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).1 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 sheriff's deputies (Burdette Searcey, Wayne Price, and Gerald Lamkin)2 violated their due process rights by using false evidence and otherwise coercing them to plea bargain despite their innocence.3 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:

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.4

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.5 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 plaintiff's 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)).6 "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;7 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 Plaintiff's 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. Patterson8 (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).9 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:

    Exhibit10     ECF11    Description12
    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.13

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 conviction[.]" (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:

(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:

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 (i.e., 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.14

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)).15

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]).)16 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 Sheriff's 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 Sheriff's 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.17 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].)18 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 O. (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 O 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.19 (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].)20 After considering the possibility there were two offenders,21 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.)22

At the time of the Wilson homicide, Searcey was farming.23 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.24 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. 2O [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.25 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.26 (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:

(Ex. 2B [ECF 59-2 at 8], p. 6; Taylor's Ex. 111 [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.29 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 Sheriff's 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. De-Witt conferred with Smith, and together, they decided that Searcey'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.30 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 Podendorf's 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. 3-431;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 I'm 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;32 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.33 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 I've 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 Sheriff's Office to determine whether or not use immunity would be offered to induce Winslow 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. Heavican and consulted with deputies in that office as well as the Gage County Sheriff's 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 ¶ 36 (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 Winslow. The Gage County Attorney's Office prepared complaints and filed the sworn affidavits and complaints with the Gage County Court.34 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]).)35

On March 14, 1989, Smith, DeWitt, Searcey, and Harlan traveled to Lincoln for the use immunity statement of Winslow. 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 Winslow]; Dean's Ex. 14 [ECF 107-4, Gage County Sheriff's 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:

(Id. at 9-10.) After a 44-minute break during which Winslow met with his attorney, he changed his story again. The exchange was as follows:

(Id. at 11-14.)

Later on March 14, 1989, following the use immunity statement with Winslow wherein he changed his story, Searcey drafted a sworn addendum to the affidavit for arrest warrants for Taylor and White to correct some of the statements in the original affidavit showing the changes in Winslow's statement, as given by Winslow through his use immunity statement. The addendum was presented to the Gage County Court before execution of the arrest warrants by law enforcement officers. After reviewing the addendum, the Court allowed the original warrants to stand. Smith filed Complaints against Taylor and White in the Gage County Court. (DSF ¶ 39 (Ex. 1 [ECF 51-1], ¶¶ 16-18; Ex. 1D [ECF 51-3, 51-4, 51-5, Case file of State v. Taylor, originally at Gage County Court Case No. CR 89-174]; Ex. 1E [ECF 53-1, 53-2, 54-1, 54-2, 54-3, 55-1, 55-2, Case file of State v. White, originally at Gage County Court Case No. CR 89-175]; Ex. 2 [ECF 59-1], ¶ 17; Ex. 2F [ECF 59-2 at 41-49]).) See also Taylor's Ex. 113 [ECF 118-9, Arrest affidavit addendum, White & Taylor, 3/14/89].)

On March 15, 1989, Taylor was arrested in North Carolina by the Buncombe County Sheriff's Department ("BCSD") on a fugitive warrant, and she made a statement to the officers. The GCSO had contacted the BCSD and requested that Taylor be arrested at or near the time of White's arrest to preclude the two of them from communicating with each other. Upon her arrest, Taylor was Mirandized and the BCSD officers took a statement. Present during her statement were Captain Mike Stevenson, BCSD; Lt. Charlie Calloway, BCSD; and Sgt. Howard Higgins, BCSD. In the statement, Taylor denied involvement with the homicide but did admit that she was present and that White and an unknown male raped and killed Wilson. (DSF ¶ 40 (Ex. 2 [ECF 59-1], ¶ 18; Ex. 2E [ECF 59-2 at 32-40]; Ex. 2G [ECF 59-2 at 50-53, Taylor's statement and Miranda warning statement dated March 15, 1989]).)

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. (Ex. 2G, p. 1 [ECF 59-2 at 50]; Taylor's Ex. 28 [ECF 114-23, North Carolina police report, 3/15/89, interview of Joann Taylor] 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.

(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., pp. 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., p. 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., p. 3.)

On March 15, 1989, Searcey, DeWitt, Deputy Price, and other officers flew to Alabama to arrest White. On that same date, White was arrested pursuant to the court-issued warrant served by DeWitt. (DSF ¶ 41 (Ex. 2 [ECF 59-1], ¶ 19; Ex. 2E [ECF 59-2 at 32-40]; Ex. 2H [ECF 59-2 at 54-84, Transcript of White's March 16, 1989, interview dated March 18, 1989]; Ex. 3 [ECF 62-1], ¶ 6; Ex. 3B [ECF 62-2 at 10, Consultation note concerning White]; Ex. 4 [ECF 62-3], ¶ 8; Ex. 4C [ECF 62-4 at 5, DeWitt report dated March 19, 1989]).) See also Dean's Ex. 15 [ECF 107-5, Gage County Sheriff's Office Supplementary Report dated March 20, 1989].)

On March 16, 1989, Searcey questioned White in the presence of Price and BPD Sgt. Stevens. White denied any knowledge of the Wilson homicide. Following the interview, White waived extradition and returned to Nebraska with Price and another officer. (DSF ¶ 43 (Ex. 2 [ECF 59-1], ¶ 19; Ex. 2E [ECF 59-2 at 32-40]; Ex. 2H [ECF 59-2 at 54-84]; Ex. 3 [ECF 62-1], ¶ 6; Ex. 3B [ECF 62-2 at 10]; Ex. 4 [ECF 62-3], ¶ 8, Ex. 4C [ECF 62-4 at 5]).) Deputy Meints picked them up at the airport on March 16 and booked White into the Gage County Jail. (DSF ¶ 45 (Ex. 7 [ECF 63-5], ¶ 6; Ex. 7B [ECF 63-6 at 3]).)

A partial transcript of Searcey's interview of White appears in the record. (Ex. 2H [ECF 59-2 at 54-84]; Taylor's Ex. 27 [ECF 114-22, GCS recorded statement, 3/16/89, Joseph White].) At the outset of the interview, White received Miranda warnings and agreed to answer questions without the services of an attorney. (Id., pp. 1-2.) During questioning, however, White asked to see a lawyer on three separate occasions. His first request for counsel was preceded by the following exchange:

(Id., p. 17.) Questioning continued, and White repeatedly denied any involvement in the Wilson homicide. The following exchange then occurred:

(Id., p. 24.) After additional questioning White and Searcey had the following exchange:

(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.)

On March 16, 1989, Price prepared a consultation note on White based upon his presence in the interview. Price did not believe that White had a mental disorder, but that White was experiencing anxiety. Further, Price indicated that White knew right from wrong and exhibited normal behavior. This was the only interview Price had or sat in on with respect to White.36 (DSF ¶ 44 (Ex. 3 [ECF 62-1], ¶ 6; Ex. 3B [ECF 62-2 at 10]).)

On March 16, 1989, Searcey and DeWitt flew from Alabama to North Carolina to arrest Taylor.37 Upon arrival, they learned that she had given a statement to the Buncombe County Sheriff's investigators. Searcey questioned her as well. She waived her rights under Miranda and gave a statement implicating White, Beth Johnson, and another male. She was unable to name the other male, but the physical description given matched that of Winslow.38 Taylor admitted to being present at Wilson's apartment with White and another male. She remembered that the other male worked at the truck stop. She claimed that White would not allow her to leave and threatened her and her daughter. Taylor stated that both White and the other male raped Wilson. She indicated that White cleaned up in the bathroom, took money from Wilson's purse, scattered some things around the apartment, and then ripped a bill in half. She remembered another girl being there and agreed it might have been Beth Johnson. Taylor did not remember talking to anybody about it, but agreed that she may have told Lisa Podendorf something. She recalled writing Cliff Shelden a letter. (DSF ¶ 46 (Ex. 2 [ECF 59-1], ¶ 20; Ex. 2E [ECF 59-2 at 32-40]; Ex. 2I [ECF 59-3]; Ex. 4 [ECF 62-3], ¶ 9; Ex. 4D [ECF 62-4 at 6, DeWitt report dated March 19, 1989]).)

A transcript of Taylor's March 16, 1989, statement is included in the record. (Ex. 2I, [ECF 59-3]; Taylor's Ex. 29 [ECF 114-24].) Taylor stated that she was present at the time of Helen Wilson's murder along with her boyfriend, Joseph White (whom she knew only as Lobo), and "another boy" whose name she did not remember.39 (Id., p. 3.) The questioning began as follows:

(Id., p. 2.) When asked to describe the location, Taylor said, "[t]he building that I can remember that I see is a light colored home. Like it was a one story house (unintelligible) in my memory." (Id., p. 3.) She also said that White was going to do yard work at Wilson's house. (Id., pp. 3-4.)

Sgt. Stevens interrupted at this point to ask Taylor if she "recall[ed] being in in [sic] Beatrice Nebraska through February 5 February 6 1986[sic]?" (Id., p. 4.) Taylor responded, "I don't remember it but the officers said that they could prove I was up there at the time. I don't remember it much of '85 at all." (Id.) Stevens then tried to "refresh" Taylor's memory by suggesting to her that "this is February," and White "wouldn't be doing yard work in February would he?" (Id., pp. 4-5.) Taylor agreed. (Id., p. 5.) Stevens and Searcey then continued questioning Taylor, and she described her recollection of the homicide. She stated that the group drove to Wilson's house in a "light blue small car" that belonged to the other man who was with them. (Id.) As White spoke with Wilson on the front porch, Taylor asked Wilson for permission to use the restroom. (Id., p. 6.) As Wilson showed Taylor to the restroom, White and his friend entered the house and blocked the door. (Id.) They refused Wilson's orders to leave, and when Taylor tried to leave the house, White threatened her daughter's life and held a knife to her throat. (Id., pp. 6-7.) According to Taylor, White and his friend then began to struggle with Wilson. (Id., p. 7.) She did not remember the struggle ever leaving "the front area of the house." (Id.) She said that White and his friend then raped Wilson. (Id., pp. 7-8.) Taylor was unable to remember what Wilson was wearing, and stated that "Officer Calloway tried to help me through that, him and another officer an [sic] couldn't figure it out." (Id., p. 8.)

Searcey then said, "Now is it possible since you['re] having a rough time bringing this to your mind that you could be confused as to maybe the location [of] the residence, is that possible?" (Id.) Taylor replied, "Yeah with my personality disorder it's hard[,] my psychologist even in Beatrice said I would have trouble." (Id.) Stevens then asked Taylor specific questions about the location of the bathroom in the house and the furnishings in the living room. (Id.) After Taylor responded to these questions, Stevens asked whether she remembered seeing a bedroom. (Id.) Taylor said that she did, and she described the location of the bedroom in relation to the bathroom. (Id., p. 9.) Stevens asked whether Taylor remembered "any kind of struggle or any kind of a fight going on in the bedroom," and Taylor responded negatively, repeating that the struggle occurred in the living room. (Id.)

Stevens asked Taylor whether she, White, or the other man were wounded during the struggle, and Taylor responded negatively. (Id., p. 10.) Searcey then asked Taylor whether she had spoken with anyone about the homicide before, and Taylor responded, "No I had totally blocked Lobo out of my mind." (Id.) Searcey asked Taylor whether she was sure that she had not spoken about the crime with anyone, and Taylor responded that she was sure. (Id.)

Searcey then told Taylor, "I have some problems here so I want to kind of throw some things at you and give you something to think about here and see if maybe it doesn't jog your mind a little bit...." (Id., p. 11.) Searcey informed Taylor that two different people had told him that she (Taylor) had spoken with them about the homicide, and he asked Taylor again whether she remembered "anything about that right now." (Id., p. 11.) Taylor replied that she did not remember talking to anyone. (Id.) Searcey then asked Taylor whether it was "possible that the residence may have been of a large type of complex," and Taylor replied that it was possible. (Id.)

Later during the interview, Searcey asked Taylor whether she knew Lisa Podendorf. (Id., p. 13.) After Taylor responded affirmatively, Searcey asked Taylor whether she talked to Podendorf about the homicide. (Id.) Taylor replied that she could not remember. (Id.) The following exchange then occurred:

(Id., pp. 13-14.) Stevens then interjected a line of questioning about whether Taylor believed, at one time, that White was her father. (Id., p. 14.) Taylor indicated that she did believe that White was her father at one time—even though she was eighteen years old and White was nineteen. (Id.) Searcey then returned to the subject of Lisa Podendorf, and the following exchange occurred:

(Id., pp. 15-16.)

The interview was stopped for a break. (Id., p. 17.) After the break, Searcey asked Taylor again whether she might have discussed the homicide with Podendorf. (Id., p. 20.) On this occasion, Taylor said, "It could have come up in conversation." (Id., p. 21.) When Searcey asked her what would have come up, Taylor replied, "Just that I knew that they might find a[n] old lady ... [t]hat was hurt ... [p]retty bad." (Id.) Searcey asked if Taylor "maybe [made] another comment to [Podendorf] about this old woman," and Taylor replied, "[t]hat she might be dead." (Id.) In response to further questioning from Searcey, Taylor said that Podendorf asked her how she knew about the incident, and Taylor then told Podendorf that she (Taylor) witnessed the incident and "knew the room" and the people involved. (Id.) Taylor also said that she "probably" spoke to Charlotte Bishop about the incident. (Id., pp. 22-23.)

Searcey asked Taylor to describe again the car that belonged to the man who was with her and White during the crime. On this occasion Taylor described the car as "a medium, regular size car" with a green body and a brown roof. (Id., pp. 22-23; see also id., p. 31.)

Stevens asked Taylor whether she wrote Cliff Shelden a letter from North Carolina that included "a little bit about what happened that night," and Taylor replied that she "could have," adding, "I remember writing him, but the contents of the letter I don't. I wrote him a lot of times." (Id., p. 24.) Stevens questioned Taylor further about Cliff Shelden and Charlotte Bishop, and Taylor explained that Cliff Shelden was her "man," and after Taylor caught Shelden with Charlotte, Taylor tried to hurt Charlotte with boiling water. (Id., pp. 25-26.)

Midway through the interview, Taylor was again asked to describe the location of the homicide:

(Id., pp. 28-29.) Taylor said that she and the others entered the building through a back door and went upstairs. (Id., p. 29.) She said that the group arrived at Wilson's apartment between 8:00 and 11:00, and left between midnight and 2:00. (Id., p. 33.)

Taylor said that White took some of Wilson's money out of her purse. (Id., p. 32.) Searcey asked her whether she ever saw White do any tricks with money. After Taylor indicated that she could not remember any, the following exchange occurred:

(Id., pp. 34-35.)

Taylor then agreed with Stevens that there was blood on the sheets and blood on the walls of the bedroom, and she said that the battle in the bedroom was "scary" and "gross." (Id., pp. 37-38.) Also, after saying repeatedly that she, White, and another male had been the only ones in Wilson's apartment, she agreed with Searcey that "[t]here could have been" another female in their group. (Id., p. 39.) Searcey asked, "Was there a Beth?" and Taylor agreed. (Id.)

