White v. Smith (808 F. Supp. 2d 1174, 2011)

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE

WARREN K. URBOM, Senior District Judge.

On June 29, 2010, Defendants Richard Smith, Jerry DeWitt, Burdette Searcey, Wayne Price, Gerald Lamkin, Kent Harlan, and Mark Meints filed a motion for summary judgment. (ECF No. 61.) On January 23, 2011, briefing on this motion was completed, and the defendants filed a motion to strike certain exhibits that the plaintiff, Joseph E. White, submitted in opposition to the defendants’ motion for summary judgment. (ECF No. 129.) My analysis of these motions follows.

I. THE DEFENDANTS’ MOTION TO STRIKE

In their motion to strike, the defendants argue that I should not consider the following exhibits when determining whether the individual defendants are entitled to qualified immunity: 1) the affidavit of Donald Luckeroth, 2) the affidavit of Richard Leo, 3) “any and all depositions taken in 2010 submitted as ... Exhibits by Plaintiffs,” and 4) “any exhibits submitted that were created between 1985 and 1989 by the Beatrice Police Department.” (Defs.’s Mot. to Strike at 2, ECF No. 129.)

A. The Luckeroth and Leo Affidavits

The defendants have moved to strike the affidavit of Donald F. Luckeroth, (see generally Luckeroth Aff., PL’s Ex. 144, ECF No. 113-3), and the affidavit of Dr. Richard A. Leo, (Leo Aff., PL’s Ex. 142, ECF No. 112-1 to 113-1). (See Defs.’ Br. at 1, 4-5, ECF No. 130.) I have found that it is unnecessary for me to consider these affidavits in order to resolve the defendants’ motion for summary judgment; therefore, the defendants’ motion to strike these affidavits will be denied as moot.

B. The 2010 Depositions

The defendants have moved to strike “any and all depositions taken in 2010 submitted as an Exhibits [sic] by Plaintiffs with their opposition.” (Defs.’ Mot. at 2, ECF No. 129.) More specifically, the defendants object to my consideration of the Deposition of Donald Luckeroth (PL’s Ex. 89, ECF No. 108-8), the Deposition of Ralph Stevens, (PL’s Ex. 91, ECF No. 109-1), the Deposition of William Fitzgerald, (PL’s Ex. 99, ECF No. 109-9), the Deposition of Thomas Winslow, (PL’s Ex. 104, ECF No. 109-14), the Deposition of Kathleen Gonzalez, (PL’s Ex. 109, ECF No. 110-5), the Deposition of Ada Joann Taylor taken on September 28, 1989, (PL’s Ex. 115, ECF No. 110-11), the Deposition of James Dean (PL’s Ex. 122, ECF No. 111-5), and the Deposition of Ada Joann Taylor taken on November 3, 2010 (Pl.’s Ex. 140, ECF No. 111-23).

The defendants argue first that these depositions must be stricken because they were “taken in violation of the Court’s Order to Stay.” (See Defs.’ Br., Attach. 1 at 14-18, ECF No. 130-1.) It is true that on June 30, 2010, the defendants filed a “Motion to Stay Proceedings,” (ECF No. 76), and on August 12, 2010, 2010 WL 3199866, the magistrate judge entered an order stating, “All discovery in this case shall be stayed until 30 days after the court rules on the defendants’ pending motion for summary judgment,” (ECF No. 102). With the exception of the Deposition of Ada Joann Taylor taken on September 28, 1989, the depositions listed above were taken during the period covered by the discovery stay ordered by the magistrate judge. However, none of these depositions was taken in the instant case (or any of the cases in the group that includes the instant case). The Deposition of Ada Joann Taylor dated September 28, 1989, was taken in State v. White, Doc. K, Page 46 (Gage Cnty. Ct.), and the remaining depositions were taken in connection with a group of Nebraska state cases that includes Dean v. State, No. CI 10-90 (Gage Cnty. Ct.), Taylor v. State, No. CI 10-91 (Gage Cnty. Ct.), White v. State, No. CI 10-92 (Gage Cnty. Ct.), Winslow v. State, No. CI 10-93 (Gage Cnty. Ct.), and Gonzalez v. State, No CI 10-94 (Gage Cnty. Ct.). Because the depositions were taken in state cases that were not subject to the discovery stay imposed in the instant case, it cannot be said that these depositions were taken in violation of the magistrate judge’s order.

In their reply brief, the defendants state,

... Plaintiffs White et al. argue that Defendants’ contention that the depositions taken in the State case were taken in violation of the Court’s Order to Stay is not true. However, during the hearing on the Defendants’ Motion to Stay, the Court indicated that it would not try to control discovery in the State case, but that such evidence that might be obtained through the State case is likely to be inadmissible in the current federal case. The Plaintiffs continued with discovery in the State case at their own peril. The Court, upon the Defendants’ objections, should disallow discovery submitted in the federal case that was taken during the time in which the Stay was in place.

(Defs.’ Reply Br. at 4, ECF No. 134.) I note in passing that I can find no record of any hearing on the defendants’ motion to stay, nor can I verify that the magistrate judge warned the parties that the state court depositions might not be admissible in the instant case. In any event, I remain unpersuaded that the depositions cannot be considered merely because discovery was stayed in the instant case.

The defendants have also made broad hearsay, relevance, and foundation objections to the depositions. (See Defs.’ Br., Attach. 1 at 14-18, ECF No. 130-1.) To the extent that these objections are directed to the depositions in their entireties, the objections are overruled.

In the reply brief that they have submitted in support of their motion for summary judgment, the defendants argue that the 2010 depositions of Winslow, Taylor, and Gonzalez should not be considered because they are “self-serving” and because there is “nothing in the record to support the allegations contained therein.” (Defs.’ Reply Br. at 9, ECF No. 128.) In essence, the defendants argue that because there is no evidence apart from the depositions “to dispute the material facts presented by the Defendants,” and because there is no evidence of an improper motive on the part of the investigators, I should disregard the depositions. (Id. at 11.) The defendants’ argument is not persuasive. I shall not exclude the plaintiffs exhibits on the ground that there is not more evidence available in some other form to corroborate witnesses’ sworn statements.

