), the United States Court of Appeals for the Eighth Circuit had occasion to consider whether expert opinion testimony was admissible to establish a defense of qualified immunity. The plaintiff claimed that he was unlawfully arrested. A self-described “police practices and procedures expert” was allowed to testify that the arresting officers had acted reasonably and in accordance with national standards and the Fourth Amendment. The Court of Appeals ruled it was reversible error to allow this testimony because it consisted of legal conclusions. The Court explained: Murphy’s testimony was offered to show that Officers Lindman and Bevins had acted reasonably in their encounter with Peterson. Over the course of his testimony, Murphy set forth his opinion as to why each action the officers took was consistent with “nationally accepted standards.” His overall opinion was that the officers’ conduct comported with the “standards under the Fourth Amendment.” Expert opinion testimony is admissible only if it “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702 .... [T]he only disputed issues at trial involved whether the officers actually had probable cause and whether, under qualified immunity analysis, they could reasonably believe they had probable cause. Both probable cause and qualified immunity are ultimately questions of law. See Estes v. Moore, 993 F.2d 161, 163 (8th Cir.1993) (per curiam) (probable cause); Engle v. Townsley, 49 F.3d 1321, 1323 (8th Cir.1995) (qualified immunity). The jury’s role is limited to settling disputes as to predicate facts. See Arnott v. Mataya, 995 F.2d 121, 123-24 (8th Cir.1993). In this case, that means the jury was entitled to determine what facts were known to the officers at the time of the arrest. None of Murphy’s testimony assisted the jury in this regard. Murphy’s testimony involved only his views concerning the reasonableness of the officers’ conduct in light of “Fourth Amendment standards.” To that end, his testimony was not a fact-based opinion, but a statement of legal conclusion. See Estes, 993 F.2d at 163. The legal conclusions were for the court to make. It was an abuse of discretion to allow the testimony. Id. at 475. Cf. Schmidt v. City of Bella Villa, 557 F.3d 564, 570 (8th Cir.2009) (expert opinions regarding reasonableness of evidence collection and strip-search procedures were impermissible legal conclusions). Similarly, the opinions of the plaintiffs’ experts in the present case cannot be used to establish the existence of a genuine issue of material fact concerning the defendants’ entitlement to qualified immunity. Neither Mr. Luckeroth’s knowledge about the practices of law enforcement officers in Beatrice, Nebraska, nor Dr. Leo’s familiarity with national standards for police investigation and interrogation are helpful to me in determining whether the defendants should be immune from suit under 42 U.S.C. § 1983. “Qualified immunity is a question of law not a question of fact.” McClendon v. Story County Sheriff’s Office, 403 F.3d 510, 515 (8th Cir.2005). “The threshold issue in a qualified immunity analysis is whether the facts viewed in a light most favorable to plaintiff show that the state actor’s conduct violated a federal constitutional or statutory right.” Id. The plaintiffs’ experts do not profess to have any first-hand knowledge of facts surrounding the homicide investigation (ie., the “predicate facts”); they only know what they have read in reports, affidavits, and depositions. Their opinions that the plaintiffs’ constitutional rights were violated are inadmissible conclusions of law. The second question asked in analyzing qualified immunity is “whether that [federal constitutional or statutory] right was clearly established at the time of the alleged violation, such that a reasonable official would have known that [his] actions were unlawful.” Doe v. Flaherty, 623 F.3d 577, 583 (8th Cir.2010). Considering that the plaintiffs were convicted 22 years ago, this is not an insignificant question in these cases. The plaintiffs’ experts do not address this question in their affidavits— and properly so, since this is “a legal question for the court to decide.” El-Ghazzawy v. Berthiaume, 636 F.3d 452, 459 (8th Cir.2011) (quoting Brown v. City of Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009)). II. Factual Background Richard Smith (“Smith”) was the duly elected Gage County Attorney during all times relevant to this matter. Smith has practiced law in Nebraska since his admission in July of 1976. Smith has practiced law in Beatrice since February of 1977. The Gage County Board of Supervisors appointed Smith as Gage County Attorney on April 1, 1980. Smith was elected to the position in 1982 and remained Gage County Attorney until January 5, 2007. Smith is currently an attorney in private practice in Beatrice, Nebraska. (DSF ¶ 1 (Ex. 1 [ECF 51-1, Affidavit of Richard Smith]).) Also, during all times relevant to this matter and pursuant to Neb. Rev.Stat. § 23-1210 (2007), Smith served as the ex officio Coroner for Gage County. In the Helen Wilson homicide, Smith performed all duties required of a coroner under Neb.Rev.Stat. § 23-1801, et seq. (DSF ¶ 2 (Ex. 1 [ECF 51-1]).) Burdette Searcey (“Searcey”) was employed from 1977 to 1982 as an investigator with the Beatrice Police Department (“BPD”). Searcey left law enforcement to farm. While farming, Searcey began the process of becoming licensed as a private investigator. In 1987, Searcey was hired as a Deputy Sheriff for the Gage County Sheriffs Office (“GCSO”) where he worked until he resigned in November, 1992. Since November 2007, Searcey has been a duly appointed Deputy Sheriff with the GCSO. Searcey completed all courses of training required by the Nebraska Commission on Law Enforcement in the State of Nebraska. (DSF ¶ 3 (Ex. 2 [ECF 59-1, Affidavit of Burdette Searcey], ¶ 2; Ex. 2A [ECF 59-2 at 1-2, Nebraska Law Enforcement Center certification]).) Wayne Price, Ph.D., (“Price”) was a commissioned Deputy Sheriff with the Gage County Sheriffs Office and served as a police psychologist during all times relevant to this matter. As a police psychologist for Gage County, Price received a retainer of $1 per year and was involved with multiple cases with Gage County as a patrol officer, as a negotiator, and in investigations. Since his separation from the U.S. Army as an Army Psychologist, Price attended hundreds of workshops and classes in a wide variety of issues as well as workshops in law enforcement issues. Price performed hundreds of court evaluations and criminal evaluations and consulted on a multitude of criminal cases. (DSF ¶ 5 (Ex. 3 [ECF 62-1, Affidavit of Wayne Price, PhD.], ¶ 2; Ex. 3A [ECF 62-2 at 1-9, CV of Dr. Price]).) Price was either asked by the criminal defendant or his/her defense counsel to consult or evaluate criminal defendants Shelden, Taylor, Dean, and Gonzalez. (DSF ¶ 6 (Ex. 3 [ECF 62-1],¶4).) Jerry DeWitt (“DeWitt”) was the duly elected Sheriff of Gage County from January 8, 1987, to when he retired in January 2007. Prior to his position as Gage County Sheriff, DeWitt was a Nebraska State Trooper from October 1, 1963, to December 31, 1986. DeWitt completed all courses of training required by the Nebraska Commission on Law Enforcement in the State of Nebraska to be a trooper and then again to perform the duties of Sheriff. DeWitt, along with his deputies, was required to take continuing law enforcement education. After DeWitt became Sheriff in 1987, he hired Searcey as a Deputy for the GCSO. (DSF ¶7 (Ex. 4 [ECF 62-3, Affidavit of Jerry DeWitt], ¶¶ 2, 4; Ex. 4A [ECF 62-4 at 1-2, Nebraska Law Enforcement Training Center Certification] ).) DeWitt’s role in the Wilson homicide was more administrative than investigative. He mostly coordinated interviews and meetings, traveled with the officers to arrest Taylor, White, and Gonzalez, and assisted in transporting the criminal defendants as needed. (DSF ¶ 8 (Ex. 4 [ECF 62-3], ¶ 5).) Gerald Lamkin (“Lamkin”) was a duly appointed Deputy Sheriff of Gage County, Nebraska, at all times relevant to this matter. He completed all courses of training required by the Nebraska Commission on Law Enforcement in the State of Nebraska. (DSF ¶¶ 9, 11, 13 (Ex. 5 [ECF 63-1, Affidavit of