Near the end of the interview, Searcey accused Taylor of "protecting somebody" and "playing a game" with the investigators. (Id., p. 43.) Taylor denied this, said she was trying to protect her daughter's life, and began crying. (Id.) Stevens questioned Taylor about the persons who were present during the homicide, and the following exchange occurred:

(Id., p. 45.) She added later that she intended to "fracture" her own wrists after the interview because there was nothing else to do, she had "nothing to live for," and she would "die in Beatrice" if she were taken back there. (Id., pp. 50-51.)

On March 17, 1989, Taylor waived extradition, and Searcey and DeWitt transported her back to Beatrice where she was booked into jail. On March 17, 1989, Meints and Lamkin went to the airport to pick up Taylor and DeWitt and then transported Taylor back to the Gage County Sheriff's Office. At the GCSO, Meints fingerprinted her and took her photo as part of the booking process. (DSF ¶ 47 (Ex. 2 [ECF 59-1], ¶ 20; Ex. 2E [ECF 59-2 at 32-40]; Ex. 2I [ECF 59-3]; Ex. 4 [ECF 62-3], ¶ 9;Ex. 4D [ECF 62-4 at 6]; Ex. 5 [ECF 63-1], ¶ 6; Ex. 7 [ECF 63-5], ¶ 7; Ex. 7C [ECF 63-6 at 4, Meints Report dated March 18, 1989]).)

On March 17, 1989, Searcey and Stevens took another statement of Taylor after she was Mirandized. Taylor viewed a photo lineup and identified Tom Winslow as the previously unidentified male in Wilson's apartment.40 She then admitted that she knew it was Winslow all along, but that she was scared of him, as he had threatened her and her daughter's lives.41 She stated that Winslow drove them to Wilson's apartment and that she went there with White, Winslow, and Beth Johnson. Per the arranged plan, Taylor asked to use the restroom and they forced their way into the apartment. Taylor stated that she was made to stay and watch the sexual assault by Winslow and White. She saw the struggle in the bedroom. She thought Wilson was dead at the time of the assault. She could not remember where the blood in the bedroom came from.42 She stated that Beth Johnson did not participate. She also stated that the phone rang a couple of times and that once Winslow picked up and slammed down the receiver and then unplugged the phone. Taylor indicated that one of the males had a knife. She thought Wilson had a pillow on her face when they left. She stated that she saw White tear a $5 bill in half and throw one half on the floor. She stated that they all left together and then went to breakfast. Taylor remembered telling Lisa Podendorf about the incident. (DSF ¶ 48 (Ex. 2 [ECF 59-1], ¶ 21; Ex. 2E [ECF 59-2 at 32-40]; Ex. 2J [ECF 60-1 at 1-15]).)

On March 17, 1989, after Taylor gave her statement, Searcey drafted an affidavit for an arrest warrant for Winslow and delivered it to Smith. On that same date, the Court issued the arrest warrant, and Meints accompanied Lamkin to Wymore, Nebraska, where Winslow was arrested pursuant to the court-ordered warrant. Thereafter, Winslow was booked into the Gage County Jail. (DSF ¶ 49 (Ex. 2 [ECF 59-1], ¶ 22; Ex. 2E [ECF 59-2 at 32-40]; Ex. 5 [ECF 63-1], ¶ 5; Ex. 7 [ECF 63-5], ¶ 8; Ex. 7C [ECF 63-6 at 4]).)

On March 17, 1989, at the request of Taylor, Price was contacted by DeWitt to visit with Taylor due to her emotional distress. At the onset of the interview, Price informed her that he had been involved with the investigation of the Wilson homicide and that his interview with her was not confidential. Price also informed Taylor that she was not his client but that the Gage County Sheriff's Office was his "client." Taylor agreed to this prior to the beginning of any consultation or clinical intervention.43 Price had counseled her many years prior. Taylor indicated to Price that her condition had significantly improved since then. She stated that she did not have any hallucinations or flashbacks. Price found that Taylor was alert, cooperative, verbally appropriate, and did not show any mood changes. Price found that Taylor understood the nature of the charges against her, her relationship to the charges, and her capacity to interact successfully with her attorney. Price found that Taylor was able to differentiate between right and wrong, and Price found there were no indications that she was legally incompetent or legally insane. Price believed that Taylor was in as good or better shape than he had ever seen her. The interview lasted approximately one hour and Taylor and Price did not discuss the facts of the case at all. That interview was the only interview Price had with Taylor.44 (DSF ¶ 50 (Ex. 3 [ECF 62-1], ¶ 7; Ex. 3C45 [ECF 62-2 at 11, Consultation note concerning Taylor]; Ex. 3L [ECF 62-2 at 47-68]).) According to Price's consultation note, Taylor expressed "considerable fear for her wellbeing from Mr. Winslow." (Ex. 3C [ECF 62-2 at 11].)

On March 17, 1989, Winslow spoke to GCSO Dispatcher Kim Bryson and requested to talk to Searcey at approximately 11:15 p.m. Bryson indicated to Winslow at approximately 11:30 p.m. that she could not reach Searcey but that he would be back in the morning. Winslow began telling Bryson that he needed to talk to Searcey because he had lied in his use immunity statement and that his conscience was getting to him.46 Bryson interrupted him and advised that she would try to call Searcey again. Bryson did reach Searcey who agreed to proceed to the jail to talk with Winslow. Bryson advised Winslow that Searcey was on his way to speak with Winslow. Bryson reported that Winslow was beginning to cry. After Searcey received the call, he contacted Smith because he knew Winslow was represented by Mr. Berry. Searcey arrived at the jail at approximately 12:30 to 1:00 a.m. Before Winslow's statement was taken, Searcey indicated his awareness that Winslow was represented by counsel. Winslow waived his right to have counsel present during the statement, and after being advised of his rights, waived them and signed the Miranda form. Winslow proceeded to give Searcey a statement, which was videotaped. During the interview, Winslow again changed his story and indicated that he lied during the statement taken pursuant to the use immunity agreement. Winslow stated that he lied about his involvement in the Wilson homicide and returned to his original story that he was not involved at all in the homicide.47 He stated that he had only loaned his car to White. When confronted about his numerous lies, Winslow shut down and asked to be returned to his cell. Searcey confirmed that Winslow willingly waived his right to counsel and requested to speak to Searcey without counsel present. Winslow indicated yes to both questions. (DSF ¶ 51 (Ex. 1 [ECF 51-1], ¶ 19; Ex. 2 [ECF 59-1], ¶ 23; Ex. 2K [ECF 60-1 at 16]).)

Thereafter, it was determined based on his statement that Winslow had violated the use immunity agreement. The Gage County Attorney's Office filed a complaint against Winslow for the crime of "first degree murder of Helen L. Wilson in the perpetration or attempt to perpetrate a sexual assault in the first degree." (DSF ¶ 52 (Ex. 1 [ECF 51-1], ¶ 19; Ex. 1F [ECF 55-3, 56-1, 56-2, 56-3, Case file of State v. Winslow, originally at Gage County Court Case No. CR 89-194]).)

On March 18, 1989, Searcey took a voluntary statement from Beth Robinson (Johnson), which did not lead to any helpful information. (DSF ¶ 53 (Ex. 2 [ECF 59-1], ¶ 24; Ex. 2L [ECF 60-1 at 17-22, Transcript of the Robinson statement taken on March 13, 1989]).) Robinson stated that on the evening of February 5, 1985, she was with Thomas Winslow, Joann Taylor, and Charlotte Bishop (Crumb) watching television at Bishop's apartment. (Ex. 2L [ECF 60-1 at 18], p. 2.)

On March 18, 1989, Searcey and BPD Sgt. Stevens traveled to Del City, Oklahoma, to interview Mark Goodson. On March 19, 1989, Goodson gave a voluntary statement. Goodson stated that he was not involved and had no knowledge of the Wilson homicide until days later. Goodson stated that sometime in 1985, he called Taylor in North Carolina and that she admitted to him that she and White had murdered Wilson and that she was trying to cover it up by saying others did it. (DSF ¶ 54 (Ex. 2 [ECF 59-1], ¶ 25; Ex. 2E [ECF 59-2 at 32-40]; Ex. 2M [ECF 60-1 at 23-34, Miranda warning form dated March 19, 1989, and Transcript of Goodson's interview dated March 19, 1989]; Ex. 2N [ECF 60-1 at 35, Sgt. Stevens report dated March 24, 1989]).) Goodson stated he gave a taped statement at the Beatrice Police Department on March 2, 1985, in which he indicated that he called Taylor because he had heard she was "trying to frame [him]" for the Wilson murder; that Taylor said she and White had murdered Wilson and she "put the blame" on Goodson to try "to cover their tracks"; and that Taylor said they "did it" because "the old lady wouldn't give them money." (Ex. 2M, pp. 2-3 [ECF 60-1 at 25-26].)

On March 21, 1989, Searcey was present when Price evaluated Deb Shelden at the request of her counsel. (DSF ¶ 55 (Ex. 2 [ECF 59-1], ¶ 26; Ex. 3E [ECF 62-2 at 16-17, Letter to Korslund re: Shelden dated June 16, 1989]).)

On March 21, 1989, Lincoln Police Officer Van Butsel interviewed Cynthia McMahon in Lincoln, Nebraska. She stated that Charlotte Bishop went by many names and that Bishop had told her she had known about the homicide since the night it happened and was scared. Bishop indicated to McMahon that Taylor lived with her at the time of the Wilson homicide and told her about it when Taylor returned home. Taylor also implicated Beth Johnson to Bishop. (DSF ¶ 56 (Ex. 2 [ECF 59-1], ¶ 27; Ex. 2O [ECF 60-1 at 36-38]).)

On March 22, 1989, Meints assisted Harlan and Searcey in transporting Taylor from the Gage County Jail to the hospital and back for the purpose of obtaining biogenetic samples for testing. Also on March 22, DeWitt assisted in transporting Winslow to and from the Beatrice hospital for the purposes of obtaining biogenetic samples for testing. Winslow had spoken with his attorney, who gave consent for the samples to be taken. (DSF ¶ 57 (Ex. 2 [ECF 59-1], ¶ 28; Ex. 2E [ECF 59-2 at 32-40]; Ex. 4 [ECF 62-3], ¶ 10; Ex. 4E [ECF 62-4 at 7, DeWitt report dated March 22, 1989]; Ex. 6 [ECF 63-3], ¶ 6; Ex. 6C [ECF 63-4 at 4, Harlan report dated March 22, 1989]; Ex. 7 [ECF 63-5], ¶ 9; Ex. 7D [ECF 63-6 at 5, Meints Report dated March 22, 1989]).)

On or about March 22, 1989, Smith sent a memo to DeWitt which indicated further investigation was needed in this case.48 DeWitt passed the information on to Searcey to handle. (DSF ¶ 58 (Ex. 1 [ECF 51-1], ¶ 20; Ex. 1G [ECF 57-1 at 1-2, Smith's letter dated March 22, 1989]).)

On March 24, 1989, Searcey took a voluntary statement from Deb Shelden with BPD Sgt. Stevens present. Shelden indicated that she had no knowledge of the Wilson homicide other than what was in the papers and in a letter received by her husband Cliff Shelden from Taylor. Shelden indicated that Taylor admitted in the letter that she and White killed Wilson. (DSF ¶ 59 (Ex. 2 [ECF 59-1], ¶ 27; Ex. 2P [ECF 60-1 at 39-43, Searcey report dated April 20, 1989]; Ex. 2Q [ECF 60-1 at 44-45, Sgt. Stevens report dated March 24, 1989]).) Shelden's interview was not recorded, but Stevens and Searcey prepared separate reports.49 Stevens wrote in his report, which was prepared on the same date as the interview, that Deb remembered Clifford Shelden receiving a letter from Joann Taylor, and although Deb did not read the letter herself, Clifford read it and advised Deb that Taylor admitted to killing Wilson. (Ex. 2Q, p. 1 [ECF 60-1 at 44]; Taylor's Ex. 32 [ECF 114-26, BPD report, 3/24/89, Stevens interview of Deb Shelden] at 1.) According to Stevens' report, Deb also said that the letter may have mentioned Joseph White, but she was not sure. (Id., p. 2.) When asked why she did not provide this information to the police, she responded, "You know Joann, everything she ever said was a lie." (Id.) According to Searcey's report, which was prepared on April 20, 1989, Deb claimed that she "read the letter herself and that Joann Taylor had made a statement in that letter that Joseph Edgar White alias Lobo and ... Joann Taylor were responsible for killing Helen Wilson." (Ex. 2P [ECF 60-1 at 40], p. 2; Taylor's Ex. 33 [ECF 114-27] at 2.)

On March 25, 1989, Searcey took a voluntary statement from Darren Munstermann. Munstermann indicated that at the time of the Wilson homicide he was residing with Taylor, Charlotte [Bishop], and Cliff Shelden. Munstermann indicated he had no knowledge of the homicide and that he was home alone that night. Further, Munstermann remembered talking with police on February 18, 1985, and had scratches on his arm that he might have received from Taylor. According to Munstermann, Taylor was a violent person and she left town shortly after the Wilson homicide. (DSF ¶ 60 (Ex. 2 [ECF 59-1], ¶ 30; Ex. 2E [ECF 59-2 at 32-40]; Ex. 2R [ECF 60-1 at 46-60, Interview transcript of Munstermann dated March 25, 1989]).) Sgt. Stevens also participated in the interview. (See Ex. 2R [ECF 60-1 at 46-60].)

Munstermann told Searcey and Stevens that on the night of the homicide he was home by himself, and that he went to bed around 11:00. (Id., pp. 5-6.) He said that he saw Joann, Charlotte, and Cliff the next day, and he said that he did not remember any of them acting "unusual" or "strange" or "different." (Id., pp. 6-7.) He then explained that shortly after the homicide, Taylor said that she wanted to move back to South Carolina, and she left town. (Id., p. 7.) After Searcey twice asked whether Joann Taylor was in a hurry to leave town, Munstermann said, "Yeah, now that you say it, I'm kinda remembering now." (Id.) Searcey asked, "Now wasn't she just a little ancy [sic] ... ?" and Munstermann replied, "Yeah, I think she was ancy, [sic] from, you know, what when [sic] that happened to when she left." (Id.) Searcey asked, "So she was a tad bit nervous, would you say?" and Munstermann replied, "I, I cou, [sic] I would say she was just a little bit." (Id.) Searcey added, "Really she wasn't acting normal. Is that right, as you knew her. Is that right or wrong?" (Id.) Munstermann responded, "I'd say, you know, that'd be right." (Id.) Searcey commented that it seemed that "a few things [were] coming back a little bit," and he then stopped the tape recording to give Munstermann time to "think" and "jog [his] mind." (Id., p. 8.) When the interview resumed, Searcey asked Munstermann whether he had heard any comments from Joann Taylor about why she was leaving town, and Munstermann responded, "I don't think she told them exactly why, I think she just made up something then, you know made up an excuse to leave town." (Id.) Searcey asked, "Do you think it could have been possibly because she was involved in this homicide, and she was wanting to get the hell out of town?" (Id.) Munstermann agreed. (Id.)

Later during the interview, the following exchange occurred between Searcey and Munstermann:

(Id. pp., 10, 12-13.) Munstermann then agreed to take a polygraph test, testify, and provide samples of blood, hair, and saliva "for investigative purposes." (Id., p. 13.)