C. The Beatrice Police Department Records

The defendants have moved to strike “any exhibits submitted that were created between 1985 and 1989 by the Beatrice Police Department.” (Defs.’ Mot. at 2, ECF No. 129.) The defendants argue first that I must strike these “BPD Reports” because they are irrelevant and because there has been “no showing that the Defendants considered these documents in their investigation.” (See Defs.’ Br., Attach. 1 at 7-8, 10-12, 14-16, 18-19.) I note, however, that in the brief filed by the defendants in support of their summary judgment motion, the defendants argue that when Sheriff DeWitt hired Burdette Searcey as a Deputy Sheriff, “Searcey was then able to review BPD reports and obtain more information about the Wilson homicide.” (Defs.’s Br. at 11, Statement of Facts ¶ 25, ECF No. 62.) According to Searcey, the BPD reports “verified information [Searcey] received in [his] independent investigation and confirmed his theory that more than one person was involved in the crime.” (Id.) In light of these facts, the defendants’ argument that the BPD reports are irrelevant is not well-taken.

The defendants also submit — without supporting argument or elaboration— “Hearsay” and “Foundation” objections to the BPD reports. (See Defs.’ Br., Attach. 1 at 7-8,10-12, 14-16, 18-19.) The hearsay objection is overruled. The defendants’ foundation objection, however, merits discussion.

Though their motion to strike does not expressly challenge the authenticity of the BPD reports, I note that in the reply brief submitted in support of their motion for summary judgment, the defendants state, “Most of the Plaintiffs exhibits are inadmissible and presented without authentication.” (Defs.’ Reply Br. at 4, ECF No. 128.) A document that has not been authenticated cannot be considered in connection with a summary judgment motion. See, e.g., 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)). “Federal Rule of Evidence 901(a) provides that the requirement of authentication is satisfied by ‘evidence sufficient to support a finding that the matter in question is what its proponent claims.’ ” Jones v. National American University, 608 F.3d 1039, 1045 (8th Cir.2010). “The 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.’ ” Id. (quoting United States v. Wadena, 152 F.3d 831, 854 (8th Cir.1998)). “This may be done with circumstantial evidence.” Id. (quoting Wadena, 152 F.3d at 854). See also United States v. Natale, 526 F.2d 1160, 1173 (2d Cir.1975) (providing an example of authentication by circumstantial evidence). Here, the BPD reports submitted for my consideration by the plaintiff are accompanied by an affidavit stating, in pertinent part, that one of the plaintiffs attorneys “prepared the evidence accompanying this affidavit” and “personally know[s] that the exhibits ... 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.” (Patterson Aff. ¶¶ 1-3, ECF No. 106.) Although I have no reason to doubt that Mr. Patterson has provided me with exhibits that “are true and correct copies of the documents” that have come into his possession during the course of this litigation, his affidavit is insufficient to support a finding that the BPD documents are what he claims them to be.

I am mindful of the fact that a discovery stay has likely prevented the plaintiff from establishing the authenticity of some exhibits. Nevertheless, the Eighth Circuit’s instructions are clear, and I cannot consider documents that have not been authenticated. I therefore grant the defendants’ motion to strike the documents to which they have made foundation objections— including several BPD reports and certain other exhibits. Specifically, I shall strike the plaintiffs exhibits numbered 3-4, 7-13, 19, 44, 85-86, 88, 92-96, 98, 100-103, 105, 139, and 145. (See Defs.’ Br., Attach. 1 at 7-8, 10-11,12, 14-16, 18-19.) Although I shall not consider these exhibits, I shall occasionally call attention to them when they appear to corroborate other evidence in the record.

D. Additional Objections

If I find it necessary to rule explicitly upon any objections that have not been addressed above, those rulings will appear in the pages that follow.

II. THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

The defendants argue that summary judgment must be entered in their favor because they are entitled to qualified immunity. (See Mot. for Summ. J. at 1-2, ECF No. 61.) For the following reasons, I must deny the defendants’ motion.

A. Background

The facts set forth below are taken from the defendants’ statement of facts, (Defs.’ Br. at 4-45, ECF No. 62), and the “Factual Background” section of the plaintiffs brief, (PL’s Response Br. at 2-65, ECF No. 105). In setting forth these facts, I have construed the underlying evidence in a light favorable to the plaintiff, and I have afforded him the benefit of all reasonable inferences. E.g., Preston v. City of Pleasant Hill, 642 F.3d 646, 651 (8th Cir.2011); McKenney v. Harrison, 635 F.3d 354, 358 (8th Cir.2011).

1. The Defendants’ Objections to the Plaintiffs Facts

Preliminarily, I must address the defendants’ arguments that the plaintiff “failed to respond to the Defendants’ statement of material facts in the manner required by NECivR 56.1(b)(1).” (Defs.’ Reply Br. at 3, ECF No. 128.) The defendants claim that the plaintiff: 1) responded to the defendants’ statement of facts with a citation to a “self-serving affidavit,” and thereby “failed to point to the record to show a material issue of fact”; 2) submitted “a multitude of exhibits not even mentioned in the brief’; 3) distributed citations to exhibits “throughout the brief so it is impossible to determine ... which of the Defendants’ facts” the plaintiff disputes; 4) submitted a narrative discussion of facts that does “not correspond at all to the Defendants’ statement of facts”; and 5) failed to submit “a concise response to the [defendants’] statement of material facts” that addresses “each numbered paragraph in the movant’s statement” and includes “pinpoint citationfs] to ... proper [supporting] record[s].” {Id. at 4-5.)

Many of the defendants’ points are well-taken. I am not obliged to consider any exhibits appearing in the plaintiffs index of evidence that have not been cited in the plaintiffs brief — though the rules allow me to consider those materials if I choose to do so. See Fed.R.Civ.P. 56(c)(3) (“The court need consider only the cited materials, but it may consider other materials in the record.”). Also, I am not obliged to track down support for factual assertions in the plaintiffs brief if those assertions are not accompanied by pinpoint citations to supporting exhibits.

It is also true that the plaintiff has submitted a narrative response to the defendants’ statement of facts, and the plaintiffs narrative lacks references to the numbered paragraphs of the defendants’ statement. The defendants suggest that, as a sanction for the plaintiffs failure to draft a response that corresponds to their statement of facts paragraph-for-paragraph, I should deem all of the facts set forth in the defendants’ statement “admitted and uncontroverted.” (Defs.’ Reply Br. at 4-5, ECF No. 128.) The defendants cite Nebraska Civil Rule 56.1(b) in support of their position. {See id.) In pertinent part, Rule 56.1(b) states,

(1) Response to Movant’s Statement.

The 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.

(Emphasis in original).

I have reviewed carefully the plaintiffs response to the defendants’ statement of material facts, and although it is not without shortcomings, I cannot say that it offends Rule 56.1(b) in such a way that the defendants’ statement of facts must be deemed admitted.