Gerald Lamkin], ¶ 2; Ex. 5A [ECF 63-2 at 1, Nebraska Law Enforcement Training Center Certification] ).) During the late night hours of February 5, 1985, or the early morning hours of February 6, 1985, Helen Wilson (“Wilson”) was raped and murdered in her apartment. The Beatrice Police Department headed up the investigation in its early stages, interviewing many persons and gathering forensic evidence from a multitude of persons of interest in the case. The investigation continued with some activity following leads and gathering evidence, but no arrests were made. (DSF ¶ 16 (Ex. 2 [ECF 59-1], ¶ 4; Ex. 3 [ECF 62-1], ¶ 3; Ex. 4 [ECF 62-3], ¶ 3; Ex. 5 [ECF 63-1], ¶ 3; Ex. 6 [ECF 63-3, Affidavit of Kent Harlan], ¶ 3; Ex. 7 [ECF 63-5, Affidavit of Mark Meints], ¶ 3).) BPD Chief Donald Luckeroth assigned BPD Sergeant Ralph “Sam” Stevens and BPD Lieutenant William Fitzgerald to the case. (Taylor’s Ex. 89 [ECF 116-8, Deposition of Donald Luckeroth, 8/19/10] at 14].) At Smith’s request, the GCSO and the Nebraska State Patrol (“NSP”) provided assistance to the BPD. (Id. at 16; Ex. 1 [ECF 51-1], ¶¶ 3, 5.) Luckeroth testified he didn’t think BPD needed the help. (Taylor’s Ex. 89 [ECF 116-8] at 17.) On March 9, 1985, Lt. Fitzgerald reported that he and NSP Investigator Terry Becker had driven to Oklahoma City, Oklahoma, to attempt to obtain body fluid samples from Bruce A. Smith, who was a suspect in the Wilson homicide. (Taylor’s Ex. 97 [ECF 117-7, BPD report, 3/9/85, Fitzgerald to Oklahoma for BA Smith].) With the assistance of an Oklahoma City police detective, Robert Bonny, they located Smith on March 7 in Edmond, Oklahoma, and Bonny persuaded Smith to return to Oklahoma City to voluntarily provide samples of his blood, saliva, and hair. (Id. at 2.) Less than an hour after the samples were taken, a lab technician at the Oklahoma City Police Department advised them “that in checking the blood sample she had received from Mr. Smith to see if he was a secretor or not she advised that it appeared as though he was a secretor.” (Id.) This information evidently was incorrect. On May 5, 1985, a written report was prepared by Dr. Reena Roy, a serologist at the NSP Criminalistics Laboratory, concerning the results of her examination of physical evidence the BPD recovered from Wilson’s apartment. (Taylor’s Ex. 90 [ECF 116-9, NSP lab report, 5/8/85, serology report on crime scene evidence].) Two blood types, O and B, were found on certain clothing and bedding items. It was determined from a sample of Wilson’s blood that she was type 0. (Id. at 2-3.) Testing of semen specimens recovered from Wilson’s body indicated her assailant was a non-secretor of blood group substances. (Id. at 3-4.) Sgt. Stevens reported that the BPD first received this lab test information through the county attorney’s office on February 12, 1985. (Taylor’s Ex. 1 [ECF 114-1, BPD report 3/31/89, Stevens’ final report] at 2.) Sgt. Stevens also reported that Joseph White stopped into the police station about the second week of February 1985 because he was planning on leaving town and had heard that he was wanted for questioning in connection with the Wilson homicide. After a brief interrogation during which White produced a military card showing he had type 0 blood, Stevens told White he could leave. (Id. at 3.) In early December 1985, however, Stevens asked authorities in North Carolina, where White was believed to be residing with Taylor, to contact White for the purpose of obtaining a blood sample; it was reported back that White could not be located. (Id. at 4.) On May 30, 1985, Sgt. Stevens received an offender profile that was prepared by FBI Special Agent Peter Klismet. (Id. at 3; Taylor’s Ex. 87 [ECF 116-6, FBI report and analysis of Wilson crime scene]; Dean’s Ex. 8 [ECF 106-3, FBI Criminal Personality Profile].) After considering the possibility there were two offenders, and specifically noting “the large amount of semen found inside the victim,” Klismet opined that “[t]he crime appears to have been committed by one single male individual.” (Taylor’s Ex. 87 [ECF 116-6] at 6; Dean’s Ex. 8 [ECF 106-3] at 6.) He thought