On or about March 28, 1989, Smith sent DeWitt a memo wherein Smith conveyed information received from BPD Sgt. Stevens and asked that GCSO follow up on it. DeWitt passed the information on to Searcey to handle. (DSF ¶ 61 (Ex. 1 [ECF 51-1], ¶ 21; Ex. 1H [ECF 57-1 at 3, Smith's memo dated March 28, 1989]).)

On or about March 29, 1989, Smith sent DeWitt a memo from Smith wherein Smith indicated that GCSO needed to look for all statements made by Beth Winslow (Johnson) since 1985 and that Smith had been informed that a piece of evidence in the Wilson homicide (a bloody bra) was missing, and GCSO needed to confirm that information. (DSF ¶ 62 (Ex. 1 [ECF 51-1], ¶ 22; Ex. 1I [ECF 57-1 at 4, Smith's memo dated March 29, 1989]).)

On March 30, 1989, BPD Sgt. Stevens took a statement from Wilbur Brown, Lisa Podendorf's father-in-law. (Ex. 2 [ECF 59-1], ¶ 31; Ex. 2S [ECF 60-1 at 61-62, Wilbur Brown statement transcript with Sgt. Stevens dated March 30, 1989].) Later on March 30, 1989, Searcey also took a voluntary statement from him. Wilbur Brown confirmed Lisa Podendorf's statements. (DSF ¶ 63 (Ex. 2 [ECF 59-1], ¶¶ 31, 32; Ex. 2S [ECF 60-1 at 61-62]; Ex. 2T [ECF 60-1 at 63-68, Wilbur Brown statement transcript dated March 30, 1989]).) Brown said that according to Lisa, Joann Taylor watched Wilson's murder, revealed this fact to Lisa, and threatened to kill Lisa if she made a statement about it. (Ex. 2S [ECF 60-1 at 61], p. 1.) Many of Searcey's questions to Brown were about his interview with Sergeant Stevens. Searcey asked Brown, "Did [Stevens] make any comments about myself Officer Searcey?" and Brown replied, "Yeah he did he said Officer Searcey kept all the information to himself, he would not give me none of it." (Id., p. 4.) Brown added, "Officer Stevens did say that if he'd of had one statement that I guess my daughter-in-law gave that you could of had that murder solved in three days after it happened, but I guess according to him he did not get that one information." (Id., p. 6.)

On March 30, 1989, Searcey took a voluntary statement from Lawrence Brown, husband of Lisa Podendorf. Brown verified Lisa Podendorf's statements that Taylor had admitted to her involvement in the Wilson homicide. Brown also verified that Podendorf did not come forward with the information because she was scared of Taylor, as Taylor had threatened her. (DSF ¶ 64 (Ex. 2 [ECF 59-1], ¶ 33; Ex. 2U [ECF 60-1 at 69-76, Lawrence Brown statement transcript dated March 30, 1989]).)

On March 30, 1989, Searcey took a voluntary statement of Margaret Brown, Wilbur Brown's daughter-in-law. Margaret Brown confirmed Lisa Podendorf's statements. (DSF ¶ 65 (Ex. 2 [ECF 59-1], ¶ 34; Ex. 2V [ECF 60-2 at 1-5, Margaret Brown statement transcript dated March 30, 1989]).)

On March 31, 1989, Wilbur Brown was interviewed at the GCSO with DeWitt present. BPD Capt. Elvin Waltke conducted the interview. (DSF ¶ 66 (Ex. 2 [ECF 59-1], ¶ 35; Ex. 2W [ECF 60-2 at 6-16, Wilbur Brown interview transcript dated March 31, 1989]).) In the recorded interview, Brown eventually repeated his statement that Joann Taylor told Lisa Podendorf that she (Taylor) was in the apartment when Wilson was killed, and that Lisa relayed this information to Brown. (Ex. 2W [ECF 60-2 at 15], p. 10.) Before the recording began, however, Brown denied that Lisa told him anything about the matter; Brown stated that he "was trying to protect [his] daughter-in-law" because he "was scared it would get her in trouble." (Id., pp. 1-2, 4.) He said that Taylor told Lisa "if she said anything, she would kill her." (Id., p. 2.) Brown also repeated his statement that on March 30, 1989, Stevens told him that Searcey "kept all the information to himself." (Id., p. 6.) Brown also said, however, that when Searcey initially spoke with Lisa about the case, Searcey told her not to tell anybody what she knew. (Id., p. 4.) According to Sgt. Stevens, Sheriff DeWitt subsequently informed Chief Luckeroth that Stevens was to stay out of the Wilson case because he was "muddying the waters." (Taylor's Ex. 91 [ECF 117-1 at 109-110].)

On or about April 4, 1989, Smith sent DeWitt a memo requesting that Searcey have Wilson's blood retyped. Also on April 4, 1989, Smith sent a letter with enclosed amended complaints to counsels for Winslow, White, and Taylor. (DSF ¶ 67 (Ex. 1 [ECF 51-1], ¶¶ 23, 24; Ex. 1J [ECF 57-1 at 5, Smith's memo dated April 4, 1989]; Ex. 1K [ECF 57-1 at 6, Smith's letter dated April 4, 1989]).)

On April 10, 1989, Searcey took a statement from Cindy Reiber after she was Mirandized. Reiber had not spoken with Searcey prior to the interview. She was previously married to Winslow. She stated that Winslow had not told her much but that he drove White, Taylor, and Beth Johnson to a party and that Taylor told him about the homicide. Winslow told Reiber that Taylor admitted to him she and White killed Wilson.50 Winslow also told Reiber that Taylor had threatened him if he told anyone.51 She had also talked to Lisa Podendorf about her conversation with Taylor.52 Reiber stated that Cliff Shelden told her Winslow was involved in the Wilson homicide. (DSF ¶ 68 (Ex. 2 [ECF 59-1], ¶ 36; Ex. 2P [ECF 60-1 at 39-43]; Ex. 2X [ECF 60-2 at 17-31]).)

On April 12, 1989, Searcey took a voluntary statement from Cliff Shelden with Deputy Lamkin present.53 Cliff Shelden stated that on the night of the Wilson homicide, he was in the hospital. He further stated that three to four months after the Wilson homicide, he received a letter from Taylor wherein she admitted that she (Taylor), White, and Winslow had killed Wilson. In the letter, Taylor stated that she took some money from Wilson's residence. Cliff Shelden stated that Winslow told him the details of the homicide and that Taylor also participated in the sexual assault of Wilson. Winslow told Shelden that they got scared because the phone kept ringing; so, Winslow disconnected it. Winslow also stated that he found some money in the apartment and told Shelden that his wife, Deb Shelden, was also at Wilson's apartment that night. Cliff Shelden stated that Winslow indicated White had pushed Deb Shelden and that she had hit her head; that Taylor threatened Deb Shelden if she told anyone; and that White put a pillow over Wilson's face. (DSF ¶ 69 (Ex. 2 [ECF 59-1], ¶ 37; Ex. 2P [ECF 60-1 at 39-43]; Ex. 2Y [ECF 60-2 at 32-52, Cliff Shelden statement transcript dated April 12, 1989]; Ex. 5 [ECF 63-1], ¶ 8).)

Searcey and Lamkin reported that contact was made with Cliff Shelden at Lancaster County Corrections in Lincoln, Nebraska, at around 1:30 p.m. on April 12, 1989. However, Shelden's recorded statement did not begin until around 5:00 p.m. (Taylor's Ex. 116 [ECF 118-12, GCS report, 4/12/89, Lamkin on Cliff Shelden interview].) Shelden said he first learned about Wilson's murder a week or two after it happened when he got out of the hospital. (Ex. 2Y [ECF 60-2 at 36], p. 5;Taylor's Ex. 117 [ECF 118-13, GCS recorded statement, Clifford Shelden, 4/12/89] at 5.) The following questions were then asked and answered:

(Id. at 5-6.) Shelden said that Taylor's letter was mailed from Indiana. (Id. at 6.) When asked what Joann told him, Shelden said "she told me that her, Tom Winslow and Joseph Edgar White was responsible for the death of Helen Wilson." (Id.) Shelden said that Taylor stated in the letter that said she, Winslow, and White broke into Wilson's apartment, took her money, and then sexually assaulted and murdered her. (Id.) Between $800 and $1,800 supposedly was taken from Wilson's purse or some kind of container they found by rummaging through the apartment. (Id. at 6-7.)

Shelden said that Winslow told him that the three of them forced their way into Wilson's apartment; that after struggling with Wilson in her bedroom, Taylor and White dragged her into the living room where Wilson was wrestled to the floor and a pillow was put over her face; that White tore Wilson's clothes off; that Taylor held Wilson's wrists by kneeling on them, and then started caressing Wilson and kissing her breasts and lips; that after White completed his assault, Winslow had oral sex with Wilson; and after that, White had anal sex with Wilson. (Id. at 8-10.) Searcey asked if Winslow said anything about what happened to Wilson's underpants, and Shelden said they used them to tie Wilson's wrists, or maybe they used a bandana from White's back pocket. (Id. at 18.) Searcey asked Shelden if Winslow made a comment about a phone. Shelden said the phone rang anywhere from 5 to 10 times, and they just stopped what they were doing until the other party hung up. When asked by Searcey, "Was that the only thing they had to do with the phone?" Shelden added that White "disconnected the phone from the phone itself." (Id. at 11.) Searcey also asked Shelden about the building's lights:

(Id. at 12.)

Clifford Shelden said he did not believe Winslow when he said Deb Shelden was involved in the homicide because Winslow "lies about everything." (Id. at 13.) Shelden said that according to Winslow, Deb struck a mirror when she was pushed by White and she received a cut on her head. (Id. at 13-14.) He agreed with Searcey that Winslow said the cut "was bleeding quite a bit." (Id. at 14.)

On April 13, 1989, Searcey took a statement from Deb Shelden at the Lincoln Police Department in Lincoln, Nebraska, after she was Mirandized.54 Shelden stated that on February 5, 1985, she went with Winslow to the apartment of Kathy Bartek and James Dean. She then left the apartment with White, Winslow, and Taylor. Shelden stated that Taylor asked Winslow to drive to an address because she wanted to see someone there. They proceeded to the apartment complex where Wilson lived.55 Shelden stated that she knew it was where Wilson lived. Wilson was her great-aunt, and her mom had told her where Wilson lived. Shelden indicated that she had no knowledge that they were going to Wilson's apartment before the homicide. She further stated that Taylor went straight to Wilson's door and knocked. Wilson opened the door, recognized Shelden and said "hi" to her before Winslow and Taylor pushed their way into the apartment with Taylor demanding money. Shelden further stated that Winslow and White helped force Wilson into the bedroom. Shelden indicated that she told them to stop, but White shoved her and she fell to floor, hitting her head on the bed and causing it to bleed in back.56 Taylor, Winslow, and White carried Wilson to the living room and Wilson was resisting and screaming. Shelden stated that they were threatening and demanding money with White's hand at Wilson's throat. Taylor put a pillow over Wilson's face with White's hand remaining at Wilson's throat. Winslow was holding Wilson's legs and pulled them apart and then White raped her while Taylor demanded money and threatened worse while holding the pillow over Wilson's face. Shelden stated that after White was done, he traded positions with Winslow and held Wilson's feet. She was not sure what Winslow did, and she did not see Taylor do anything sexual with Wilson. After the rape, Taylor, Winslow, and White looked for money. Shelden stated that Taylor said she found money in Wilson's bedroom, but saw nothing in her hands. When asked why she did not just run away, Shelden stated she was scared and Winslow had threatened her. (DSF ¶ 70 (Ex. 2 [ECF 59-1], ¶ 38; Ex. 2P [ECF 60-1 at 39-43]; Ex. 2Z [ECF 60-2 at 53-79]; Ex. 5 [ECF 63-1], ¶ 8).)

On April 14, 1989, at approximately 9:43 a.m., Deb Shelden signed a "waiver form" allowing the investigators to obtain blood, hair, and saliva samples from her. (Taylor's Ex. 33 [ECF 114-27, GCS report, 4/20/89, Searcey interview of Deb Shelden] at 5.) Searcey and Lamkin then transported Deb Shelden to the Beatrice Community Hospital, where the samples were collected. (Id.)

On April 14, 1989, Searcey and Lamkin interviewed Deb Shelden at the GCSO after she was Mirandized. The purpose of the interview was to go over the interview of April 13, 1989, asking basically the same questions to ensure that Shelden's answers and statements were true and accurate to the best of her knowledge. Shelden indicated that she understood the purpose of the interview and proceeded to reveal the same facts and added that she remembered James Dean was present that night as wells.57 According to Shelden, Dean did not do anything sexual with Wilson and simply stood there watching and then may have left with them. (DSF ¶ 71 (Ex. 2 [ECF 59-1], ¶ 39; Ex. 2AA [ECF 61-1]; Ex. 5 [ECF 63-1], ¶ 9).) When asked why she did not remember Dean's presence before, Deb Shelden said she guessed she "was blocking it." (Ex. 2AA [ECF 61-1], p. 31.) She also said that there was no one else in Wilson's apartment, and she was sure that Kathy Bartek did not come with the group to Wilson's apartment because Kathy had two children at home. (Id., pp. 49-50.)

During the April 14 interview with Deb Shelden, Searcey also revisited Deb's claim that the group drove to Wilson's apartment at 7:00 p.m. on the night of the homicide:

(Id., pp. 56-57.)

On April 13 or 14, 1989, after interviewing Deb Shelden, Searcey drafted an affidavit for an arrest warrant for Dean and forwarded it to Smith.58 On April 14, 1989, the Court issued a warrant for Dean's arrest. On April 14, 1989, DeWitt, Searcey, and Lamkin arrested Dean pursuant to the arrest warrant issued by the court. Dean was given his Miranda rights and booked into the Gage County Jail.59 (DSF ¶ 72 (Ex. 2 [ECF 59-1], ¶ 40; Ex. 2P [ECF 60-1 at 39-43]; Ex. 2BB [ECF 61-2 at 1-2]; Ex. 5 [ECF 63-1], ¶ 14).)

On April 14, 1989, based upon the investigation of the Wilson homicide, Smith filed complaints against Deb Shelden and James Dean in the Gage County Court charging that they did "aid, abet, procure or cause another to kill Helen Wilson in the perpetration of or attempt to perpetrate any sexual assault in the first degree, robbery, kidnapping or burglary." (DSF ¶ 73 (Ex. 1 [ECF 51-1], ¶ 25; Ex. 1L [ECF 57-2, Case file of State v. Shelden, originally at Gage County Court Case No. CR 89-254]; Ex. 1M [ECF 57-3, 57-4, Case file of State v. Dean, originally at Gage County Court Case No. CR 89-255]).) Deb Shelden was arraigned on April 14 at 4:50 p.m. and was appointed counsel.60 (Ex. 1L [ECF 57-2], p. 3; Taylor's Ex. 119 [ECF 119-2, Arraignment of Debra Shelden, 4/14/89]. See also Taylor's Ex. 43 [ECF 115-3, Billing record, Paul Korslund].)

On April 15, 1989, Dean was transported to Beatrice Hospital to have biogenetic samples taken for testing. (DSF ¶ 74 (Ex. 2 [ECF 59-1], ¶ 41; Ex. 2P [ECF 60-1 at 39-43]).) Testing indicated Dean's blood type was O negative. (Taylor's Ex. 123 [ECF 119-6, GCS report, 4/15/89, Dean blood test results].)