Rule 56.1(b)(1) states that the opposing party’s response must be “concise.” I would not call the plaintiffs narrative response “concise,” because it includes a number of assertions that lack references to supporting materials and/or amount to argument (as opposed to recitations of fact). (See, e.g., Pl.’s Br. at 55 (“Kathy Gonzalez: The Misfortune of Having Type B Blood”).) It also includes some superfluous details. (See, e.g., id. at 9-10 (describing the plaintiffs early life).) These portions of the plaintiffs response will be disregarded. I note, however, that unlike Rule 56.1(a), which governs the statements of material facts that must be submitted by moving parties, Rule 56.1(b) does not state that opposing parties must submit a response that consists of “short numbered paragraphs.” NECivR 56.1(a)(2) (emphasis omitted). The fact that the plaintiffs response lacks numbered paragraphs does not violate the local rule.

Rule 56.1(b)(1) also states that the response “should address each numbered paragraph in the movant’s statement,” and that it should include pinpoint citations to the record “in the case of any disagreement.” It warns that the “[p]roperly referenced material facts in the movant’s statement” are deemed admitted “unless controverted in the opposing party’s response.” The defendants interpret this portion of the rule to mean that the plaintiffs response must not only address each of the numbered paragraphs in their statement of facts, but must “correspond” to their statement of facts. (Defs.’ Reply Br. at 5.) I take it that the defendants mean that the plaintiffs response must be organized in a sequence that matches that of the defendants’ statement of facts; or, perhaps the defendants mean that the plaintiffs response must include pinpoint references not only to the records it draws upon for support, but also to the defendants’ own statement of facts.

There is support for the defendants’ interpretation of the rule. In VanHorn v. Nebraska State Racing Commission, No. 4:03CV3336, at 3 (D.Neb. July 1, 2005), rev’d on other grounds, 457 F.3d 844 (8th Cir.2006), another court in this district held that Rule 56.1(b)(1) was violated where “[t]he plaintiffs ... supplied their own statement of material facts in 50 numbered paragraphs that [did] not correspond to the defendants’ statement, and ... interspersed additional facts throughout their 47-page brief.” The plaintiff ignores cases such as VanHom at his peril. Although district court decisions are not binding precedent, see, e.g., Camreta v. Greene, — U.S.-, 131 S.Ct. 2020, 2033 n. 7, 179 L.Ed.2d 1118 (2011) (“A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.” (quoting 18 J. Moore et al., Moore’s Federal Practice § 134.02[l][d], p. 134-26 (3d ed. 2011))), a district court is free to interpret its own local rules, and its interpretation is generally owed deference on appeal, see, e.g., Morgan Distributing Co., Inc. v. Unidynamic Corp., 868 F.2d 992, 996 (8th Cir.1989).

I note, however, that unlike local rules in other jurisdictions, Local Rule 56.1(b)(1) does not provide clear notice that a response must correspond to the movant’s statement of facts. Compare NECivR 56.1(b)(1) with W.D. Mo. Local Rule 56.1(a) (“Each fact in dispute shall be set forth in a separate paragraph [in the respondent’s suggestions in opposition to summary judgment], ... and, if applicable, shall state the paragraph number in movant’s listing of facts that is disputed.”). In other words, it seems to me that one can “address” and “controvert” the numbered paragraphs in a moving party’s statement of material facts — and thereby comply with the letter of Rule 56.1(b)(1) — without drafting a response that “corresponds” to the statement of material facts in the manner that the defendants demand.

Because I am not persuaded that the plaintiff has violated the terms of Rule 56.1(b)(1) as currently written, I shall not disregard the plaintiffs facts out-of-hand. See Jenkins v. Winter, 540 F.3d 742, 747 (8th Cir.2008) (holding that because the plaintiff complied with the terms of the relevant local rule, the district court erred by not considering the plaintiffs statement of facts). Nevertheless, the plaintiffs response is problematic. On the one hand, the response generally does address each paragraph of the defendants’ statement of facts wherein disagreement lies, and it generally does include pinpoint citations to the materials upon which the plaintiff relies. On the other hand, because the response does not correspond (or cite) to the defendants’ statement of facts, and because the parties’ submissions are so lengthy, it is difficult for me to gather the undisputed facts and identify areas of dispute.

I have reviewed the plaintiffs response, I have compared the response with the defendants’s statement of facts, and I have attempted to identify all of the material facts — including those that are genuinely disputed. However, the plaintiff must bear the risk that, due to the lack of correspondence between his response and the defendants’ statement of facts, I might fail to identify a genuine dispute raised somewhere within his narrative.

2. The Parties

Plaintiff Joseph E. White was a resident of Beatrice, Nebraska, in February 1985. (E.g., Pl.’s Ex. 1 at 3, ECF No. 106-1.) He was known by the nickname “Lobo.” (E.g., Searcey Aff. ¶ 13, Def.’s Ex. 2, ECF No. 71-1.)

Defendant Richard Smith was appointed to the position of Gage County Attorney by the Gage County, Nebraska, Board of Supervisors on April 1, 1980. (Smith Aff. ¶ 1, Defs.’ Ex. 1, ECF No. 63-1.) In 1982, Smith was elected to that same position, and he remained Gage County Attorney until January 5, 2007. (Id.) During all relevant times, Smith also served as the ex officio coroner for Gage County, and he “performed all duties required of a coroner” in the Helen Wilson homicide case. (Id. ¶ 2.) I note in passing that Smith has been dismissed from this action insofar as he is sued in his individual capacity. (See Mem. & Order on Defs.’ Mot. to Dismiss, ECF No. 43.)

Defendant Burdette Searcey was employed as an investigator with the Beatrice Police Department (BPD) from 1977 until 1982. (Searcey Aff. ¶ 2.) Donald Luckeroth, who was then the Chief of the Beatrice Police Department, testified in his deposition that he was not sorry to see Searcey leave the department because Searcey “wasn’t a team worker.” (PL’s Ex. 89 at 25, ECF No. 108-8.) According to Luckeroth, Searcey had problems with another BPD Officer, Sam Stevens, during their time together on the force. (Id. at 27-28.) Although Searcey had not been assigned to an investigation that was being conducted by Stevens, Searcey “wanted to take over the investigation,” conducted interviews with people, and discussed his findings with the county attorney, but he then failed to prepare reports for the BPD or inform Stevens that he had conducted the interviews. (Id. at 28.) Stevens testified that he was above Searcey in the chain of command, but he felt like Searcey “was out to get [him] for some reason.” (Pl.’s Ex. 91 at 49, ECF No. 109-1.) William Fitzgerald, who was Searcey’s friend and superior officer at the BPD, testified that Searcey left the department “on good terms,” and Fitzgerald was not aware of any problems or bad feelings between Searcey and the BPD. (Pl.’s Ex. 99 at 38, 41, ECF No. 109-9. See also id. at 79 (indicating that Searcey occasionally had to be prodded to turn in reports, but was otherwise a good officer).) According to Luckeroth, however, Searcey said that the BPD had “very poor administration” when he left the force. (Pl.’s Ex. 89 at 65.)