it was “highly unlikely” that two offenders were involved in the crime because of “the likelihood that one of the two offenders[,] if there were two, would probably have elected to take money.” (Id. at 8.) He also opined that the “considerable amount of money and other negotiables found inside the victim’s residence” showed that “robbery [was] definitely not ... the motive for this attack.” (Id. at 5.) Klismet concluded that “[w]e can state with almost total certainty that this crime was committed by one individual acting alone.” (Id. at 8.) At the time of the Wilson homicide, Searcey was farming. Due to his experience in law enforcement and his knowledge of the Wilson family, Searcey began to investigate the matter at the behest of Wilson’s daughter. As a private citizen, Searcey was unable to obtain information about the homicide from the Beatrice Police Department. In 1985, Searcey contacted numerous individuals who were known to him from his years in law enforcement as persons who hung around the streets of Beatrice day and night. He was able to ascertain that White had been arrested by the BPD around the area where assaults had been occurring on elderly women. Further, Searcey’s former confidential informants assisted in identifying several persons who frequented the area where the Wilson homicide occurred. Searcey’s investigation led him to Joseph White, Thomas Winslow, Joann Taylor, Cliff Shelden, Mark Goodson, Beth Johnson, Debbie Brown (Shelden) and Charlotte Bishop as persons of interest. (DSF ¶ 19 (Ex. 2 [ECF 59-1], ¶¶ 5, 8; Ex. 2B [ECF 59-2 at 3-9, Searcey report dated February 28, 1989]).) Some of the persons of interest were known by alternate names according to various witnesses. White was also known as “Lobo.” (Id. (Ex. 2 [ECF 59-1], ¶ 13; Ex. 2C [ECF 59-2 at 10-23, Transcript of Searcey interview with Podendorf on January 15, 1989]).) Charlotte Bishop was also known as Charlotte Mindenhall or Charlotte Crumb. (Id. (Ex. 2 [ECF 59-1], ¶¶8, 13, 27; Ex. 2B [ECF 59-2 at 3-9]; Ex. 2C [ECF 59-2 at 10-23]; Ex. 20 [ECF 60-1 at 36-38, LPD Van Butsel’s report dated March 21, 1989]).) Searcey verified that Cliff Shelden was at the hospital on the night of Wilson’s homicide. Goodson indicated he was out of town that night and he had no knowledge of the incident other than what he had heard. Johnson claimed she had no knowledge of the crime, and Searcey verified that she was with her parents on that night. Winslow also claimed that he had no knowledge of the crime and that he was at work at a truck stop on that night. When Searcey called to verify Winslow’s statement, his employer indicated that Winslow had not shown up for his entire shift the night of Wilson’s homicide. Further, all of the persons interviewed stated that they had no knowledge of the whereabouts of White and Taylor, as they both abruptly left Beatrice shortly after the Wilson homicide and had not been heard from since then. (DSF ¶ 20 (Ex. 2 [ECF 59-1], ¶ 9; Ex. 2B [ECF 59-2 at 3-9]).) Due to Winslow’s lie about where he was on the night of Wilson’s homicide, Searcey recontacted one of his confidential informants who indicated that Lisa Podendorf might have information pertaining to the Wilson homicide. Podendorf advised that she received information from Taylor but that she was afraid to tell because Taylor threatened to kill her. (DSF ¶21 (Ex. 2 [ECF 59-1], ¶ 10; Ex. 2B [ECF 59-2 at 3-9] )•) On April 7, 1985, Searcey took a voluntary statement from Lisa Podendorf. She indicated that during a conversation the day after Wilson’s homicide, Taylor admitted that she and White had killed Wilson. To prove it to Podendorf, Taylor described how and where Wilson’s body was lying in the apartment. Podendorf repeated that she was scared to come forward because she feared for her life. (DSF ¶ 22 (Ex. 2 [ECF 59-1], ¶ 7; Ex. 2B [ECF 59-2 at 3-9]).) According to a report prepared by Searcey on February 28, 1989, Podendorf provided Searcey with the following information in April 1985: Lisa stated that at approximately 0730 hours or 0800 hours on February 6, 1985, while she was standing in Charles Park located by the Junior