On April 15, 1989, Kathy Bartek arrived at the GCSO asking for information about her boyfriend, James Dean. DeWitt advised her that he was in custody and had been arrested for the Wilson homicide. DeWitt contacted Searcey and Lamkin to interview Bartek because she was claiming that Dean could not have been involved with the Wilson homicide since he was in Lincoln, Nebraska, with her at the time of the homicide. During the interview, Kathy Bartek admitted that she was living in Beatrice at the time of the homicide. She also admitted that she and Dean were in Beatrice in the early evening hours of February 5, 1985. She further stated that Taylor, Winslow, and White had come to her residence at approximately eight or eight-thirty in the evening. They spent some time in her residence and later left in Winslow's vehicle, and Winslow was driving. Bartek was then advised that the deputies would like to interview her again at a later date and take a formal statement from her. (DSF ¶ 75 (Ex. 2 [ECF 59-1], ¶ 42; Ex. 2P [ECF 60-1 at 39-43]).)

Dean testified during a deposition taken in connection with the criminal cases that he was interviewed by Searcey and Lamkin for over two hours on April 16, 1989, during which time he denied having any knowledge of the Wilson homicide. (Dean's Ex. 18 [ECF 108-1, Transcript of Deposition of James Dean, July 17, 1989] at 27.) Dean now claims that Sheriff DeWitt and County Attorney Smith were also present during that interview (Dean's Ex. 16 [ECF 109-1], ¶ 19; Taylor's Ex. 146 [ECF 121-5] ¶ 19.) Dean also claims that he requested the presence of an attorney as many as five times, that one of the defendants told him that he did not need a lawyer, and that he needed to tell them what happened. (Id.) Dean further states, "I repeatedly told [Searcey and Lamkin] I did not know anything about [the crime] and did not participate in it.... I cannot recall exactly what all the questions were. I can say that I continually told the deputies questioning me that I did not have any part in this crime." (Id.) Dean also claims that DeWitt, Searcey, and Lamkin took turns questioning him for about three hours on April 17, 1989. (Id., ¶ 20.) Dean says that "they told me that there had been a murder-rape of Mrs. Wilson, and that Deb Shelden and others were involved. They told me that Deb Shelden, Joann Taylor and Kathy Gonzalez said I was at the scene and was involved." (Id.) Dean was arraigned on April 17, 1989, at 3:45 p.m., and was appointed counsel at that time. (Ex. 1M [ECF 57-3], p. 7.)

On April 19, 1989, Smith sent a letter to Shelden's attorney, Paul Korslund, wherein he withdrew a plea offer due to "potential jurisdictional issues." A revised offer was made to Mr. Korslund. Smith continued to request that Shelden take a polygraph, testify truthfully, and cooperate with the State in any and all cases involving the Wilson homicide. (DSF ¶ 76 (Ex. 1 [ECF 51-1], ¶ 26; Ex. 1N [ECF 58-1 at 1, Smith's letter dated April 19, 1989]).) According to Smith's letter, "on April 18, 1989, the State had made an offer of a manslaughter charge for [Shelden's] plea of guilty and total cooperation and testimony...." (Ex. 1N [ECF 58-1 at 1]; Taylor's Ex. 50 [ECF 115-8, Correspondence from R. Smith to P. Korslund, 4/14/89 [sic], Shelden plea].) Smith stated that the offer was being withdrawn because "after having researched this issue, I find that there would be some very severe problems with the upholding of a manslaughter plea because of the jurisdictional matters contained in Section 29-110." (Id.) The revised offer required a plea to a charge of aiding and abetting second-degree murder. (Id.)

On April 24, 1989, Price consulted with Deb Shelden at the request of her attorney, Paul Korslund, who was present during the evaluation at the Gage County Sheriff's Office. Although Shelden had been seen in Price's office prior to 1985, Price had not met Shelden prior to the Wilson homicide investigation. Price advised Shelden that there was no confidentiality involved in the evaluation and that a copy would be submitted to her attorney and to the Court. Price also advised her that he was involved in consultation with the GCSO, the BPD, and the Gage County Attorney in the investigation of the Wilson homicide and that he had assisted in transporting a subject involved in the case from Alabama. Shelden acknowledged her willingness to participate, waived her rights to confidentiality, and acknowledged that she was aware of Price's prior involvement in the case in the presence of her attorney. The purpose of Price's evaluation on April 24, 1989, was to determine her competency to have given a statement to the GCSO; to participate in hearings related to the case with respect to her waiver of a preliminary hearing; to make statements to the GCSO; to enter a plea in the district court; and to understand the nature of the charges against her, her position with respect to the charges, and her ability to assist her attorney in her defense. Based upon the evaluation, Price found Shelden to be within the normal range of intellectual function. Price also found that she met the criteria to be found competent to stand trial and to enter into agreements and contracts knowingly and willingly. The interview lasted approximately one and one-half hours. Price and Shelden did not discuss the actual details of the Wilson homicide, but did discuss the differences between first-degree and second-degree murder. At that time, Price was not that familiar with the details, as he did not need to know, and did not want to know, them. Price noted during his deposition that, like Taylor, Shelden expressed fear for her well-being from Winslow. (DSF ¶¶ 76 (second),61 77 (Ex. 3L [ECF 62-1], ¶ 8; Ex. 3E [ECF 62-2 at 16-17]; Ex. 3L [ECF 62-2 at 61-62]).)

On April 24, 1989, a plea agreement was reached between the State and Shelden, through her counsel, Paul Korslund. Shelden, Korslund, and Smith signed the plea agreement. (DSF ¶ 77 (second) (Ex. 1 [ECF 51-1], ¶ 27; Ex. 1O [ECF 58-1 at 2-3, Plea agreement for Shelden on April 24, 1989 and the Amended plea agreement April 26, 1989]).) Shelden agreed to "testify truthfully in any and all cases and give total cooperation to the State of Nebraska regarding the homicide of Helen L. Wilson." (Ex. 1O [ECF 58-1 at 2], p. 2; Taylor's Ex. 120 [ECF 119-3, Debra Shelden plea agreement, 4/26/89].) For its part, the State pledged to "file an amended information charging aid[ing] and abetting for the Second Degree Murder of Helen L. Wilson" and to "recommend the minimum sentence of 10 years" if Deb Shelden complied with the terms of the agreement. (Id.) On April 26, 1989, Smith, Shelden, and Shelden's attorney initialed an amended plea agreement stating that Shelden would also plead guilty to the amended information. (Id., p. 3.)

On April 26, 1989, pursuant to the plea agreement, Smith filed an amended information charging that Deb Shelden "aid[ed], abet[ted], procure[d] or cause[d] another to cause the death of Helen Wilson intentionally, but without premeditation." (Ex. 1L (ECF 57-2 at 15].) That same day, Shelden entered a guilty plea which was accepted by the court. (Id. at 20-22.) District Judge William B. Rist made a specific finding that "the defendant has voluntarily, knowingly and intelligently entered her plea of guilty to the charge contained in the amended Information." (Id. at 22.)

On April 28, 1989, Harlan transported Taylor to and from Omaha to see Dr. Gutnik for an evaluation. Harlan gave to Dr. Gutnik a sealed envelope from DeWitt which included a letter from Taylor's attorney and the videotaped interview of Taylor. During the transport, Taylor did not talk very much, but did talk about her boyfriend and marriage. (DSF ¶ 79 (Ex. 6 [ECF 63-3], ¶ 7; Ex. 6D [ECF 63-4 at 5, Harlan report dated April 30, 1989]).) The evaluation was ordered by the court, on a motion filed by Taylor's attorney, Lyle Koenig, to determine whether Taylor was competent to stand trial and whether she was sane at the time of her alleged acts on or about February 6, 1985. (Ex. 1D [ECF 51-3 at 43-44].) The court's order specified that the escorting deputy was not to be in the room during the examination. (Id.)

A psychiatric diagnostic evaluation of Taylor was issued by Bruce D. Gutnik, M.D., on April 30, 1989. Dr. Gutnik's report states in part:

(Taylor's Ex. 107 [ECF 118-3, Joann Taylor evaluation, Dr. Gutnik, 4/28/89] at 1, 6, 12-13.)62

On April 29, 1989, Harlan assisted in transporting Dean to Lincoln, Nebraska, for a polygraph test. Following the test, Harlan assisted in transporting Dean back to the Gage County Jail. (DSF ¶ 80 (Ex. 6 [ECF 63-3], ¶ 8; Ex. 6E [ECF 63-4 at 6, Harlan report dated April 29, 1989].)63

On or about April 30, 1989, Smith received a copy of the polygraph report on Dean from Mr. Jacobson. According to the polygraph report, deception was indicated. (DSF ¶ 81 (Ex. 1 [ECF 51-1], ¶ 29; Ex. 1Q [ECF 58-1 at 8-15, Polygraph report for Dean received on or about April 30, 1989]).) In the report Jacobson concluded:

(Ex.1Q [ECF 58-1 at 13], p. 6; Taylor's Ex. 124 [ECF 119-7, Polygraph report for James Dean, 4/29/89] at 6.)

Dean claims that "[s]ometime after the polygraph test, but before I agreed to `confess,' Searcey and Lamkin took me first to Helen Wilson's apartment and then to Marshall's Truck Stop." (Dean's Ex. 16 [ECF 109-1], ¶ 23; Taylor's Ex. 146 [ECF 121-5] ¶ 23.) Dean says, "I was informed that my lawyer knew about this trip and agreed to it." (Id.) Dean's attorney states that he was not made aware of the trip. (Dean's Ex. 17 [ECF 109-2], ¶ 21.)

Dean also contends that "the law enforcement officers of Gage County talked to me outside of [my attorney's] presence on numerous occasions. I cannot be specific as to how many, but it seemed like it was almost on a daily basis that they would come and talk to me, either taking me out of my cell or coming into my cell. During these conversations, I was repeatedly advised that if I did not cooperate I would get the electric chair." (Dean's Ex. 16 [ECF 109-1], ¶ 25; Taylor's Ex. 146 [ECF 121-5] ¶ 25.) Dean says these statements were made by DeWitt, Searcey, Lamkin, and Smith. (Taylor's Ex. 122 [ECF 119-5, Deposition of James Dean, 9/16/10] at 17.)

On May 2, 1989, at the request of Dean's counsel, Richard Schmeling, Smith, and DeWitt, Price consulted with James Dean. Prior to interviewing Dean, it was made clear that there would be no confidentiality. Price explained that his role was as a psychologist for the State and the Gage County Sheriff's Office. Dean's attorney agreed to these terms. Dean was Mirandized in the presence of his attorney. At the time of the initial contact, Price was informed that Dean had previously denied any involvement in the Wilson homicide and that Dean's attorney and the Gage County Attorney had come to an agreement that Dean would complete a polygraph examination and that if he was found to be deceptive, the parties would discuss a plea agreement. The polygraph indicated that Dean was being deceptive. Dean continued to maintain that he was not in the apartment or involved in the homicide. Dean was informed of Price's prior involvement in the Wilson homicide investigation including other evaluations and consultations. After Dean was confronted with the polygraph results as well as the testimony that led to his arrest, he continued to deny being in Wilson's apartment, but he began to show that he was doubting the veracity of his own denials. Dean continued to believe that he did not participate in any act of violence. It was Price's opinion that Dean responds negatively and emotionally to violence and was overwhelmed by the violence he witnessed. It was Price's opinion that Dean is not a particularly violent person, that Dean is repulsed by "ultra" violence, that Dean witnessed "ultra" violence while in Wilson's apartment, and that the degree of violence that he witnessed overwhelmed him emotionally and he repressed the memory. Based upon Dean's history as reported to Price, the extreme violence he had experienced throughout his life, the fact that he had failed a polygraph, Price's overall impression of Dean through Price's interview of him, and by years of training and experience working as a police psychologist, it was Price's opinion that Dean was present at the Wilson homicide and his memories of it had been repressed. (DSF ¶¶ 82-85 (Ex. 3 [ECF 62-1], ¶¶ 10, 16; Ex. 3G [ECF 62-2 at 21, Letter to Smith re: Dean dated June 28, 1989]).)

Price's consultation report states that as the session progressed, Dean "began to realize that the polygraph was revealing at least at the subconscious level his awareness that he was present in the apartment but could not reconcile his being present with the conscious belief that he was not there." (Ex. 3F [ECF 62-2 at 19, Consultation note concerning Dean], p. 2.)64 The report also states that the group had "a rather extended discussion" with Dean that caused Dean to be "`developed' to the scenario that it was likely that Mr. Dean was present in the apartment, [and] per his testimony and the testimony of an eye witness he was not actively involved in any act of violence." (Id.) Price indicated that Dean needed "continuing supportive therapy" to help him recall the memories that, according to Price, Dean repressed. (Id.) Dean "was agreeable" to receive this therapy, and Dean's attorney agreed that the therapy could proceed without counsel being present. (Id.)65

Dean says that his attorney was present the second time he spoke with Price,66 as were DeWitt and Searcey. (Dean's Ex. 16 [ECF 109-1], ¶ 24; Taylor's Ex. 146 [ECF 121-5], ¶ 24.) During this meeting, according to Dean, he was shown a number of crime-scene photographs, including views of Helen Wilson's body. He says he "felt very sorry for her" and "began to cry, to my recollection." (Id.) Dean further states: "During this interview, Dr. Price advised that he thought I had witnessed the crime and that it was so gruesome that I had actually repressed the memory. I continued to deny that I had anything to do with the crime." (Id.)

Dean also says that "[d]uring the afternoon of May 1, 1989, DeWitt, Schmeling, Searcey, Price and Smith and myself viewed a video of the crime scene which showed graphic images of Helen Wilson and the crime scene." (Id.) Richard Schmeling, who was Dean's attorney, recalls "that Dean's viewing of the crime scene videotape occurred on May 8, 1989, immediately before police questioned Dean on the record." (Dean's Ex. 17[ECF 109-2], ¶ 49.) Schmeling states: "I was present for this viewing and recall that Dean was very emotionally affected by this videotape. Dean leaned his head onto my shoulder, and crying, exclaimed, `Oh, that poor lady, that poor lady!' After seeing the videotape (and calming down), Dean proceeded to give a statement disclosing additional details." (Id.) However, during a deposition on July 17, 1989, taken in connection with the criminal cases, Dean and Schmeling both stated that the video was not viewed until May 17, 1989, when Dean entered his plea. (Dean's Ex. 18 [ECF 108-1] at 215-16.)

On May 8, 1989, as part of a plea agreement, Dean gave a recorded statement.67 Present during the statement were Dean's counsel, Schmeling, and Smith with DeWitt interviewing and Harlan videotaping. After being Mirandized, Dean indicated that he was recalling that he was present during the Wilson homicide and that other people were there too. Dean named Taylor, Winslow, White, and Deb Shelden as other persons present at the Wilson homicide. After the factual statement was taken, Smith made clear on the record that Dean had not been threatened or promised anything outside of a plea agreement to which Dean agreed. (DSF ¶ 86 (Ex. 4 [ECF 62-3], ¶ 17; Ex. 4F [ECF 62-4 at 8-15, Dean statement and Miranda dated May 8, 1989]).)