Searcey became a farmer after leaving the BPD in 1982, but he also “began the process of becoming a licensed private investigator.” (Searcey Aff. ¶2.) He reapplied to the BPD a few years later, but the Civil Service Commission decided not to rehire him. (PL’s Ex. 89 at 27, 65.) He was hired as a deputy sheriff for the Gage County Sheriffs Office (GCSO) in 1987. (Id.) He resigned from his position in the GCSO in November 1992. (Id.)

Defendant Wayne Price, Ph.D., was, at relevant times, a part-time deputy sheriff and police psychologist for the GCSO. (Price Aff. ¶¶ 1-2, Defs.’ Ex. 3, ECF No. 74-1.) He was involved in “multiple cases with Gage County as a patrol officer [and] as a negotiator,” he performed “hundreds of court evaluations and criminal evaluations,” and he “consulted on a multitude of criminal cases.” (Id.)

Defendant Jerry DeWitt was a Nebraska State Trooper from October 1, 1963, to December 31, 1986. (DeWitt Aff. ¶2, Defs.’ Ex. 4, ECF No. 74-3.) He was elected Sheriff of Gage County, Nebraska, on January 8, 1987, and he continued to serve in that position until he retired in January 2007. (Id. ¶ 1.)

At relevant times, Defendant Gerald Lamkin, Kent Harlan and Mark Meints were deputy sheriffs for the GCSO. (Lam-kin Aff. ¶ 2, Defs.’ Ex. 5, ECF No. 75-1; Harlan Aff. ¶2, Defs.’ Ex. 6, ECF No. 75-3; Meints Aff. ¶2, Defs.’ Ex. 7, ECF No. 75-5.)

3. The Wilson Homicide and Investigation

During the night of February 5, 1985, Helen Wilson was raped and murdered in her apartment in Beatrice, Nebraska. (E.g., Smith Aff. ¶ 3.) Her body was discovered at approximately 9:30 a.m. on February 6. (Smith Aff. Ex. 1A at 1, ECF No. 63-2.) The BPD opened an investigation, and BPD Chief Donald Luckeroth assigned BPD Sergeant Stevens and BPD Lieutenant William Fitzgerald to the case. (PL’s Ex. 89 at 14, ECF No. 108-8.) At Smith’s request, the GCSO and the Nebraska State Patrol (NSP) provided assistance to the BPD. (Id. at 16; Smith Aff. ¶¶ 3, 5.) On February 6, 1985, Smith, acting in his capacity as Gage County coroner, authorized an autopsy. (Smith Aff. ¶ 4.) The results of the autopsy indicated that Wilson’s death likely occurred sometime between 8 p.m. and midnight on February 5. (Id.)

The BPD’s investigation of the crime scene revealed that the door stop at Wilson’s apartment appeared to have been pried away from the door frame. (PL’s Ex. 2 at 2, ECF No. 106-2.) A “vicious struggle” seemed to have occurred in the bedroom, and blood was found on the bedding and on the wall. (Id. at 1-2.) A small, black-handled steak knife similar to the knives in Wilson’s kitchen was found in the bedroom under a box of tissues. (Id. at 2.) Wilson’s body was discovered in the living room. (Id. at 1.) A scarf had been wrapped tightly around her head and mouth, and her hands were bound loosely by a towel. (PL’s Ex. 45 at 3-4, ECF No. 107-5.) She had suffered traumatic fractures to her sternum, left fifth and sixth ribs, and left humerus. (Id. at 2.) She had also suffered abrasions to her face, anteri- or thorax, and right knee, and she had “[d]efense wounds” on her left thumb and right wrist “consistent with sharp instrument lacerations.” (Id.) The autopsy indicated that Wilson died by suffocation. (Id.) It also indicated that she had been raped vaginally and anally, and evidence suggested that the “rape may have occurred after the heart stopped beating.” (Id.)

More than $1000 in cash was found in Wilson’s apartment, along with checks and “several large money market certificates.” (PL’s Ex. 87 at 5, ECF No. 108-6.) Two rings and a wristwatch remained on her body. (PL’s Ex. 45 at 4.)

The BPD submitted a request to the NSP Criminalistics Laboratory for an examination of blood, semen, and hairs recovered from Wilson’s apartment. (PL’s Ex. 90 at 1, ECF No. 108-9.) Dr. Regina Roy, a serologist at the Criminalistics Laboratory, prepared a report stating that blood of types O and B were found among the samples, that the attacker’s blood type was B, and that the attacker was “a nonseeretor of ‘B’ blood group substances in his semen.” (Id. at 2-4.)

Investigators interviewed members of Wilson’s family and learned that Wilson’s son, Darrell, visited with Wilson until 9:45 p.m. on the night of February 5. (PL’s Ex. 99 at 16-17, ECF No. 109-9.) Darrell or his wife telephoned Wilson’s apartment three times on or around midnight that evening, but Wilson did not answer their calls. (Mat 17-18.)

FBI Agent Peter Klismet prepared an offender profile for the BPD. (PL’s Ex. 87.) Klismet opined that it was “highly unlikely” that two offenders were involved in the crime, adding, “[w]e can state with almost total certainty that this crime was committed by one individual acting alone.” (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.)

The record indicates that the BPD investigation focused on identifying a male with type B blood who was a non-secretor. (E.g., PL’s Ex. 91 at 35.) In March 1985, the BPD investigators focused their attention on Bruce Allen Smith and attempted to obtain biological samples from him. (E.g., PL’s Ex. 97, ECF No. 109-7; PL’s Ex. 99 at 27-29.) Bruce Smith eventually submitted blood, hair, and fingerprints to the investigators in Oklahoma. (PL’s Ex. 97; Pi’s Ex. 99 at 29-30.) A lab technician working for the Oklahoma City police department advised the investigators that Smith appeared to be a secretor. (PL’s Ex. 97 at 2.) As a result, the investigators ruled out Bruce Smith as a suspect in the Wilson homicide. (Id.; see also PL’s Ex. 99 at 30.) Nevertheless, Fitzgerald transported the evidence obtained from Smith back to Beatrice. (PL’s Ex. 97 at 2.)