High School in the City of Beatrice, Nebraska, she was approached by Joann Taylor who began to visit with her. She stated that during their conversation she noted that there were several police cars in and about the apartment building located across the street from the Junior High building ... and that she had made a comment to Joann Taylor ... that she wondered why all the police cars were at that location. ... Joann Taylor then replied to her[,] “Oh haven’t you heard, there was an older lady killed there last night.” Lisa ... asked Joann Taylor what had happened, and Joann Taylor stated to her that an older lady was killed there and that she was killed by suffocation. Lisa ... asked Joann how she knew that and Joann stated that I know that because Lobo (Joseph White) and myself did it. Lisa ... replied back to Joann “Oh sure” in disbelief and ... Joann Taylor said[,] “Look I can tell you where the lady is laying and what happened to her.” ... Joann then advised her that the woman could be found laying in her living room near a hallway on her back with her hands bound and that her face would be covered with an afghan. Lisa ... made a comment to Joann “Oh sure I’ll bet you did it.” ... Joann Taylor then replied to Lisa[,] “Hey look I can prove it, I can even tell you the color of the foot stool that’s laying by the body” and Joann Taylor proceeded to state that there would be a foot stool laying by the body turned upside down and that the foot stool was vinyl covered, green in color. (Ex. 2B [ECF 59-2 at 8], p. 6; Taylor’s Ex. Ill [ECF 118-7, GCS report, 2/28/89, Searcey’s report of PI work & GCS investigation] at 6.) On April 15, 1985, Searcey took another voluntary statement from Lisa Podendorf. Searcey knew from a BPD lieutenant that half of a $5 bill was found at the crime scene. Podendorf indicated that White often performed a trick in which he would tear a $5 bill in half. Searcey spoke to the owner of the R & S bar that White frequented who stated that he was always ending up with torn bills in his cash drawer but that he had not seen White tear money in half. Winslow also confirmed that White would do a trick where he would tear a dollar bill in half. Based upon Searcey’s independent investigation, he was of the opinion that multiple persons committed the crime. Those suspects included White, Taylor, and Winslow. (DSF ¶ 23 (Ex. 2 [ECF 59-1], ¶¶6, 12; Ex. 2B [ECF 59-2 at 3-9]).) Searcey does not appear to have shared this information with the Beatrice Police Department. Chief Luckeroth, Sgt. Stevens, and Lt. Fitzgerald all testified that Searcey did not provide them with any leads. (Taylor’s Ex. 89 [ECF 116-8] at 32; Taylor’s Ex. 91 [ECF 117-1] at 52-53; Taylor’s Ex. 99 [ECF 117-9] at 44.) Fitzgerald indicated he and Searcey “might have talked about” Searcey’s investigation, but he never received “reports or anything.” (Taylor’s Ex. 99 [ECF 117-9] at 44.) Stevens said he was told Searcey “had an informant that he wanted me to interrogate sometime,” but he never actually produced any information. (Taylor’s Ex. 91 [ECF 117-1] at 52-53.) In 1987, DeWitt became Sheriff of Gage County and hired Searcey as a Deputy Sheriff for the Gage County Sheriffs Office. (DSF ¶ 24 (Ex. 4 [ECF 62-3], ¶ 6).) As a Deputy Sheriff, Searcey was then able to review BPD reports and obtain more information about the Wilson homicide. Searcey thought the reports verified the information he received during his independent investigation and confirmed his theory that more than one person was involved in the crime. (DSF ¶25 (Ex. 2 [ECF 59-1], ¶ 7; Ex. 2B [ECF 59-2 at 3-9]).) Searcey began expressing interest in the Wilson homicide investigation about three months after DeWitt hired him. Over the next five or six months, DeWitt and Searcey had several meetings wherein Searcey would go over what he had discovered during his own investigation of the matter. However, Searcey had not prepared official reports on that investigation since he was doing it on his own. (DSF ¶ 26 (Ex. 2 [ECF 59-1], ¶ 7; Ex. 2B [ECF 59-2 at 3-9]).) During early January 1989, DeWitt went to Smith’s office to talk about the Wilson