During his statement Dean was asked how he and the others gained access to Mrs. Wilson's apartment. He answered, "I can't remember. I remember somebody knocking on the door and we went in, that is about as far as I am right now." (Ex. 4F [ECF 62-4 at 11], p. 3; Taylor's Ex. 58 [ECF 115-10] GCS recorded statement, James Dean, 5/8/89] at 3.) Dean could not remember why they went to the apartment but added, "Maybe later on I can remember that stuff." (Id.) He denied touching Helen Wilson and did not remember "at this time" seeing anyone else touch her. (Id.) When asked if anyone else was with them, Dean answered not that he remembered "at this point." (Id., p. 5.) The question was asked again:

(Id., p. 6.) Smith also asked Dean why he was no longer denying any involvement in the crime:

(Id., p. 4.)

On May 8, 1989, following the statement that day, DeWitt delivered Dean his dinner. At that time, Dean confided in DeWitt that he felt better now that he had told the truth about the Wilson homicide. Dean stated he had to get it off his mind. Dean also indicated that he held out so long because he was afraid someone would hurt him if he told the truth. DeWitt assured him he would remain safe in the custody of the Gage County Jail. Dean was teary-eyed and stated he felt relieved that he finally admitted his presence at the Wilson homicide. (DSF ¶ 87 (Ex. 4 [ECF 62-3], ¶ 18; Ex. 4G [ECF 62-4 at 16, DeWitt report dated May 8, 1989]).)

On May 10, 1989, Searcey and Lamkin interviewed Dean at the GCSO. Dean was Mirandized and the interview was conducted in the presence of Dean's counsel, Richard Schmeling. During the interview, Dean admitted that he was present at the time of the Wilson homicide and that Winslow, White, Taylor, and Deb Shelden came to his residence before the homicide and asked him to join them. They asked him to go somewhere with him, but did not give him any specifics that he could remember. He stated that Winslow drove him, White, Taylor, and Shelden to the apartment building where Wilson lived. Dean thought they stopped there to visit White's girlfriend in the building, Kathy Gonzalez. He stated that they all went to an apartment, that someone knocked, and that Wilson answered the door. He stated that Taylor, White, and Winslow grabbed Wilson and went into the apartment. Dean stated that he and Shelden also entered the apartment. He stated that one of them slapped Wilson. He stated that Shelden asked Wilson if she was alright. He stated that Wilson struggled and that they went into another room. Dean's recall was better than the May 8, 1989, interview, but still fragmented. (DSF ¶ 88 (Ex. 2 [ECF 59-1], ¶ 43; Ex. 2CC [ECF 61-2 at 3-37, Searcey report dated May 10, 1989, Miranda warning form dated May 10, 1989, and Transcript of Dean's interview dated May 10, 1989]; Ex. 5 [ECF 63-1], ¶ 11).)69

On May 11, 1989, pursuant to the plea agreement with Deb Shelden, she was given a polygraph examination by Paul Jacobson. Harlan transported Shelden for a polygraph test and then returned her to the GCSO. Jacobson indicated that her test "look[ed] good." On or about May 15, 1989, Smith received the polygraph report wherein Mr. Jacobson reported no deception was indicated. (DSF ¶ 89 (Ex. 1 [ECF 51-1], ¶ 30; Ex. 6 [ECF 63-3], ¶ 10; Ex. 6F [ECF 63-4 at 7, Harlan report dated May 11, 1989]).) Jacobson's report to the county attorney reads as follows:

(Ex. 1R [ECF 58-1 at 16-22, Polygraph report for Shelden received on or about May 15, 1989].)70

On May 17, 1989, Searcey took another statement from Dean at the GCSO. Dean was Mirandized and the interview was conducted in the presence of Dean's counsel, Richard Schmeling, and DeWitt. Dean stated that on February 5, 1985, he rode in a car driven by Winslow with White, Taylor, and Deb Shelden to Wilson's apartment building. He stated that they all went inside Wilson's apartment. He admitted that he witnessed Winslow, White, and Taylor sexually assault Wilson.71 He stated that he was not sure if Wilson was alive at the time they left. Dean added that he remembered seeing another person at the scene of the crime and gave a physical description but couldn't remember a gender or a name. (DSF ¶ 90 (Ex. 2 [ECF 59-1], ¶ 44; Ex. 2DD [ECF 61-2 at 38-47]; Ex. 5 [ECF 63-1], ¶ 12).) Dean thought the other person was a woman, and he said he had "an idea" who she was, but he did not want "to put a wrong name in there" and cause problems for the officers. (Ex. 2DD [ECF 61-2 at 40-42], pp. 3-5; Taylor's Ex. 60 [ECF 115-12] at 3-5.) He described this person as having shoulder-length light brown hair and a medium to heavy build. (Id., p. 8.) He added that the person was wearing a white shirt and tennis shoes "that had grey backs to [them]." (Id.)

On May 17, 1989, Dean entered a plea of guilty to an amended information charging him with aiding and abetting second-degree murder. (Ex. 1M [ECF 57-3], pp. 30-33; Dean's Ex. 22 [ECF 110-2, Bill of Exceptions to Plea Hearing and Sentencing Hearing, State of Nebraska v. James L. Dean, District Court of Gage County, Nebraska].) In consideration of the reduced charge, Dean agreed to give "total cooperation" to the investigation of the Wilson homicide, and to testify truthfully at the trials of others involved in the crime. (Taylor's Ex. 125 [ECF 119-8, James Dean plea agreement, 5/17/89].) Before accepting the guilty plea, Judge Rist engaged in a colloquy with Dean and, among other things, "asked defendant if he had been induced, persuaded or influenced to enter his plea of guilty by reason of any threats made against him or any promises made to him on the part of any person or persons whomsoever, and defendant responded in the negative." (Ex. 1M [ECF 57-3 at 31].) County Attorney Smith "outlined facts he expected to prove in the event cause went to trial and defendant [was] given opportunity to respond thereto." (Id.) The court found that Dean had "voluntarily, knowingly and intelligently entered his plea of guilty to the charge contained in the amended Information." (Id. at 32.)

A transcript of Dean's plea hearing is in the record. (Dean's Ex. 22 [ECF 110-2 at 1-35].) It shows that immediately prior to the court's acceptance of the guilty plea, the following inquiries were made:

(Id. at 28-32.)

On May 18, 1989, Searcey requested from the BPD a photo of Kathy Gonzalez for identification purposes. (DSF ¶ 91 (Ex. 2 [ECF 59-1], ¶ 45); Taylor's Ex. 126 [ECF 119-9, BPD report, 5/18/89, Searcey given mug shot of Gonzalez].)

On May 22, 1989, Searcey witnessed the Miranda rights waiver for Deb Shelden. Because she was not willing to waive her right to an attorney and give a statement without one, no statement was taken. (DSF ¶ 92 (Ex. 2 [ECF 59-1], ¶ 45; Ex. 2EE [ECF 61-3 at 1, Miranda warning form for Shelden dated May 22, 1989]).)

On May 22, 1989, Dean's attorney, Richard Schmeling, filed a motion with the District Court of Gage County requesting that arrangements be made for a psychiatrist or licensed clinical psychologist to provide therapy to Dean while in county jail. (Ex. 1M [ECF 57-3 at 25].) In his supporting affidavit, Mr. Schmeling stated:

(Id. at 26-27.) The motion was granted on June 16, 1989, with William R. Stone, Jr., Ph.D., a licensed clinical psychologist of Gateway Mental Health Clinic in Lincoln, Nebraska, being appointed to conduct the therapy. (Id. at 34-35.) The court's order directed Dr. Stone not to employ hypnosis or hypnotic techniques during the course of therapy. (Id.)

On May 24, 1989, Searcey took another statement from Dean at the GCSO. Dean was Mirandized and the interview was conducted in the presence of Dean's counsel, Richard Schmeling, and DeWitt. Dean proceeded to reveal the same facts as he had previously, but added that he remembered Kathy Gonzalez was present in the apartment that night as well, and she was injured in the apartment.72 Dean stated that he saw Winslow with material around Wilson's neck. Dean stated White had threatened him to keep him from coming forward. He further added that the reason they went to Wilson's apartment was because White and Taylor wanted money. He stated that on the drive to Wilson's apartment building, they discussed robbing somebody. (DSF ¶ 93 (Ex. 2 [ECF 59-1], ¶ 47; Ex. 2FF [ECF 61-3 at 2-11]).) Dean also reported that when he left the apartment, he "went and shut the lights off," adding, "I don't remember you know exactly, but I . . . think I did go shut the lights off because when we come out the lights were off." (Ex. 2FF [ECF 61-3 at 4], p. 3; Taylor's Ex. 61 [ECF 115-13] at 3.) Dean said the group left Wilson's apartment and drove to Marshall's Truck Stop for breakfast, and Tom Winslow and Deb Shelden argued about money along the way. (Id., p. 8.)

On May 24, 1989, Searcey and Lamkin interviewed Deb Shelden in the presence of her attorney, Paul Korslund. After being Mirandized, Shelden proceeded to reveal the same facts as she had previously, but added that she remembered Kathy Gonzalez to be present that night as well. She stated that Gonzalez got a bloody nose, but that Shelden did not see her after that. She further stated that Dean had left and returned to the apartment when Gonzalez was leaving it. Shelden stated she did not know Gonzalez and had forgotten about her until she had a nightmare. She ultimately identified Gonzalez from a photo after asking to see it at the Gage County Jail. She received no information about the person in the photo when she looked at it, yet identified her as Kathy Gonzalez, another person on the scene of the Wilson homicide. (DSF ¶ 94 (Ex. 2 [ECF 59-1], ¶ 48; Ex. 2GG [ECF 61-3 at 12-38, Miranda warning form dated May 24, 1989, Transcript of Shelden's interview dated May 24, 1989]).)

In her statement Deb Shelden said that Kathy Gonzalez's nose was bleeding "a lot, quite a bit" when she came out of the bedroom of Wilson's apartment. (Ex. 2GG [ECF 61-3 at 17],73 p. 5; Taylor's Ex. 127 [ECF 119-10, GCS recorded statement, Debra Shelden, 5/24/89]74 at 5.) When asked why she had not mentioned Gonzalez's presence before, Shelden said, "I didn't remember her at first, but I've been thinking about the case and everything, and I had a nightmare, and I remembered her." (Id., p. 11.) She explained that a few days before the interview, she told the sheriff that she "had decided in [her] mind that there was another person," and she asked Searcey to show her a picture. (Id., p. 12.) She said that she had described the person to Searcey as a "heavy set" woman with "dishwater blond hair" who was wearing blue jeans, a white jacket, and grey topped tennis shoes on the night of the homicide. (Id., pp. 11-13.)

On May 25, 1989, Searcey, Lamkin, and DeWitt traveled to Denver, Colorado, to arrest Kathy Gonzalez pursuant to an arrest warrant issued by the Court. Upon her arrest, Gonzalez stated that she had "been worried about this for 4 years." Gonzalez was Mirandized and gave a short statement while in Denver. (DSF ¶ 95 (Ex. 2 [ECF 59-1], ¶ 49; Ex. 2HH [ECF 61-3 at 39-41, Searcey report dated May 31, 1989]; Ex. 4 [ECF 62-3], ¶ 23; Ex. 5 [ECF 63-1], ¶ 15; Ex. 5B [ECF 63-2 at 2-3, Lamkin report dated May 25, 1989]; Ex. 5C [ECF 63-2 at 4, Miranda Rights Statement signed by Gonzales on May 25, 1989]).) See also Taylor's Ex. 128 [ECF 119-11, Arrest affidavit & warrant for Kathleen Gonzalez, 5/25/89]; Taylor's Ex. 129 [ECF 119-12, GCS report, 5/25/89, Lamkin on Gonzalez arrest].) Also on May 25, 1989, Smith filed a Complaint against Gonzalez charging that she did "aid, abet, procure or cause another to kill Helen Wilson in the perpetration of or attempt to perpetrate any sexual assault in the first degree, kidnapping or burglary." (DSF ¶ 96 (Ex. 1 [ECF 51-1], ¶ 31; Ex. 1S [ECF 58-2, Case file of State v. Gonzalez, originally at Gage County Court Case No. CR 89-383]).)

On May 26, 1989, Gonzalez was transported back to Beatrice by Searcey, Lamkin, and DeWitt where Meints met them at the airport to assist in transporting Gonzalez. Subsequently, Meints, Searcey, and Lamkin took Gonzalez to the hospital for the purpose of obtaining biogenetic samples for testing after she was again Mirandized. Gonzalez was then taken to the Gage County Jail where Meints booked her into jail. (DSF ¶ 97 (Ex. 2 [ECF 59-1], ¶ 50; Ex. 2II [ECF 61-3 at 42, Miranda warning form for Gonzales dated May 26, 1989]; Ex. 4 [ECF 62-3], ¶ 23; Ex. 5 [ECF 63-1], ¶ 16; Ex. 7 [ECF 63-5], ¶ 10; Ex. 7E [ECF 63-6 at 6, Meints Report dated March 26, 1989]).) That afternoon Searcey was informed by a lab technician at the hospital that Gonzalez's blood was type B positive. (Ex. 2HH [ECF 61-3 at 39-40], pp. 1-2; Taylor's Ex. 130 [ECF 119-13, GCS report, 5/26/89, Searcey on Gonzalez arrest].)75

On May 26, 1989, at the request of Gonzalez and DeWitt, Price consulted with Gonzalez.76 She had been arrested in Denver and expressed no recall of her being involved in the incidents and was confused as to why she could not recall it. Prior to talking with Gonzalez, Price advised her that he was representing the State of Nebraska and the Gage County Sheriff's Office and read her a Miranda warning which she signed indicating she understood it. Further, she acknowledged at the end of the interview that she was promised nothing, and was not coerced or threatened in any way. Gonzalez expressed confusion as to why she was believed to have been involved in the Wilson homicide and was seeking help to recall this. She asked Price if he would hypnotize her to help refresh her memory. Price denied the request and indicated to her that there are legal ramifications to hypnotizing witnesses and suspects which could affect the admissibility of her testimony. During the course of the interview, Price confronted her with having another witness who was charged in the crime place her at the scene of the Wilson homicide. Gonzalez continued to deny any involvement, expressed a great deal of frustration, yet remained quite calm throughout the course of the interview. Gonzalez asked Price how she could refresh her memory, and Price encouraged her to relax, take her time, and not try to force memories. Price indicated to Gonzalez that she would remember better when she was relaxed. He also told her that memories could occur in dreams, as this was the most relaxed state she could achieve. Price's overall impression was that Gonzalez did not have any major mental disorder, that she was competent and sane, and that she had the capacity for recall. (DSF ¶ 98 (Ex. 3 [ECF 62-1], ¶¶ 12, 13; Ex. 3H [ECF 62-2 at 22-23, Consultation note concerning Gonzalez]; Ex. 3I [ECF 62-2 at 24-44]; Ex. 3J [ECF 62-2 at 45, Miranda Rights given and signed by Gonzalez dated May 26, 1989]; Ex. 3K [ECF 62-2 at 46, Letter to Smith re: deposition dated August 31, 1989]; Ex. 7 [ECF 63-5], ¶ 10; Ex. 7E [ECF 63-6 at 6]); Taylor's Ex. 134 [ECF 119-17, Report of Dr. Wayne Price, 5/26/89, interrogation of Kathleen Gonzalez].)