The BPD officers’ investigation also brought them into contact with Joseph White, Ada Joann Taylor (generally referred to as “Joann Taylor”), Mark Good-son, Clifford Shelden, and Thomas Win-slow. (E.g., PL’s Ex. 1 at 2-4, EOF No. 106-1.) On or about March 2, 1985, Good-son and Clifford Shelden reported to a BPD officer that they had information about the homicide. (Id. at 2.) Goodson then gave a taped statement in which he claimed to have spoken with Taylor, and Taylor allegedly informed him that she and her brother (whom Goodson erroneously believed to be White) left Beatrice because they were involved in the homicide. (Id. at 2-3.) In fact, Stevens had already interviewed White sometime during the second week of February, 1985. (Id. at 3.) Rumors of his alleged involvement in the homicide had reached White, and White visited Stevens on his own accord to dispel those rumors before he followed through on plans to leave town. (Id.; see also Pl.’s Ex. 91 at 35.) Stevens obtained information from White indicating that White’s blood type was 0, advised White that he could leave town, and informed White that officers may contact him in the future, if necessary. (PL’s Ex. 1 at 3.) Stevens felt that White’s blood type “almost eliminated him” as a suspect in the investigation. (PL’s Ex. 91 at 35.) White did leave Beatrice sometime after meeting with Stevens, and it appears that Taylor left at approximately the same time — though it is unclear whether they left town together.

Stevens learned that Clifford Shelden was hospitalized on the night of the homicide. (PL’s Ex. 1 at 2.) He also learned on or about June 4, 1985, that Goodson’s blood type was 0 + . (Id. at 3-4.) On December 5, 1985, Stevens spoke with Thomas Winslow and arranged for Win-slow to take a blood test on December 9, 1985. (Id. at 4.) This test revealed that Winslow’s blood type was A+. (Id.)

Also in December 1985, Stevens came to believe that White was living with Taylor in North Carolina, and he attempted to have law enforcement officers there obtain “major case prints” or a blood sample from White. (PL’s Ex. 1 at 4.) Although he was unable to locate White, he did eventually make telephone contact with Joann Taylor (who was in Texas) on December 11, 1985. (Id.) Taylor informed Stevens that she had not seen White since she left Beatrice. (Id.)

During his deposition, Stevens said that he was aware of rumors that White and Taylor were involved in the homicide, but he never believed them. (PL’s Ex. 91 at 4(Ml, 150-151.) He explained that they were the type of people that “wanted to make a name for themselves.” (Id. at 40, 150-151.) He added that Joann Taylor was on drugs, carried weapons, fought, and was a “very unreliable person” because “she would change her stories during the conversation.” (Id. at 41, 144.) Fitzgerald described Taylor as an aggressive “bully” who used drugs and would only be truthful with law enforcement “if it was a benefit to her or maybe one of her Mends.” (PL’s Ex. 99 at 70-71.) Luckeroth believed that it was common knowledge within the law enforcement community that Joann Taylor was a liar, and he described her as an attention-seeker who occasionally provided unreliable information to the police. (PL’s Ex. 89 at 60-61.)

Luckeroth reviewed the BPD’s reports and discussed the case with Stevens and Fitzgerald, and he felt that there was never enough information to justify an arrest of any of the suspects. (PL’s Ex. 89 at 20-21.) He said that Richard Smith also read the reports and agreed that they did not have “anything to arrest anybody for.” (Id. at 21.)

At the time of the Wilson homicide, Searcey was no longer with the BPD, but was engaged in farming. (Seareey Aff. ¶¶ 2, 5.) Seareey states that, due to his “experience in law enforcement” and his familiarity with the Wilson family, he “asked Wilson’s daughter ... if she would like [him] to look into the Wilson homicide.” (Id.) Seareey does not indicate in his affidavit whether Wilson’s daughter responded affirmatively to his offer; however, he does state that he obtained “background” from her. (Id.) He then “attempted to obtain information [about the homicide] from the BPD,” but he claims he was unsuccessful because he was “a private citizen” at the time. (Searcey Aff. ¶ 5.) Thereafter, Seareey conducted his own “independent investigation” of the crime. (Id. ¶ 6.) Stevens, who knew Seareey from their time together in the BPD, believed that Seareey was determined “to solve this case one way or another.” (Pl.’s Ex. 91 at 48-49, 64-65.) Luckeroth believed that Seareey “wanted to make a name for himself’ and possibly wanted to “show up” Stevens. (Pl.’s Ex. 89 at 32-33.) In any event, Seareey did not share with the BPD any of the information he obtained during his private investigation. (E.g., Pl.’s Ex. 89 at 32-33; PL’s Ex. 91 at 52-53; PL’s Ex. 99 at 44-46.)

During his independent investigation, Seareey 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.” (Seareey Aff. ¶ 8.) Seareey learned from these individuals that “White had been arrested by the BPD around the area where assaults had been occurring on elderly women.” (Id.) Searcey’s “former confidential informants” also “assisted in identifying several persons who frequented the area where the Wilson homicide occurred.” (Id.) In addition to White, Searcey’s investigation led him to consider Thomas Winslow, Joann Taylor, Cliff Shelden, Mark Goodson, Beth Johnson, Debbie Brown, and Charlotte Mindenhall (also known as Charlotte Bishop and Charlotte Crumb) to be “persons of interest.” (Id. ¶¶ 8,13, 27.)

As he investigated these persons of interest, Seareey verified that on the night of the homicide, Cliff Shelden was at the hospital and Beth Johnson was with her parents. (Seareey Aff. ¶ 9.) Mark Goodson told Seareey that he was out of town on the night of the homicide, and it appears that Seareey credited Goodson’s statement. (Id.) Thomas Winslow claimed the he was working at a truck stop on the night of the homicide, but Winslow’s employer later informed Seareey that Win-slow had not shown up for his shift, on the night in question. (Id.) Searcey’s sources informed him that Joseph White and Joann Taylor left Beatrice shortly after the homicide. (Id.) Searcey began to form an opinion that “multiple persons committed the crime,” and that these persons “included White, Taylor, and Winslow.” (Id. ¶ 6.)

Searcey re-contacted one of his confidential informants, and the informant told him that one of her friends, Lisa Podendorf, was behaving in a way that caused the informant to believe that Podendorf “might have information pertaining to the Wilson homicide.” (Searcey Aff. ¶ 10.) Searcey contacted Podendorf, and initially Podendorf “indicated she had no knowledge of the homicide.” (Id.) Upon further questioning from Searcey, Podendorf revealed that Joann Taylor had disclosed certain information about the homicide to her, but had threatened to kill Podendorf if Podendorf divulged this information. (Id.)

On April 7, 1985, Searcey took a statement from Podendorf. (Searcey Aff. ¶ 11.) Evidently, however, Searcey did not make a record of this statement at the time of its taking. 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.

(Searcey Aff. Ex. 2B at 4, ECF No. 71-2.)