homicide. DeWitt reported that Searcey believed that he had information concerning the Wilson homicide that merited further investigation. DeWitt told Smith, generally, that Searcey had an informant who claimed that an individual admitted to the crime. At that time, there were no written reports. Smith told DeWitt, as DeWitt knew since becoming Sheriff in 1997, that “if it’s not on paper it didn’t happen.” DeWitt agreed to get reports written and submitted to the County Attorney’s Office. (DSF ¶ 28 (Ex. 1 [ECF 51-1], ¶ 9).) DeWitt instructed Searcey to write down everything Searcey had done on his own and how his own investigation had progressed so that DeWitt could review it and consult with Smith in order to make a determination as to how to proceed. Searcey prepared an extensive report detailing his investigation from February 1985 through February 1989. (DSF ¶ 30 (Ex. 2 [ECF 59-1], ¶ 7; Ex. 2B [ECF 59-2 at 3-9]; Ex. 4 [ECF 62-3], ¶4).) After Searcey compiled his investigative report, it was forwarded to Smith. It detailed the information Searcey had secured while he was a private citizen. DeWitt conferred with Smith, and together, they decided that Seareey’s theory and information were worth investigating further. Smith was advised that Searcey would continue the investigation and make regular written reports. Smith also requested at that time that Sheriff DeWitt keep all law enforcement agencies that had worked on this case, the Beatrice Police Department, Nebraska State Patrol, the Lincoln Police Department, and Gage County Sheriff’s Office, current on the status of the investigation. DeWitt told Searcey to proceed with the investigation through the GCSO. (DSF ¶ 31 (Ex. 1 [ECF 51-1], ¶¶ 7, 10; Ex. 2 [ECF 59-1], ¶ 7; Ex. 2B[ECF 59-2]; Ex. 4 [ECF 62-3], ¶4).) On January 12, 1989, Searcey took a voluntary statement from Lisa Podendorf which was recorded. Podendorf confirmed that Searcey had talked with her in 1985 and that the information was only from the source and was not provided by Searcey. Podendorf also verified that Searcey did not arrange for Podendorf to come in to give a statement or tell her what to say. (DSF ¶ 32 (Ex. 2 [ECF 59-1], ¶ 13; Ex. 2C [ECF 59-2 at 10-23]).) This statement was recorded, and a transcript of Podendorfs statement is included in the record. (Ex. 2 [ECF 59-1], ¶ 13; Ex. 2C [ECF 59-2 at 10-23]; Taylor’s Ex. 16 [ECF 114-12, GCS recorded statement, 1/12/89, Lisa Podendorf Brown].) As in her previous statements, Podendorf said that Joann Taylor spoke to her at about 7:30 on the morning after the Wilson homicide occurred. (Ex. 2C [ECF 59-2 at 12-13], pp. 3-4;Taylor’s Ex. 16 [ECF 114-12], pp. 3-4.) According to Podendorf, Taylor approached her and asked her if she knew why police cars were around Wilson’s apartment building on 6th Street. (Id., p. 5.) Podendorf replied to Taylor, “I had heard that somebody had killed her.” (Id.) Taylor then told Podendorf that she knew who did it, and she showed Podendorf some scratch marks on her neck that, according to Taylor, were put there by Wilson. (Id.) Taylor told Podendorf that “me and Lobo” did it, and she threatened to kill Podendorf if she told anyone. (Id.) According to Podendorf, Taylor said that the police would find Wilson “laying on the living room floor by a foot-stool” that had been turned over, and that Wilson would be found with “her hands tied behind her back.” (Id., p. 6.) Taylor then said that she needed money so that she could leave town before the police found her. (Id.) Podendorf told Searcey that she knew Taylor to be friends with “Charlotte Crumb, um which is would be now Charlotte uh Bishop, and Debbie Brown, and Cliff Pm not sure what his last name is, it’s Debbie Brown’s husband, and Todd [sic] Winslow, and Beth Johnson,____” (Id.) Podendorf said she often saw White tear a piece of currency in half while telling a joke at parties. (Id., pp. 8-9.) She also said that White bragged about using “more than one name” and talked about being “involved with killing somebody in North Carolina.” (Id., p. 10.) Podendorf told Searcey that on the night of the homicide, she and her husband