A Case in Point - How Framed Defendants Fight Back - Jovanovic v. City of New York

Although it means jumping ahead an Act or two in this drama, speculation has already begun concerning what the Duke defendants might do at the conclusion of the case against them. With a tip of the hat to lskinner, a knowledgeable CourtTV poster, we offer Jovanovic v. City of New York.

This opinion, filed last month from the United States District Court of the Southern District of New York, denied motions to dismiss in a case brought under 42 USC 1983, alleging violations of a rape defendant's constitutional rights, specifically false arrest, malicious prosecution, malicious abuse of process, and denial of defendant’s right to a fair trial. The facts in the initial rape investigation will seem familiar to many of our readers and are too upsetting to dwell on here, for Mr. Jovanovic was accused and convicted of horrible crimes on the apparent sole basis of the testimony of an unreliable witness and a misapplication of rape shield laws.

Mr. Jovanovic's conviction was overturned on appeal, based on a misuse of the rape shield laws, which prevented the defendant from presenting exculpatory evidence. He is now the plaintiff in a lawsuit in federal court. He alleges that a police officer and an assistant district attorney, while acting in their official capacities, fabricated evidence, gave false testimony, and made damaging extrajudicial statements to the press in an effort to secure a conviction against him. The City of New York is also being sued, based on the claim that municipal policy or custom gave rise to these constitutionally impermissible acts.

The federal defendants' motions to dismiss alleged that the claims were time-barred, that probable cause existed for arrest and prosecution, that the claim for malicious prosecution failed as a matter of law, that there was no proper claim concerning malicious abuse of process against police, that the fair trial claims failed as a matter of law, that both the police officer and the assistant district attorney were entitled to qualified immunity, and that the claims against the municipality failed as a matter of law. The judge denied all but one of the motions to dismiss. The claim for malicious abuse of process against the police officer was dismissed as defective in stating a claim, but the plaintiff was given leave to replead.

There is much in this opinion that will be of interest, but we will focus on the claim that the police officer had probable cause to arrest Mr. Jovanovic, and, thus, was not guilty of false arrest. The judge disagreed. Stating that the only basis for the arrest was the claim of the accuser, he noted,

“The fact that a victim provides the police with information of an alleged crime does not, without more, establish probable cause. Rather, the officer has a duty to investigate the reliability of the victim, and, if circumstances call into doubt the victim’s veracity, to investigate the allegations and corroborate them.”

The judge found several reasons to doubt the accuser’s veracity:

• She had given contradictory accounts to the police, “changing critical facts every time she recounted the event.”
• She waited four days before seeking medical assistance or reporting to the police.
• The medical and forensic evidence did not corroborate her complaint.
• There was no DNA from Mr. Jovanovic “on the victim, her clothing, or any of the undergarments she wore on the night of the alleged assault.”
• The accuser had a history of making false sexual accusations against men - a fact that the police could have discovered with a reasonable investigation.

These factors, the judge ruled, if true, were enough to establish doubt as to the accuser’s veracity, triggering a duty to investigate further prior to an arrest. A nine day delay in arresting Mr. Jovanovic further undermined the claim that there was probable cause for the arrest, suggesting to the judge that the police doubted the accuser’s story at the time that it was made, thus triggering the duty to corroborate that story prior to the arrest.

This case has not reached final judgment, and an opinion in a federal district court in New York does not establish binding precedent for a potential case brought in a federal district court in North Carolina. Most of the issues, though, involve settled interpretations of federal law which would apply in both jurisdictions, and so we can say to the DA and police in Durham - “Read it and weep."

Additional Sources: NY Post , NY Daily News