As noted above, Wilson’s body was not discovered until approximately 9:30 a.m. on February 6, 1985. Thus, Podendorfs conversation with Taylor could not have been triggered by the presence of police cars at 7:30 or 8:00 a.m., as Podendorf indicated in her statement. In addition, it merits mention that according to Stevens, Podendorf may have been motivated to retaliate against Taylor because Podendorf was injured during a prior confrontation between the women. (PL’s Ex. 91 at 108.) Fitzgerald described Podendorf as someone with “limited intelligence.” (Pl.’s Ex. 99 at 85.) Nevertheless, it is also quite true that other individuals — e.g., Mark Goodson — had come forward to say that Taylor was claiming involvement in the Wilson homicide. As Stevens noted in his deposition, “[i]t was no secret to me that [Taylor] was ... talking to people.” (Id.)

Although the BPD had dismissed Taylor’s claims of involvement in the homicide, Searcey continued to focus his attention upon Taylor. Searcey took a second statement from Lisa Podendorf on April 15, 1985, after Searcey learned from the BPD that one half of a torn $5 bill was found at the scene of the Wilson homicide. (Seareey Aff. Ex. 2B at 4, ECF No. 71-2; See also Searcey Aff. ¶ 12.) Again, however, Searcey did not make any record concerning this statement until several years after he claims to have taken it. According to Searcey’s report of February 28, 1989, Searcey asked Podendorf “if she had ever known Tom Winslow, Cliff Shelden or Joseph White to ever have any torn money or halves of dollar[ ] bills in their possession.” (Searcey Aff. Ex. 2B at 4, ECF No. 71-2.) Lisa Podendorf responded that she had seen Joseph White perform a joke “probably twenty or thirty times while she was attending parties” or at a bar, and this joke involved the tearing of a one- or five-dollar bill in half. (Id. at 4-5.) In his affidavit, Searcey states that Lisa Podendorf “had knowledge of the torn $5 bill in the apartment, which she gained from Taylor.” (Searcey Aff. ¶ 12.) His report of February 28, 1989, does not corroborate this statement, however. (See generally Searcey Aff. Ex. 2B, ECF No. 71-2.)

At the time of the Wilson homicide, DeWitt was serving as a Nebraska State Trooper. (DeWitt Aff. ¶ 2.) After he became Sheriff of Gage County in 1987, DeWitt hired Searcey as a deputy sheriff. (Id. ¶ 4.) Approximately three months after he was hired as a deputy sheriff, “Searcey began expressing interest in the Wilson homicide investigation.” (Id.) Searcey states that when he became a deputy, he was “able to review BPD reports and obtain information about the Wilson homicide,” including such “pertinent information” as “the torn $5 bill, the turned over footstool,” the fact that “the phone [was] jerked out of the wall,” and “blood reports from Dr. Reena Roy ... indicating] that the blood samples were mixed and could have come from more than one perpetrator.” (Searcey Aff. ¶ 7.) He adds that this information “verified” the information he uncovered during his independent investigation and “confirmed [his] theory ... that more than one person was involved.” (Id.) During the next five or six months, Searcey and DeWitt met several times to discuss the information Searcey uncovered during his independent investigation and, as Searcey had “not prepared official reports on that investigation,” DeWitt instructed Searcey to write a report about it. (Id.; see also DeWitt Aff. ¶4.) Searcey wrote a report as instructed, and I have made references to that report, which is dated February 28, 1989, above. After Searcey prepared his report and presented it to DeWitt, DeWitt conferred with Smith about it, and Smith and DeWitt decided that Searcey should continue to investigate the case through the sheriffs office. (DeWitt Aff. ¶ 4.)

The record indicates that the BPD provided reports to the sheriffs office to assist Searcey in his investigation; however, the sheriffs office did not reciprocate. (PI.’s Ex. 89 at 33-36; PL’s Ex. 91 at 53; PL’s Ex. 99 at 49-50, 53.) Fitzgerald described the sheriffs department as “secretive about what they were doing on many things,” and said that “their philosophy at that time might have been [’]we want to solve the crime to show you didn’t do it right[.’]” (Pl.’s Ex. 99.) As will be seen below, the sheriffs office did include the BPD in the investigation after arrest warrants were issued for Taylor and White.

Acting now as a member of the GCSO, Searcey took a third statement from Lisa Podendorf on January 12, 1989. (Searcey Aff. ¶ 13.) This statement was recorded, and a transcript of Podendorf s statement is included in the record. (Searcey Aff. ¶ 13; Searcey Aff. Ex. 2C, ECF No. 71-2.) As in her previous statement, Podendorf said that Joann Taylor spoke to her at the Beatrice High School at 7:30 on the morning after Wilson was killed. (Searcey Aff. Ex. 2C at 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. at 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. at 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 Bishop, Deb Shelden, Cliff Shelden, “Todd [sic] Winslow,” and Beth Johnson, among others. (Searcey Aff. ¶ 13; Searcey Aff. Ex. 2C at 6.) Podendorf said that she often saw White tear a piece of currency in half while telling a joke at parties. (Searcey Aff. Ex. 2C at 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. at 10.)

Podendorfs third statement also includes additional details that she evidently failed to report to Searcey nearly four years before. Podendorf told Searcey that on the night of the homicide, she was “riding around” with her husband, and the couple found themselves behind Tom Win-slow, Beth Johnson, Joann Taylor, and Joseph White, who were riding in a green 1972 Oldsmobile with a brown top. (Searcey Aff. Ex. 2C at 10, 18.) Podendorf said that she and her husband followed them, and she saw them park and exit their vehicle near Wilson’s apartment building at precisely 10:18 p.m. (Id. at 10.) In his affidavit, Searcey says that Podendorf claimed to have seen Winslow, Johnson, Taylor, and White “go into the apartment building.” (Searcey Aff. ¶ 13.) In her statement, however, Podendorf says that she did not “see anything else” after she watched the group exit their vehicle. (Searcey Aff. Ex. 2C at 11.)

On February 13, 1989, Searcey re-interviewed Tom Winslow, and Winslow admitted that he lied about being at work on the night of the homicide. (Searcey Aff. ¶ 14.) 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 that 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 that he would become “involved” in the case. (Searcey Aff. Ex. 2B at 5-6.)

According to Searcey’s February 28, 1989, report, Winslow “believed that JoAnn Taylor was possibly living in” a certain apartment on Ella Street at the time of the homicide, and Searcey knew that this apartment had been rented by Charlotte Bishop. (Searcey Aff. Ex. 2B at 6.) On February 25, 1989, Searcey interviewed Charlotte Bishop in the presence of her attorney. (Id.) Fitzgerald described Bishop as someone like Podendorf (i.e., of “limited intelligence”). (PL’s Ex. 99 at 85.) Stevens said that Bishop’s credibility was “three times as bad” as Taylor’s, that Bishop was widely known to be a liar, and that she was “very, very unsanitary,” “almost ... a mental case,” and “maybe retard[ed].” (PL’s Ex. 91 at 59-60, 153.)