were “riding around” and found themselves behind Tom Winslow, Beth Johnson, Joann Taylor, and Joseph White, who were riding in a green 1972 Oldsmobile with a brown top. (Id., pp. 10, 13.) Podendorf said that she and her husband followed them, and she saw them park and exit their vehicle near Wilson’s apartment building at 10:18 p.m. (Id., p. 10.) In his affidavit, Searcey says that Podendorf claimed to have seen Winslow, Johnson, Taylor, and White “go into the apartment building.” (Ex. 2 [ECF 59-1], ¶ 13.) In her statement, however, Podendorf said that she did not “see anything else” after she watched the group exit their vehicle. (Ex. 2C, p. 11 [ECF 59-2 at 20]; Taylor’s Ex. 16 [ECF 114-12], p. 11.) On February 13, 1989, Searcey re-interviewed Winslow and confronted him with the lie about being at work on the night of the Wilson homicide. Winslow admitted that he lied and that he skipped work on February 5, 1985. (DSF ¶ 33 (Ex. 2 [ECF 59-1], ¶ 14; Ex. 2B [ECF 59-2 at 3-9]).) According to Searcey’s February 28, 1989, report, Winslow said during this interview that he loaned his vehicle — “a 1973 Oldsmobile Cutlass brown over green” — to Joann Taylor and Joseph White on the evening of the homicide; that Winslow was aware that his vehicle had been “seen in and about the alley located by the apartment complex where Helen Wilson resided”; that Winslow became “scared” Taylor and White were involved in the homicide after he heard them say that “the police are going to be coming and questioning” Winslow; and that Winslow was scared he would become involved in the case. (Ex. 2B [ECF 59-2 at 7-8], pp. 5-6; Taylor’s Ex. 111 [ECF 118-7] at 5-6.) The interview took place at the Lancaster County Correctional Center where Winslow was in custody. (Id., p. 5; Taylor’s Ex. 18 [ECF 114-14] at 1.) Winslow testified in his deposition that he lied to Searcey about loaning his vehicle to Taylor and White because “Searcey had convinced me that my car was involved in the area and stuff like that.” (Taylor’s Ex. 104 [ECF 117-14] at 16.) He also claims that he named Taylor and White because Searcey had mentioned them before the recorded interview started. (Id. at 21.) On February 25, 1989, Searcey took a voluntary statement from Charlotte Bishop in the office of her attorney, MariClaire Thomas. At the time of the Wilson homicide, Bishop was Taylor’s roommate. Bishop stated that on February 6, 1985, Taylor returned to their apartment acting nervous and admitted to Bishop that she may have been involved in the homicide of an elderly woman. Taylor further stated that she had to leave town. Bishop indicated that she was scared to come forward because Taylor threatened her life. Bishop stated she believed Taylor’s threat because Taylor previously had caused Bishop to get second-degree burns by forcing her into a bathtub filled with scalding water. (DSF ¶ 34 (Ex. 2 [ECF 59-1], ¶ 15; Ex. 2B [ECF 59-2 at 3-9]; Ex. 2D [ECF 59-2 at 24-31, Partial transcript of Bishop statement taken on February 25, 1989]).) A complete copy of the transcribed statement is in the record. (Taylor’s Ex. 17 [ECF 114-13, GCS recorded statement, 2/25/89, Charlotte Bishop].) Bishop stated that “the night that this happened [Taylor] didn’t come home at all. She came home the next morning or ... the next afternoon, and um she was just she was like she was terrified. She was just acting real strange.” (Id. at 6.) According to Bishop, Taylor said, “I think I killed somebody.” (Id.) Taylor did not provide any details. “She just said five got to get out of here. I’ve got to get out of town.” (Id. at 7.) Bishop also stated, “[s]he just told me to keep my mouth shut or something was gonna happen to me.” (Id.) In early March 1989, the investigation was at a point where a statement needed to be taken from Winslow. Smith was contacted by the Gage County Sheriffs Office to determine whether or not use immunity would be offered to induce Win-slow to give a statement. At that time, Winslow was in custody in Lancaster County on separate felony charges. As Gage County Attorney, Smith contacted then Lancaster County Attorney Michael G. Heaviean and