Gonzalez told Price that she knew Joseph White and had met Joann Taylor when she was living in Beatrice. (Ex. 3I [ECF 62-2 at 28], p. 5; Taylor's Ex. 133 [ECF 119-16] at 5.) Gonzalez explained that White lived with her for about a week, but she kicked him out of her apartment "because he refused to take a bath." (Id., p. 7.) She said that she did not know Helen Wilson and did not associate with others who lived in the apartment building. (Id., p. 8.) Gonzalez said that she heard about Wilson's death "the next day" while she was at work, and she saw that "cop cars" were still at her apartment building when she got home. (Id., p. 7.) She also said that she was at home during the murder, and she had been doing laundry and watching a movie that evening, but she did not hear anything. (Id., p. 8.) Price asked Gonzalez whether she "ever had any memory problems before," and Gonzalez responded negatively. (Id.) Price asked, "How about something really terribly frightening like something that really had an impact emotionally . . . ?" and again Gonzalez responded negatively, adding, "the worst things that ever happened I can remember." (Id.) Price asked, "Do you think it is a possibility that you might have been there and just have a complete blank?" (Id., p. 9.) Gonzalez replied that if that were possible, she would like to find out. (Id.) She asked Price whether he hypnotized people, and Price responded that he could not do that because "the courts have been up and down on whether it could be [admissible]." (Id.) He added, however, that sometimes traumatic things "[w]ill come back to you in some ways often in dreams in little bits and pieces will come to you like pieces of a jig saw puzzle that don't make a lot of sense and after a few dreams or even a few days enough pieces will come together [and you will] start having some recall." (Id., p. 10.) Gonzalez asked, "What happens if I don't remember?" (Id.) Price responded, "Then it's up to a court to decide. . . ." (Id.) Gonzalez denied being involved, and she said she even remembers the movie she watched on the night of the homicide. (Id., p. 11.)

Price then told Gonzalez that if she were "there and not participating" it would be "a very different situation" than if she were "there participating," and he asked her whether there was "a chance that [Joseph White] would implicate you if he thought he could get off by doing it?" (Id., pp. 11-12.) Gonzalez agreed that White was the sort of person who "would implicate somebody else to get out of something." (Id., p. 12.) She said, "I don't know what to say . . . I thought about this and I realize what kind of situation I'm in and I don't know how to prove anything because I don't know what to say." (Id., p. 14.) Gonzalez said she knew that she could not have hurt Wilson, but when she was arrested she "figured it would be easier to deal with all of this back [in Nebraska]." (Id., pp. 14-15.) She added, "[W]hat they said made sense[,] maybe I blocked it out I don't know." (Id., p. 15.) Price said, "rest for a bit if you're willing and I'm willing to work with you on it you know." (Id.) Gonzalez said, "I want to know." (Id.) The following exchange then occurred:

(Id., p. 15.)

Price told Gonzalez that they would talk from time to time and "see what comes back." (Id., p. 17.) He said, "But the important thing is the odds are at this time it looks like you were in but did in fact block it. With two people pinpointing you in the event of [sic] each other, a good chance. And if you can help you out by remembering it will help you. . . . We don't want you held responsible for anything you didn't do and you know I have no idea what uh [White] or Joann and Winslow are going to say about you." (Id., p. 18.) Gonzalez said, "I don't even know who this Winslow is," and Price responded, "You apparently don't want to." (Id.) He added, "[I]f I had seen what took place I would have blanked it too." (Id., p. 19.) Gonzalez asked whether remembering would "trigger anything," and Price responded that it would give her a "sense of relief." (Id.) Price added, "But we'll work with you, we're not out to railroad you in anyway okay?" (Id.) Gonzalez observed that there must be a lot of evidence against her even though she did not think she was present in Wilson's apartment. (Id., p. 20.)

On May 27, 1989, Lamkin took major case hand and fingerprints from Gonzalez. (DSF ¶ 99 (Ex. 5 [ECF 63-1], ¶ 17; Ex. 5D [ECF 63-2 at 5, Lamkin report dated May 27, 1989]).)

On June 7, 1989, Searcey interviewed Dean at the GCSO after being Mirandized. Also present were his attorney, Richard Schmeling, and DeWitt. Dean repeated many of the same things as previously but added that he remembered a discussion in Winslow's car prior to arriving at Wilson's apartment building. He stated that Wilson's name was mentioned in connection with the idea of robbing somebody for money. (D SF ¶ 100 (Ex. 2 [ECF 59-1], ¶ 51; Ex. 2JJ [ECF 61-3 at 43-45, Transcript of Dean's interview dated June 7, 1989]).) Dean said that he recalled Joann Taylor mentioning the name Wilson while Taylor, Dean, Tom Winslow, Joseph White, and Deb Shelden were driving around in Winslow's car. (Ex. 2JJ [ECF 61-3 at 44], p. 2; Taylor's Ex. 62 [ECF 115-14, GCS recorded statement, James Dean, 6/7/89] at 2.) Earlier, the group had been talking about robbing someone. (Id.) He said that the group went to Wilson's apartment building, and the lights were off as they entered. (Id.) According to Dean, a person wearing a white shirt suddenly appeared in the hall in front of them. (Id.) This person was Kathy Gonzalez, and Dean said that Gonzalez joined in as the rest of the group entered Wilson's apartment. (Id., pp. 2-3.)

On June 13, 1989, Dr. Reena Roy mailed Searcey a lab report which included an analysis of Gonzalez's blood. (Taylor's Ex. 141 [ECF 119-24, NSP lab report, 6/13/89, serology report on Kathleen Gonzalez].) It appears from the report that one of the genetic markers in Gonzalez's blood (Gc 2-1) differed from one of the genetic markers that Roy identified in the type B blood that was found at the scene of Wilson's homicide (Gc 1). (Compare Taylor's Ex. 141 [ECF 119-24] with Taylor's Ex. 90 [ECF 116-9].) However, Dr. Roy testified on September 8, 1989, in a deposition taken in connection with Joseph White's trial, that Kathy Gonzalez "cannot be excluded as the donor of Blood Group B in many of the bloodstains that I found." (Taylor's Ex. 42 [ECF 115-2, Excerpts from White trial deposition of Dr. Reena Roy, re blood evidence] at 8.) While noting that "her Gc-2-1 did not match with the Gc-1s that I found," Dr. Roy explained that if "there are two people's blood mixed, she certainly cannot be excluded, because ESD, PGM, ADA, AK, Gc, and Tf, none of those can be excluded." (Id.) At White's trial, it was stipulated that blood found at the crime scene was "similar to that of Kathy Gonzalez." (Taylor's Ex. 41 [ECF 115-1, Joseph White trial stipulation, re blood & semen evidence] at 3.)

On June 16, 1989, Price had a second interview with Deb Shelden which was again requested by her attorney. A question had come up that her recall seemed to be somewhat fragmented. In other words, she did not recall everything all at once or in a logical pattern. Her attorney wanted confirmation as to whether or not this reflected an illness or something else. He also wanted to know why she was recalling in a fragmented fashion. The purpose of the interview was to determine the pattern of recall. Shelden described how she was remembering events as she would see things occurring, but would not hear what was happening. In Price's opinion, that is not particularly unusual when one is traumatized. It did not affect the veracity or validity of her recall. Price had indicated to Shelden that if she could relax she would have better recall. Price told her that she might recall more in dreams. This would not be unusual because dreaming is a more relaxed state; however, an individual's pattern of recall is highly variable. Price's conclusions were sent in a report/letter to Shelden's attorney on that same date. (DSF ¶¶ 101, 102 (Ex. 3 [ECF 62-1], ¶ 9; Ex. 3L [ECF 62-2 at 47-68]).)

This meeting and the meeting on April 24, 1989, were the only contacts Price had with Deb Shelden. Based upon Price's consultation with Shelden, her history, the manner in which she was recalling memories of the event, the fact that she passed a polygraph, and his training and experience as a police psychologist, it was Price's opinion that Shelden was accurately recalling memories rather than making up a false version of the events, and that she was present during the Wilson homicide. (DSF ¶ 103 (Ex. 3 [ECF 62-1], ¶¶ 9, 17; Ex. 3D [ECF 62-2 at 12-15, Consultation note concerning Shelden]; Ex. 3L77 [ECF 62-2 at 62-65]).)

On June 16, 1989, pursuant to an agreement between the County Attorney's Office and Gonzalez's attorney, Gonzalez was given a polygraph examination by Paul Jacobson. On June 19, 1989, Paul Jacobson issued a polygraph report that found deception. (DSF ¶ 104 (Ex. 1 [ECF 51-1], ¶ 32; Ex 1T [ECF 58-3 at 1-7, Polygraph examination for Gonzalez dated June 19, 1989]).) Jacobson stated in his report:

(Ex. 1T [ECF 58-3 at 6], p. 6; Taylor's Ex. 135 [ECF 119-18, Polygraph report for Kathleen Gonzalez, 6/16/89] at 6.)

On June 23, 1989, Lamkin interviewed Dean. After Dean was Mirandized, his statement was taken in the presence of his counsel, Richard Schmeling. (DSF ¶ 105 (Ex. 5 [ECF 63-1], ¶ 18; Ex. 5E [ECF 63-2 at 6-13, Dean interview transcript dated June 23, 1989]).) Dean said that he recalled that when he, Tom Winslow, Joann Taylor, Joseph White, and Deb Shelden were driving in Tom Winslow's car on the night of the homicide, Wilson's name came up during the course of a conversation. (Ex. 5E [ECF 63-2 at 7], p. 2; Taylor's Ex. 63 [ECF 115-15, GCS recorded statement, James Dean, 6/23/89] at 2.) He also said he wanted "to make sure we specify that . . . the lights [in the hallway of Wilson's apartment building] were off when we entered the door." (Id., p. 5.) He described leaving Wilson's apartment as she was being assaulted and returning in time to overhear Kathy Gonzalez, who was in Wilson's bathroom, say that she had been injured.78 (Id.)

On June 26, 1989, DeWitt was a witness for the State in a hearing held on Taylor's Motion to Suppress. (DSF ¶ 106 (Ex. 4 [ECF 62-3], ¶ 26; See Ex. 1D [ECF 51-3, 51-4, 51-5]).)

On June 28, 1989, Price drafted and sent a letter to Smith enclosing a copy of the notes relating to Price's consultation with James Dean. Price specifically noted that no psychological testing was done with Dean, and that no relaxation or hypnotic techniques nor hypnosis were used on Dean at any time that Price had contact with Dean. Price also noted that he had conveyed to Dean the knowledge that hypnosis should not and could not be used on him due to its questionable effect on the capacity of one to be used as a witness in a criminal case to which Dean indicated he understood. (DSF ¶ 107 (Ex. 3 [ECF 62-1], ¶ 11, Ex. 3G [ECF 62-2 at 21]; Ex. 3H [ECF 62-2 at 22-23]).)

On July 16, 1989, Lamkin transported James Dean to the GCSO for the purpose of taking his statement. Dean was Mirandized and his statement was taken in the presence of Dean's counsel, Richard Schmeling. Dean provided more new information. Dean stated that prior to the Wilson homicide, Taylor, White, Winslow, and Cliff Shelden, while at Kathy Bartek's residence, devised a plan to rob someone because they needed money. Dean was not present during the conversation at first, but went in later. The plan was to rob Wilson that night, and they were discussing everyone's jobs for the robbery. At that time, Dean learned that Kathy Gonzalez would be there. During the Wilson homicide, Dean stated he saw Gonzalez there, heard something break in the bedroom, and then Gonzalez was injured. She washed up in the bathroom. (DSF ¶ 108 (Ex. 5 [ECF 63-1], ¶ 19; Ex. 5F [ECF 63-2 at 14-38, Dean interview transcript dated July 16, 1989]).)

In his July 16 statement, Dean said that he, Joann Taylor, Joseph White, Tom Winslow, and Cliff Shelden had a conversation about a week before the homicide, and the group talked about stealing money from an "old lady." (Ex. 5F [ECF 63-2 at 15], p. 2; Taylor's Ex. 64 [ECF 116-1, GCS recorded statement, James Dean, 7/16/89] at 2.) On the night of the homicide, Joann Taylor told Dean and Tom Winslow that nobody would be home at Wilson's house, and that they should "hit it." (Id., p. 6.) Taylor, Winslow, Dean, White, and Deb Shelden then left in Winslow's car, and the group eventually made its way to Wilson's apartment. (Id., pp. 9-10.) On the way to the apartment, Dean learned that Kathy Gonzalez would also participate in the crime. (Id., pp. 10-11.) As in his previous statement, Dean described leaving Wilson's apartment and returning to hear Kathy Gonzalez stating that she had been hurt. (Id., pp. 16-17.) He added, however, that he heard something break in the bedroom before he left the apartment, and at one point he saw Gonzalez in the bathroom holding a bloody rag to her chin. (Id., pp. 17, 23.) When he was asked whether he knew where Gonzalez was when she became injured, he said that he did not want to speculate, adding, "I don't want to do anything that's gonna harm this testimony." (Id., p. 23.) Dean also said that he knew "for a fact" that White "tore a five dollar bill in half," though he only "heard it rip." (Id., p. 21.) According to Dean, White had "a stack of money in his hand" that was two or three inches thick. (Id.)

On July 17, 1989, Dean's deposition was taken at the Gage County Jail. Present were Smith, Richard Schmeling (counsel for Dean), Toney Redman (counsel for White), John Stevens Berry (counsel for Winslow), and Lyle Koenig (counsel for Taylor). (DSF ¶ 109 (Ex. 4 [ECF 62-3], ¶ 26).) Dean's attorney, Richard Schmeling, states that "[d]uring the deposition, Dean came across as unorganized and not entirely coherent." (Dean's Ex. 17 [ECF 109-2], ¶ 57.) He says that "[a]fter the deposition concluded, County Attorney Smith told me that Dean had better come across as a more believable witness at White's upcoming trial." (Id.) Schmeling "believe[s] that Dean was essentially so brainwashed at that point that he was willing to say anything that might [sic] prosecutors might have suggested." (Id.)

On July 18, 1989, Searcey interviewed Cliff Shelden again. He stated that his wife, Deb Shelden, had recently told him that she was present in Wilson's apartment but had not said anything because she had been threatened to keep quiet. He stated that he had not known that anyone was planning anything.79 (DSF ¶ 110 (Ex. 2 [ECF 59-1], ¶ 52; Ex. 2KK [ECF 61-3 at 46-53]).) Cliff Shelden said that his wife, Deb, had never discussed her involvement in the Wilson homicide until she wrote him a letter sometime "within the last several months" stating that "according to Tom . . . Winslow's statement. . . she was there," and that Deb "was forced and basically threatened" to go to Wilson's apartment. (Id. at 6-7.) (Ex. 2KK [ECF 61-3 at 51-52], pp. 6-7.) Cliff Shelden told Searcey that he had never heard of Kathy Gonzalez. (Id., p. 4.)

On August 3, 1989, Judge William B. Rist denied Taylor's motion to suppress the statements she gave to Lt. Calloway on March 15, 1989, and to Searcey and Stevens on March 16 and 17, 1989. In each instance it was determined that "no force, fear, oppression, or coercion were used against defendant with respect to said statement, nor any promise made directly or indirectly by any person in authority that such statement would result in any advantage or benefit to defendant." (Ex. 1D [ECF 51-4 at 62-67].)