During the interview, Bishop told Searcey that Joann Taylor was living with her in her apartment on Ella Street above Dole Floral at the time of the Wilson homicide, and Bishop “became aware” that Taylor was involved in the homicide when Bishop came into the apartment at noon on the day after the crime. (Searcey Aff. Ex. 2B at 6.) Bishop said that Taylor was nervous and upset, and Taylor said that “she may have been involved in a murder.” (Id.) Bishop also said that Taylor left the apartment “one to one and a half days later,” and Bishop had not seen her since then. (Id.) Bishop added that she did not come forward with this information previously because no one questioned her and because Taylor threatened her life. (Id. at 6-7.) She then described an incident that occurred prior to the Wilson homicide, during which Taylor filled Bishop’s bathtub with scalding water and, with the help of two male friends, forced Bishop into the tub. (Id. at 7.)

Stevens recalled, however, that Taylor and Bishop were “kicked out” of their Ella Street apartment by the landlord on February 5, 1985, which is the day preceding the Wilson homicide. (See, e.g., Pl.’s Ex. 91 at 41-42, 128, 153.) Thus, the pair could not have had a conversation in that apartment on February 6, 1989, as Charlotte Bishop described in her statement.

Also during her statement, Bishop stated that she went out for cigarettes on the night that Wilson was murdered, and from outside her apartment she saw police cars “all around the apartment building” where Wilson lived. (Searcey Aff. Ex. 2D at 7-8, ECF No. 71-2.) Searcey asked, “All right, I want to make sure your [sic] not confused. ... Was it the night before or could it have been sometime after when she told you?” (Id. at 8.) Bishop responded, ‘Well it was, it could have been the night after that too or the day after too there was a whole bunch of police cars.” (Id.) Searcey asked, “Are you sure? Are you sure?” and Bishop replied, Well I had you know I had went out that day and there was or that next day and there was still police cars around.” (Id.)

In early March 1989, someone at the GCSO contacted Smith to discuss “whether or not use immunity would be offered to induce [Thomas] Winslow to give a statement.” (Smith Aff. ¶ 11.) At the time, Thomas Winslow was being held in Lancaster County on felony charges in an unrelated matter. (Id.) Smith discussed the proposed terms of an immunity agreement with deputies in the Lancaster County Attorney’s Office, members of the GCSO, and Winslow’s attorney. (Id. ¶ 12.) On March 13, 1989, Smith and DeWitt traveled to Lincoln, Nebraska, to discuss the case with Winslow’s attorney, and Smith advised Winslow’s attorney that he “would agree to use immunity for Winslow for his truthful statement concerning the Wilson homicide.” (Id.) Winslow’s attorney indicated that Winslow would: 1) state that Joann Taylor and Joseph White “discussed committing a felony at Wilson’s apartment”; 2) state that Winslow “wanted nothing to do with it and walked away”; 3) “corroborate Lisa Podendorfs statement that a vehicle ... matching the description of Thomas Winslow’s car and having occupants Joann Taylor and Joseph White was seen [on the night of the homicide] parking next to the location [where] Mrs. Wilson was found dead”; 4) state that “Taylor and White admitted to Win-slow that they killed Wilson”; and 5) “bracket the time of the homicide.” (Id. ¶ 13.)

On March 14, 1989, Smith, DeWitt, Searcey, and Harlan interviewed Thomas Winslow in Lincoln, Nebraska, in the presence of Winslow’s attorney. (Smith Aff. ¶ 14.) During the interview, Winslow stated that on the evening of February 5, 1985, he was riding around in his 1973 Oldsmobile with Beth Johnson, Joann Taylor, and Joseph White, and White “mentioned something about robbing an old lady.” (Searcey Aff. Ex. 2E at 4, ECF No. 71-2.) Winslow stated that the group proceeded to the apartment building where Wilson resided, and all four of them exited the vehicle and entered Wilson’s apartment. (Id.) An argument ensued between White and Wilson, and when Win-slow saw White and Taylor attacking Wilson, “he panicked and left with ... Beth Johnson.” (Id.)

That same day — March 14, 1989 — Searcey prepared an affidavit in support of arrest warrants for Joann Taylor and Joseph White. (Smith Aff. ¶ 15; PL’s Ex. 112, ECF No. 110-8.) In his affidavit, Searcey noted that Wilson’s body was discovered “at approximately 9:00 a.m. on February 6, 1985,” and he said that his confidential informant (i.e., Podendorf) spoke with Taylor “within 24 hours of the Wilson homicide.” (PL’s Ex. 112 at 2-3.) He did not indicate, however, that Podendorf claimed to have seen police cars at Wilson’s apartment before 8:00 a.m. on that day. Searcey also noted in his affidavit the conversation that allegedly occurred between his second confidential informant (i.e., Bishop) and Taylor in Bishop’s apartment “located in close proximity to Helen Wilson’s apartment.” (Id. at 4.) In addition, Searcey’s affidavit includes a summary of the information he obtained from Winslow during his February 13, 1989, interview, and adds that “within approximately one week of the Helen Wilson homicide, Ada JoAnn Taylor and Joseph White ... left Beatrice ... and have not been seen or heard of since.” (Id. at 5-6.) The warrants issued, but before their execution Searcey prepared an addendum to his affidavit “to correct some of the statements in the original affidavit” in light of Winslow’s March 14 statement. (Smith Aff. ¶¶ 15-lb.) The Gage County Court reviewed the addendum and “allowed the original warrants to stand.” (Id. ¶ 17.) Complaints were filed against Taylor and White in the Gage County Court. (Id. ¶ 18.)

On March 15,1989, the Buncombe County, North Carolina, Sheriffs Department (BCSD) arrested Joann Taylor. (Searcey Aff. ¶ 18.) Following Taylor’s arrest, BCSD officers “Mirandized” her and took her statement. (Id.; see also Searcey Aff. Ex. 2G, ECF No. 71-2.) In her statement to the BCSD officers, Taylor said that White asked her to “help him do something” and threatened to kill Taylor’s daughter if Taylor refused. (Searcey Aff. Ex. 2G at 1.) Taylor said that she could “visualize the outline of the house as it was on that day in February” when the homicide occurred, (id.), and she offered the following account of the crime.