consulted with deputies in that office as well as the Gage County Sheriffs Office and Winslow’s attorney, John Stevens Berry, over the terms of any immunity argument that would be extended to Mr. Winslow. (DSF ¶ 35 (Ex. 1 [ECF 51-1], ¶¶ 11,12).) On March 13, 1989, Smith traveled to Lincoln, Nebraska, with Sheriff DeWitt to discuss the Wilson homicide with counsel for Winslow, John Stevens Berry. Smith advised Mr. Berry that Smith would agree to use immunity for Winslow for his truthful statement concerning the Wilson homicide. Mr. Berry indicated that Winslow, his client, would state that Taylor and White discussed committing a felony at Wilson’s apartment. Winslow would state he wanted nothing to do with it and walked away. Winslow would also corroborate Lisa Podendorf s statement that a vehicle, matching the description of Winslow’s car and having occupants Taylor and White, was seen parking next to the location where Wilson was found dead on February 5, 1985, the night of the homicide. This observation was made by Lisa Podendorf at 10:18 p.m. on February 5, 1985. He would also state that Taylor and White admitted to Winslow that they killed Wilson. Winslow could bracket the time of the homicide. The agreement would be void if Winslow failed to tell the truth or if he participated. The statement was to be videotaped, and his counsel would be present. All parties agreed to these conditions. (DSF ¶ 86 (Ex. 1 [ECF 51-1], ¶¶ 12, 13; Ex. 4 [ECF 62-3], ¶ 7; Ex. 4B [ECF 62-4 at 3-4, DeWitt reports dated March 20,1989]).) On March 14, 1989, Searcey finalized a sworn affidavit for an arrest warrant for Taylor and White prior to going to Lincoln for the use immunity statement with Win-slow. The Gage County Attorney’s Office prepared complaints and filed the sworn affidavits and complaints with the Gage County Court. The Honorable Steven B. Timm issued the warrants. (DSF ¶ 38 (Ex. 1 [ECF 51-1], ¶ 15; Ex. 2 [ECF 59-1], ¶ 17; Ex. 2F [ECF 59-2 at 41-49]).) On March 14, 1989, Smith, DeWitt, Searcey, and Harlan traveled to Lincoln for the use immunity statement of Win-slow. Winslow was interviewed by Searcey in the presence of John Stevens Berry, Smith, DeWitt and Harlan. Harlan videotaped the interview. Winslow stated that on February 5,1985, he was in his car with White, Taylor, and Beth Johnson, and Taylor and White mentioned robbing an old lady. Winslow admitted that he then drove to Wilson’s apartment building and that all four of them went inside. Winslow also stated that Taylor and White pushed Wilson into the bedroom from which he heard a scream. Thereafter, he looked into the room where he saw them attacking Wilson. Winslow stated that he panicked and left with Johnson. (DSF ¶ 37 (Ex. 1 [ECF 51-1], ¶ 14; Ex. 1C [ECF 51-2 at 11, Smith’s notes dated March 14, 1989]; Ex. 2 [ECF 59-1], ¶16; Ex. 2E [ECF 59-2 at 32-40, Searcey report dated March 27, 1989]; Ex. 4B [ECF 62-4 at 3-4]; Ex. 6B [ECF 63-4 at 2-3, Harlan report dated March 20,1989]).) A transcript of Winslow’s March 14, 1989, interview appears in the record. (Taylor’s Ex. 21 [ECF 114-16, GCS recorded statement, 3/14/89, Thomas Win-slow]; Dean’s Ex. 14 [ECF 107-4, Gage County Sheriffs Office Supplementary Report dated March 14, 1989].) Winslow stated that on the evening of February 5, 1985, he was at Charlotte Bishop’s apartment along with Beth Johnson, Cliff Shelden, Joann Taylor, and Joseph White. Initially, Winslow claimed that he left the apartment with Taylor and White at around 9:30 p.m. to go for a ride in his car with White driving, but that he got out of the car and returned to the apartment when White and Taylor starting discussing robbery because he “didn’t want no part of it.” (Id. at 4-5.) Under questioning by Searcey, Winslow changed his story and admitted going to Wilson’s apartment building: Searcey: Okay Tom, I’m talking about the night when you were driving around with Lobo and Joann in your car, you were driving first, they wanted to borrow it, you were thinking about letting them use it and at a certain point of time while you were riding around with them you let Lobo drive the car, is that correct? Winslow: Yes