On August 10, 1989, Searcey was present when Taylor's attorney, Lyle Koenig, interviewed Deb Shelden. Shelden repeated many of the same facts as in previous statements. She stated that the first time she had talked about the night of Wilson's homicide was to Searcey. She stated that she had read only part of the letter that Taylor sent to her husband, Cliff Shelden. She stated that she saw Dean on April 14, 1989, and told him that Lamkin and Searcey wanted to talk to him. (DSF ¶ 111 (Ex. 2 [ECF 59-1], ¶ 53; Ex. 2LL [ECF 61-4 at 1-32, Transcript of Deb Shelden's interview dated August 10, 1989]).) Deb Shelden said that she, Winslow, Taylor, White, and Dean drove around Wilson's apartment building several times until they saw the lights at the apartment building flash on and off. (Ex. 2LL [ECF 61-4 at 8-9], pp. 8-9.) She later came to believe that Kathy Gonzalez was the one flashing the lights. (Id., p. 9.) She described the group's attempt to rob Wilson, though she claimed that she had "blocked" out some of the incident. (E.g., id., p. 14.) She said that during a struggle, Wilson kicked Kathy Gonzalez, Kathy's nose started bleeding, and Kathy ran out of the apartment. (Id., p. 15.) Deb Shelden also said that she tried to pull White off of Wilson, but White knocked her back, causing her to hit her head and lose consciousness. (Id., p. 16.) She awoke to see White and Winslow sexually assaulting Wilson, and Taylor was holding a pillow over Wilson's head. (Id., pp. 16-21.)

On or about August 21, 1989, Searcey received a letter from Dean's counsel, Richard Schmeling, stating that Dean had remembered seeing Cliff Shelden standing in the doorway somewhere. Schmeling indicated that he had told DeWitt, who had elected not to take a statement.80 During Searcey's independent investigation, he had confirmed that Cliff Shelden was, in fact, in the hospital the night of the homicide so that he could not have been there. Further, Dean stated that he recognized Cliff Shelden because he has red hair; however, Winslow also has red hair.81 No statement was necessary in this instance [in Searcey's opinion]. (DSF ¶ 112 (Ex. 2 [ECF 59-1], ¶ 54; Ex. 2MM [ECF 61-4 at 33]).)

On August 23, 1989, Searcey assisted DeWitt in transporting Taylor to the courthouse for a hearing. During transport, DeWitt accidentally pulled some of Taylor's hair and immediately apologized. (DSF ¶ 113 (Ex. 2 [ECF 59-1], ¶ 55; Ex. 2NN [ECF 61-4 at 34, Searcey report dated August 23, 1989]; Ex. 4 [ECF 62-4], ¶ 27; Ex. 4H [ECF 62-4 at 17, DeWitt report dated August 23, 1989]).)

On August 25, 1989, Taylor received a 6-hour psychiatric evaluation from William S. Logan, M.D., at the request of the State. Dr. Logan states in his report that Taylor provided the following account of the crime:

(Taylor's Ex. 106 [ECF 118-2, Joann Taylor evaluation, Dr. Logan, 8/25/89] at 12-16.)

On August 30, 1989, Searcey interviewed Taylor at the GCSO in the presence of Richard Smith, Lyle Koenig, Joe Murray (co-counsel for Taylor), Jerry Shelton (deputy county attorney), and Kent Harlan. Harlan videotaped the statement. Taylor repeated many of the same things that she had stated previously. She added that on the night of Wilson's homicide they were all "partying" and "getting high." She claimed that she was threatened into going with [White] and Winslow to Dean's house. She admitted that she knocked on Wilson's door and asked to use the restroom and that Wilson said "hi" to Deb Shelden. She claimed that she was "so high" when they entered Wilson's apartment. She claimed that she, Shelden, and Dean just watched White and Winslow attack Wilson. She admitted to holding a pillow over Wilson's face when Winslow and White sexually assaulted Wilson. She denied having any sexual activity with Wilson. She admitted having a conversation about going to Wilson's place for money. She admitted that she, White, and Winslow hunted for money in Wilson's apartment with Dean giving them ideas for places to look. She remembered that all but Gonzalez left together because Gonzalez was in the bathroom at the time and said she would catch up later. She stated that they all left in Winslow's car. She admitted that she did talk to Lisa Podendorf the next day and told Podendorf that she and White were responsible for Wilson's death. She stated that Wilson's face was not covered when she left Wilson's apartment. (DSF ¶ 114 (Ex. 2 [ECF 59-1], ¶ 56; Ex. 2OO [ECF 61-4 at 35-57, Transcript of Taylor's interview dated August 30, 1989]).)

During the August 30 interview, Taylor said that on February 5, 1985, she was "getting high partying" with Joseph White and Tom Winslow, adding that they were "smoking pot which was laced with . . . angel dust . . . snorting cocaine, popping yellow jackets, popping purple monster, and drinking beer heavily on top of all of it." (Ex. 2OO [ECF 61-4 at 36-37], pp. 2-3; Taylor's Ex. 82 [ECF 116-3, GCS recorded statement, Joann Taylor, 8/30/89] at 2-3.) She and White then began to argue about whether to get more drugs, and White threatened to hurt Taylor or her daughter if she did not come along with him. (Id., p. 3.) White, Taylor, and Winslow then picked up James Dean and Deb Shelden, and eventually the group ended up at Wilson's apartment. (Id., p. 4-5.) According to Taylor, White began to argue with Wilson, slapped her, and pushed her toward her bedroom. (Id., p. 6.) Deb Shelden tried to help Wilson, but White shoved her, and Deb hit her head. (Id., p. 7.) Taylor said that she too tried to help Wilson, but White "belted" her and dislocated her jaw. (Id.) She added that her jaw had been dislocated before, so she "just popped it back in." (Id.) She described watching White and Winslow rape Wilson, trying again to intervene, and having flashbacks of her own rape. (Id., p. 8.) Taylor said that at some point, Kathy Gonzalez came into Wilson's apartment and "was walking around kind of just checking things out." (Id., p. 9.) Taylor added that she believed that Gonzalez had blood on her and may have been hit. (Id., pp. 9-10.) Taylor denied putting a pillow over Wilson's face or licking her body. (Id., p. 11.)

During this interview, Taylor mumbled to herself, "Come on Jo you can do it you've got to," when trying to describe details about the apartment. (Id., p. 11.) When Smith confronted her with James Dean's and Deb Shelden's statements that Taylor participated in the assault upon Wilson, Taylor cried and said, "I know what I remember. I can't force myself to do any better." (Id.) She then said, "Fuck it. You can't keep bringing this back, I can't take it your [sic] torturing me. . . . And I will not go through this torture. My mental health is at stake for it." (Id., p. 12.) Smith reminded Taylor that her plea agreement required her to testify truthfully, and he indicated that he would "ask for a polygraph." (Id.) Taylor replied that she was "doing the fuckin [sic] best I can," and said, "We'll go through with this but in the fuckin [sic] morning you'll have a fuckin [sic] corpse in your jail." (Id.)

Taylor was asked about statements she made to Charlotte Bishop (Mindenhall/Crumb) and Lisa Podendorf shortly after the murder:

(Id., p. 15.)

After a break in the interview, Taylor said, "I think it might be better if you start asking me some questions that might help bring it back better." (Id., p. 15.) Searcey asked a few questions to which Taylor made no verbal response. She then admitted it "was possible" that she held a pillow while she was "up by [Wilson's] head" but she did not remember "having had a hold of a pillow." (Id., p. 16.) When Taylor denied touching Wilson, this exchange followed:

(Id., pp. 16-18.)

When Taylor did not respond, Smith said, "Before we go on, I presume the council's [sic] advised her that I have to make a recommendation to a certain number of years." (Id., p. 18.) Taylor's counsel responded that "[w]e've advised her now she said that she wants to say something." (Id.) Taylor said that she was scared, she cried, and she said, "They'll get to [my daughter]. I know they will." (Id.) Taylor then agreed with Searcey that she did hold a pillow over Wilson's face. (Id., pp. 18-19.) She continued to deny having any "physical activity" with Wilson, exclaimed, "I'm not gay," and threatened to give James Dean a "nice kicking" after Smith indicated that Dean was the person who accused her of having contact with Wilson. (Id., p. 19.) Taylor began to cry, and another break was taken because she was "having a little problem with composure." (Id., p. 20.) After the break, Taylor admitted that she discussed a plan to rob Wilson with the "other people involved," watched the lights go on and off in Wilson's building while the group was driving around, searched for money in Wilson's apartment, and told Lisa Podendorf on the following morning that she and White were responsible for Wilson's death. (Id., pp. 20-22.)

On August 30, 1989, a woman called the GCSO and indicated that her husband, Ladd Wilhelm, might have information pertinent to the Wilson homicide investigation. DeWitt sent Lamkin to the Diagnostics and Evaluation Center within the Nebraska Department of Corrections to interview him. Afterwards, Lamkin indicated that the statements were too inconsistent to trust and stated he asked Wilhelm to submit to a polygraph examination. No further action was taken with respect to Wilhelm. (DSF ¶ 115 (Ex. 4 [ECF 62-3], ¶ 28; Ex. 5 [ECF 63-1], ¶ 20; Ex. 5G [ECF 63-2 at 39-41, Lamkin report dated August 30, 1989]).)

On August 31, 1989, Price sent a letter to Smith informing him of Price's availability for a deposition. Price noted that since he would be discussing Taylor, Shelden, and Dean, he felt it was imperative that counsel for these individuals be present at the deposition to protect their legal interests and to satisfy Price's ethical standards. (DSF ¶ 116 (Ex. 3 [ECF 62-1], ¶ 14; Ex. 3K [ECF 62-2 at 46]).)

On September 1, 1989, Taylor was again seen by Dr. Logan, who reported that Taylor now admitted placing a pillow over Helen Wilson's face during the sexual assault, but that she denied suffocating her. The report states:

(Taylor's Ex. 106 [ECF 118-2] at 16-17.)

Based on his interviews with Taylor and his review of mental health records and police investigative materials, Dr. Logan concluded that Taylor was competent to stand trial and that she was sane at the time of the offense. In his written report, which was signed on September 14, 1989, Dr. Logan stated:

(Id. at 23-24.)

On September 1, 1989, an amended information was filed against Joann Taylor, charging that she "cause[d] the death of Helen Wilson intentionally but without premeditation." (Ex. 1D [ECF 51-5 at 26].) At a plea hearing conducted that same date, "William Logan, M.D., of the Menninger Clinic, Topeka, Kansas, testified regarding Ada Joann Taylor's competency to proceed with hearing" and the court made a finding that Taylor was competent. (Id. at 44.) After advisements from the court, Taylor entered a plea of guilty to the amended information. (Id. at 45.) "William Logan, M.D., was again called to testify regarding the defendant's competency to enter a plea and her sanity at the time of the offense." (Id.) The court then found that "the defendant is competent to enter a plea and was sane at the time of the offense. The court thereupon asked defendant if she had been persuaded or influenced to enter her plea of guilty by reason of any threats made against her or any promises made to her on the part of any person or persons whomsoever, and defendant responded in the negative." (Id. at 45-46.) The plea bargain was discussed and "[t]he court thereupon asked defendant if she understood that any plea bargain was not in any way binding upon the court and the defendant responded in the affirmative." (Id. at 46.) "The County Attorney then outlined facts he expected to prove in the event [the] cause went to trial and defendant [was] given opportunity to respond thereto. Thereupon defendant's plea of guilty to the charge contained in the amended information . . . [was] taken, received, and entered by the court[.]" (Id.) Judge Rist found that Taylor "voluntarily, knowingly and intelligently entered her plea of guilty to the charge contained in the amended Information." (Id.)

Taylor has since testified that she knew at the time she entered into the plea agreement that she was not involved in Helen Wilson's murder. (Taylor's Ex. 140 [ECF 119-23, Deposition of Joann Taylor, 11/3/10] at 10.) Taylor was then asked why she was willing to sign the plea agreement and plead guilty to a crime she did not commit, to which she replied, "Because I had been threatened with death row." (Id.) She said that "[t]he officers, as well as my lawyer, reminded me on a very regular basis that I would be sent to death row . . . [i]f I did not cooperate with them in all areas." (Id.) She thought that going to trial would be the same as being sent to death row "[b]ecause I felt with everything that the law enforcement had told me, as well as my lawyer, that there was no hope for me." (Id.)

On September 12, 1989, after Dean was Mirandized, his statement was taken by DeWitt in the presence of his attorney, Richard Schmeling, and County Attorney Smith. Dean added that before the homicide, he had talked about robbing Wilson with White, Winslow, Taylor, Darren Munstermann, and Cliff Shelden and that White and Winslow had talked about having sex with an old lady. He stated that he had not mentioned these facts before because he did not think it was important since Munstermann and Cliff Shelden were not there. He stated that Gonzalez knew what was going to happen and that she may have been at the apartment when they arrived. (DSF ¶ 117 (Ex. 4 [ECF 62-3], ¶ 29; Ex. 4I [ECF 62-4 at 18, DeWitt report dated September 13, 1989]); Dean's Ex. 20 [ECF 109-4, Gage County Sheriff's Office Supplementary Report dated September 13, 1989, regarding statement of James Dean of September 12, 1989].)

On September 13, 1989, DeWitt took Cliff Shelden's statement in the presence of Smith. Cliff Shelden reported that he was at a party at Dean's apartment that he shared with Kathy Bartek a week or less before the Wilson homicide. At the party, Taylor talked to several people in the bathroom about robbing someone. He did not know Gonzalez. When Cliff Shelden was at the Nebraska Department of Corrections Diagnostics and Evaluation Center, he spoke to Winslow. Winslow stated that the robbery was planned because Taylor and White needed money to leave town. Winslow told Cliff Shelden that they had robbed an old lady and that at the "planning party" Taylor had asked him to speak to her alone, but he refused. (DSF ¶ 118 (Ex. 4 [ECF 62-3], ¶ 30; Ex. 4J [ECF 62-4 at 19-20, DeWitt report dated September 13, 1989]); Taylor's Ex. 137 [ECF 119-20, GCS report, 9/13/89, DeWitt interview with C. Shelden].)

On September 23, 1989, DeWitt took a statement from Darren Munstermann in the presence of Smith. Munstermann confirmed many details provided by other witnesses. Those details included that he and some of the others would discuss robbing people, but he could not confirm any victim names. He stated that Dean and Taylor's version of the homicide was plausible. (DSF ¶ 119 (Ex. 4 [ECF 62-3], ¶ 31; Ex. 4K [ECF 62-4 at 21, DeWitt report dated October 2, 1989]).) According to DeWitt's report, "Darren stated that they had talked about several and many things and that most generally they would talk about robbery. No names were mentioned that he can remember. . . . Munstermann states it could have happened the way James Dean and JoAnne [sic] Taylor said, however he doesn't remember. Darren had stated that he didn't remember anything for sure. . . ." (Ex. 4K [ECF 62-4 at 21].) DeWitt also reported that "James Dean and Darren Munstermann confronted each other in my office around eight o'clock in the evening of the 23rd of September, talking in reference of the Helen Wilson homicide" and "[a]t approximately 8:12 in the evening on September 23, 1989 JoAnne [sic] Taylor and Darren Munstermann confronted each other in my office with Richard Smith and myself talking about several things about the Helen Wilson homicide." (Id.)