According to [Taylor’s] statement, [White] was going over to do some yard work or trim this lady’s trees. That was the explanation he gave her. Also with him was another guy but she didn’t know his name. When they arrived at the house, according to [Taylor’s] statement, they knocked on the door and when the lady came to the door [White] asked for a glass of tea which she offered to him. [Taylor] asked the lady if she could use the bathroom. The lady let her use the bathroom and at this time both [White] and the other guy walked in also. The lady asked both of them to leave. The best that [Taylor] can remember, [White] said why should I, in that he wasn’t going to leave. Sometime at this point, [White] took the lady by the arm. According to [Taylor], the lady asked [White] to let her go but [White] shoved her down. [Taylor] said she struck a table that was in the living-room.

(Id.) Taylor went on to state that White began having sex with Wilson while the other “kid” held her, that White began stabbing Wilson, that “the other guy that was with [White] raped her again” after she had been killed, and that Taylor “could see the blood and the wounds on the body.” (Id. at 1-2.) Taylor said that she and the other individual walked outside, and about ten minutes later White came out and retrieved a bag of clothes from their car — which Taylor described as a “small” car that was “baby blue in color.” (Id. at 2.) Taylor said that White then went back into Wilson’s house, changed clothes, and then came back out. (Id.) She added that she thought White went to Wilson’s house to rob her, and she noted that White did not have any money until after the attack on Wilson. (Id.) She also said that she thought that the attack occurred at dusk “or maybe 5:30 or 6:00 in the afternoon.” (Id.) Taylor concluded her statement by saying that “[s]he can still shut her eyes and see the blood, the stab wounds, and each of them taking turns raping this lady.” (Id. at 3.)

Although Taylor implicated herself in the homicide, much of her account of the crime was either highly implausible (e.g., it is unlikely that the group went to Wilson’s house to trim trees in February or that White intended to rob Wilson but left behind hundreds of dollars in cash) or irreconcilable with the known facts (e.g., Wilson did not live in a house, Wilson was not stabbed, and the crime could not have been committed at 6 p.m.). After reviewing this statement during his deposition, Stevens labeled it “trash” and said it did not “make a bit of sense” to him. (PL’s Ex. 91 at 92-93.)

To this point the BPD generally, and Stevens in particular, had not been privy to the sheriffs department’s investigation. Nevertheless, as Searcey, DeWitt, Price, and other officers flew to Alabama to arrest Joseph White on or about March 15, 1989, they stopped their plane in St. Louis to pick up Stevens to accompany them. (PL’s Ex. 89 at 35; PL’s Ex. 91 at 75-76; see also Searcey Aff. ¶ 19; Searcey Aff. Ex. 2H, EOF No. 71-2.) During the plane ride, the sheriff told Stevens “numerous times that he wanted [Stevens] to know that the sheriffs office solved the case.” (PL’s Ex. 91 at 77-78.)

After their arrival in Alabama, Searcey questioned White on March 16, 1989, in the presence of Price and Stevens. (Searcey Aff. ¶ 19; Searcey Aff. Ex. 2H, ECF No. 71-2.) A partial transcript of this interview appears in the record. (See Searcey Aff. Ex. 2H.) At the outset of the interview, White received Miranda warnings and agreed to answer questions without the services of an attorney. (Id. at 1-2.) White denied any involvement in the Wilson homicide, and he claimed that much of the information that Searcey collected from his sources was false. (See generally Searcey Aff. Ex. 2H.) Searcey’s questioning intensified, and White asked to see a lawyer on three separate occasions. His first request for counsel was preceded by the following exchange:

Searcey: Do you know where [Joann Taylor] is right now?

White: No.

Searcey: She’s in custody too, for Murder I. We’ve been talking to her. I got a feeling that somebody ain’t telling something right. I don’t know which one it is, but somebody is in a world of hurt.

White: Yeah.

Searcey: Don’t you think?

White: Yeah.

Searcey: So which one is it?

White: She’s lying to you.

Searcey: I got other witnesses that can verify what she said is true. More than one. You were in that apartment that night.

White: No.

Searcey: Only one thing, you lost something when you were in there, Joe.

White: What?

Searcey: Mr. Stevens, (unintelligible)

Stevens: The other part of a five dollar bill.

Searcey: You lost it, Joe. It’s got fingerprints on it.

White: What five dollar bill?

Stevens: It was lying on the floor.

Searcey: You forgot to take everything out with you. You made a mistake. It looked good for a while, but you made a mistake.

White: I don’t know what you’re talking about.

Searcey: That’s not what Joann is telling us.

White: I want to see a lawyer.

(Searcey Aff. Ex. 2H at 17.) Questioning continued, and White continued to deny having any involvement in the Wilson homicide. The following exchange then occurred:

White: [Tom Winslow] didn’t have a car at the time I was there that I knew of.

Searcey: Now that’s a lie Joe. You road [sic] around with him the same night that his happened in his car, okay. You were seen by many people. You were seen pulling in the alley of a parking lot by the apartment complex at 10:30 in the evening. So I know that’s not true, now how much other stuff have you told me that ain’t true.

White: Somebody has been lying to you because I have never ridden in a car with Tom Winslow.

Searcey: You were all four seen in the car. And you were all four seen getting out, and all four seen going into the apartment building. And not only can we show you doing that, but we got the people involved in the damn thing telling us the same thing. Admitting it.

White: Well I tell you what, until I see a lawyer, I’m saying nothing else because apparently you are trying to prove me a liar when I’m not.

(Id. at 24.) Questioning continued, and White and Searcey had the following exchange:

Searcey: Would you take a polygraph test for us Joe? To verify what you are telling us is the truth?

White: Sure.

Searcey: What if you fail? What if?

White: What if? I’d say somethings [sic] wrong with your machine.

Searcey: So everything you tell us is true and what everybody else does and the machines are all going to be wrong, is that what you are saying? Huh?

White: No what I’m saying is I am telling you the truth.

Searcey: No no I think you are trying to fashion and you want to tell me what you want me to hear. You’re not telling me the truth at all.

White: I am telling the truth.

Searcey: No you haven’t, no no. Joe, there’s to [sic] many [¶]... ]

White: I want a lawyer.

(Id. at 26.) Stevens then asked White whether he would “volunteer to go back to Nebraska ... to get [this] cleared up,” and White agreed. (Id.) White also agreed to answer questions from Price, who asked White whether he understood the questions posed to him during the interview, the charge against him, and the “difference between right and wrong.” (Id. at 27.) At the conclusion of the interview, “White waived extradition and returned to Nebraska with Price and another officer.” (Searcey Aff. ¶ 19.) Upon his arrival in Nebraska, Meints booked White in to the Gage County Jail. (Meints Aff. ¶ 6.)

After participating in the interview with Whi