On September 28, 1989, a deposition of Taylor was taken at the Gage County Jail. Present were Lyle Koenig (counsel for Taylor), Toney Redman (counsel for White), John Stevens Berry (counsel for Winslow), and Smith. (DSF ¶ 120 (Ex. 4 [ECF 62-3], ¶ 32).) During the deposition Mr. Redman asked Taylor, "What else have they told you that helped you remember the case?" (Taylor's Ex. 115 [ECF 118-11, Deposition of Joann Taylor, 9/28/89] at 5.) Taylor's response, and the follow-up questions and answers, were as follows:

(Id. at 5-6.)

On September 28, 1989, Price had his deposition taken by Toney Redman (counsel for White) and Smith. John Stevens Berry (counsel for Winslow) was also present. Price explained in the deposition that he did not use either relaxation or hypnosis with any of the criminal defendants and that he did nothing to suggest a version of the homicide for any of the criminal defendants to accept as their own.82 Through his training and experience, Price is aware that extreme trauma and violence, such as that in the Wilson homicide, cause some persons not able to cope with it to repress and block out memories. (DSF ¶ 121 (Ex. 3 [ECF 62-1], ¶ 15; Ex. 3L [ECF 62-2 at 47-68]).) Price noted that he performed psychological services for Joann Taylor in the past, that "she had been a severe borderline personality disorder,"83 that he thought Taylor had improved, and that he was frustrated and angry "as a therapist" to see his work go "down the tube." (Ex. 3L [ECF 62-2 at 52-53], pp. 22-23.) He also said that before he interviewed Taylor, he "was in hopes . . . that she had not lost reality." (Id., pp. 30-31.) Price said that he, or someone else in his clinic, had also worked with Deb Shelden, Tom Winslow, and James Dean prior to the Wilson homicide. (Id., pp. 50-51.) He said he believed Deb Shelden was "intellectually slower" than Joann Taylor and was "very desirous of being cooperative" with the investigators. (Id., pp. 61-62.)

On October 3 or 4, 1989, DeWitt took a supplemental statement of Cliff Shelden in the presence of Smith. Cliff Shelden stated that he remembered Winslow telling him that Gonzalez was supposed to be a lookout for the Wilson homicide and give a signal if necessary. (DSF ¶ 122 (Ex. 4 [ECF 62-3], ¶ 33; Ex. 4L [ECF 62-4 at 22, DeWitt report dated October 24, 1989]); Taylor's Ex. 138 [ECF 119-21, GCS report, 10/24/89, DeWitt interview with C. Shelden].)

On October 5, 1989, Gonzalez entered into a plea agreement which provided, among other things, that "[t]he State has agreed to file an amended Information charging aiding and abetting for the Second Degree Murder of Helen L. Wilson. Defendant will plead nolo contendere to said amended Information. . . . The defendant agrees to testify truthfully to the best of her recollection in any and all cases and give total cooperation to the State of Nebraska regarding the homicide of Helen L. Wilson. . . . The State will recommend the minimum sentence of 10 years for the defendant if she complies with all of the above." (Taylor's Ex. 53 [ECF 115-9, Gonzalez plea agreement, 10/5/89].) The amended information was filed on October 5, 1989, and a plea of nolo contendere was tendered on behalf of Gonzalez. (Ex. 1 S [ECF 58-2 at 43-50].) Gonzalez "was interrogated as to her understanding of the nature and significance of the charge made against her and was asked whether or not the plea had been tendered by reason of any threats made against the defendant or any promises made to the defendant. Defendant answered in the negative and advised the court that the plea was tendered voluntarily." (Id. at 49.) "The County Attorney then outlined facts he expected to prove in the event cause went to trial and defendant [was] given opportunity to respond thereto." (Id. at 50.) Judge Rist accepted the plea and found that Gonzalez "voluntarily, knowingly and intelligently entered her plea of Nolo Contendere to the charge contained in the second amended Information." (Id.)

On October 6, 1989, pursuant to an agreement between the County Attorney's Office and White's attorneys, Paul Jacobson administered a polygraph examination to Joseph White. That same date he issued a polygraph report indicating deception. (DSF ¶ 123 (Ex. 1 [ECF 51-1], ¶ 33; Ex 1U [ECF 58-3 at 8-15, Polygraph examination for White dated October 6, 1989]).)

On November 9, 1989, Joseph White was found guilty of first-degree murder. (Ex. 1E [ECF 54-2 at 56-57].)

On December 8, 1989, Tom Winslow withdrew his previous plea of not guilty and pleaded no contest to an amended information charging that he did "aid, abet, procure or cause another to cause the death of Helen Wilson intentionally, but without premeditation." (Ex. 1F [ECF 56-1 at 56-62].) After waiving the right to advance notice of the amended information and a preliminary hearing, Winslow was arraigned and his plea was accepted:

(Id. at 60-62.)

On February 16, 1990, White was sentenced to life imprisonment. (Ex. 1E [ECF 54-3 at 9-22].) Judge Rist determined that the death penalty was not appropriate because, among other reasons, Taylor "in all probability was the party who directly caused the suffocation" and "the death appears to have occurred at some point" while Winslow was sexually assaulting the victim. (Id. at 21.)

The statements from witnesses and suspects were contradictory, incomplete and sometimes deceitful. Since the passage of time was great from the time of the murder to the revitalized investigation by the GCSO, it was not surprising to the defendants that the suspects would have memory issues or that their versions would not be completely consistent. Once White, Winslow, Taylor, Gonzales, and Dean were placed under arrest, the decision whether to prosecute them was a matter left to the judgment of the County Attorney. The remaining individual defendants are certain that if there were not probable cause to arrest the plaintiffs in these matters, the Gage County Attorney would have never filed criminal charges against them and a judge would not have ordered them to be held in custody. Based upon DeWitt's, Searcey's, Price's, and Lamkin's training and experience as law enforcement officers, they are aware that suspects will change their stories or remember more as the investigation progresses. Further, they were aware that Dean, White, and Gonzalez had failed polygraph tests, while Debra Shelden had passed. Based upon the failed polygraphs, the statements from the witnesses and criminal defendants, the descriptions by Debra Shelden and James Dean of the scene of the crime, the fact that arrest warrants were issued by the court for all six of the criminal defendants, they all believed there was sufficient probable cause to arrest them. Following the plaintiffs' arrests, the GCSO continued the investigation. They focused on locating persons with knowledge of the Wilson homicide and finding the truth. They continued to follow up leads, interview witnesses, and gather forensic evidence. (DSF ¶¶ 124, 125, 126 (Ex. 2 [ECF 59-1]; Ex. 3 [ECF 62-1]; Ex. 4 [ECF 62-3]; Ex. 5 [ECF 63-1]).)84

At all times from the initial report to the County Attorney's Office in its coroner capacity of the death of Helen Wilson, through and including all investigative activities by all law enforcement agencies, Smith would from time to time determine whether or not sufficient evidence had been gathered to support the filing of a criminal complaint against any individual. It was not until the investigative activities of law enforcement officers had uncovered sufficient evidence to justify filing a complaint by the County Attorney's Office that the Gage County Attorney's Office determined to file charges. (DSF ¶ 127 (Ex. 1 [ECF 51-1].)85

The record establishes that Paul Jacobson, the person who administered all of the polygraphs, was independent of the defendants and law enforcement more generally. Jacobson, whose office was in Lincoln, Nebraska, was a licensed private investigator and a licensed examiner. (E.g., Ex. 1R [ECF 58-1] at 17.)

Ultimately, five of the six criminal defendants entered into plea agreements and pleaded to various criminal charges before the Honorable Judge William B. Rist. White was tried to a jury in Jefferson County. (DSF ¶ 127 (Ex. 1 [ECF 51-1].) Shelden, Taylor, Dean, and Gonzalez testified against White in that trial. (Id.; Ex. 1E [ECF 55-2] at 4-14.)86 On the evidence presented, the jury found White guilty beyond a reasonable doubt of the crime of felony murder. (DSF ¶ 127 (Ex. 1 [ECF 51-1]).)

On January 26, 1990, Deb Shelden, Kathy Gonzalez, and James Dean each received 10-year sentences. (Ex. 1L [ECF 57-2 at 42-44]; Ex. 1S [ECF 58-2 at 69-71]; Ex. 1M [ECF 57-4 at 7-9].) Shelden and Gonzalez do not appear to have filed appeals. Dean did appeal his conviction and sentence, both of which were affirmed by the Nebraska Supreme Court in a decision issued on January 19, 1991. (Ex. 1M [ECF 57-4 at 25-46].) On January 29, 1990, Tom Winslow was sentenced to a term of 50 years' imprisonment. (Ex. 1F [ECF 56-1 at 72-74].) It appears that Winslow's conviction and sentence were affirmed without opinion by the Nebraska Supreme Court on January 14, 1991. (Ex. 1F [ECF 56-2 at 7-8].) On January 30, 1990, Joann Taylor was sentenced to a term of 40 years' imprisonment. (Ex. 1D [ECF 51-5 at 60-62].) Taylor does not appear to have filed an appeal.

III. Discussion

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). In ruling on a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of all inferences that may be reasonably drawn from the evidence. See Dancy v. Hyster Co., 127 F.3d 649, 652-53 (8th Cir.1997). It is not the court's function to weigh evidence in the summary judgment record to determine the truth of any factual issue; the court merely determines whether there is evidence creating a genuine issue for trial. See Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir.1999).

The moving party bears the burden of showing there are no genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, "a party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)) (internal marks omitted).

A. Qualified Immunity

"Qualified immunity is `an immunity from suit rather than a mere defense to liability' and `is effectively lost if a case is erroneously permitted to go to trial.'" Mathers v. Wright, 636 F.3d 396, 399 (8th Cir.2011) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)) (emphasis in original). "The inquiry is one of law, not fact, and is to be decided at the earliest possible stage of the litigation." Id. (citing Bridgewater v. Caples, 23 F.3d 1447, 1449 (8th Cir.1994)).

"Qualified immunity shields government officials from liability for civil damages and the burdens of litigation `insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" McKenney v. Harrison, 635 F.3d 354, 358 (8th Cir.2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "A right is clearly established when `the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Mathers, 636 F.3d at 399 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).

"In determining whether the legal right at issue is clearly established, this circuit applies a flexible standard, requiring some, but not precise factual correspondence with precedent, and demanding that officials apply general, well-developed legal principles." Coates v. Powell, 639 F.3d 471, 476 (8th Cir.2011) (quoting J.H.H. v. O'Hara, 878 F.2d 240, 243 (8th Cir.1989)). "This is a `fact-intensive inquiry and must be undertaken in light of the specific context of the case, not as a broad general proposition.'" Id. (quoting Samuelson v. City of New Ulm, 455 F.3d 871, 875 (8th Cir.2006)).

Taylor, Gonzalez, and Winslow claim that the defendants violated their "rights to due process of law as secured by the Fifth and Fourteenth Amendments. Specifically, Winslow's and Gonzalez's no contest pleas to aiding and abetting second-degree murder, and Taylor's guilty plea to second-degree murder, were involuntary and the product of the unlawful coercive conduct of the named Gage County employees and officials." (Filing 103 at 72.) Although Dean does not argue the point, he has generally alleged in his complaint that "Defendants' actions deprived Plaintiff of his liberty without due process of law in violation of the Fifth and Fourteenth Amendments to the Federal Constitution." (Filing 1, ¶ 11.) It has long been established that a conviction resulting from a coerced plea is inconsistent with due process. See Bayless v. United States, 150 F.2d 236, 238 (8th Cir.1945); Waley v. Johnston, 316 U.S. 101, 104, 62 S.Ct. 964, 86 L.Ed. 1302 (1942) (per curiam).

1. Overview

Before proceeding to discuss the individual claims of these plaintiffs, an overview of the facts is helpful. While hindsight might suggest that the case developed by the defendants had holes, viewed in the light most favorable to the plaintiffs, a reasonable law enforcement officer or prosecutor in 1989 could have been convinced that the "Beatrice Six" were guilty and that the pleas of these plaintiffs were voluntary and not coerced. While not intended as an exhaustive listing, the following is illustrative:

2. Joann Taylor

Taylor summarizes her argument by stating that she "was an uneducated, mentally unstable, former drug user, with a well-known reputation for lying. The evidence that supported her arrest were obvious, false statements, and the statements were from questionable sources. There was never any physical evidence linking her to the Wilson murder. In the interrogations following her arrest, she never, at any time demonstrated any knowledge whatsoever of any non-public fact (or even public facts) about the Wilson homicide, absent clear and obvious contamination by her interrogators, Searcey and Smith. Searcey, DeWitt and Smith continually threatened her with the death penalty if she refused to cooperate, and promised a possible sentence of only 7 years if she told them what they wanted to hear. Her own attorney told her that a conviction was assured if she went to trial." (Filing 103 at 84.)

I have previously held that the statute of limitations bars Taylor's Fourth Amendment claim for unlawful arrest. See Memorandum and Order entered on November 25, 2009 (filing 42 in Case No. 4:09CV3148), at 17. Because the claim does not require a showing that her subsequent conviction was invalid, Taylor was not precluded from bringing the claim under the rule announced by the Supreme Court in Heck v. Humphrey, 512 U.S. 477, 487-88, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (holding that in order to recover damages for allegedly unconstitutional conviction or imprisonment, plaintiff must prove that conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by authorized state tribunal, or called into question by federal court's issuance of writ of habeas corpus). See Moore v. Sims, 200 F.3d 1170, 1171-72 (8th Cir.2000) (per curiam) (inmate's claim that he was unlawfully seized was not barred by Heck rule since proof that inmate's initial seizure and detention by officers was without probable cause would not necessarily imply the invalidity of his drug-possession conviction). Taylor argues that "[b]ut for [her] arrest, there would have been no opportunity for Searcey, DeWitt, Lamkin, Price and Smith to coerce false admissions, a false confession or an involuntary plea." (Filing 103 at 74). However, even if an "initial Fourth Amendment violation set the wheels in motion for [her] subsequent conviction and detention," the claim is time-barred. Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). Taylor's allegations that she was arrested without probable cause are not relevant to her due process claim, nor to the claims of the other plaintiffs.

I also have previously ruled that the statute of limitations bars Taylor's claim under the Fifth and Fourteenth Amendments that her false confessions were coerced by the defendants. See Memorandum and Order entered on November 25, 2009 (filing 42 in Case No. 4:09CV3148), at 18. This is because the Eighth Circuit has held that a § 1983 action challenging the voluntariness of a confession is not Heck-barred. See Simmons v. O'Brien, 77 F.3d 1093, 1095 (8th Cir. 1996) (explaining that "judgment in favor of Simmons on this § 1983 action challenging his confession will not necessarily demonstrate the invalidity of his conviction") (emphasis in original). The other plaintiffs are not precluded from claiming that Taylor's false statements implicating them in the crime were the result of unlawful coercion, but she can no longer sue the defendants regarding her self-incriminating statements.

Taylor's guilty plea was also a false confession, of course, but she could not claim the plea was involuntary without challenging her conviction. See Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) ("A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment."). Under Heck, this claim could not have been maintained prior to Taylor receiving her pardon. See, e.g., Bills v. Adair, No. 08-12207, 2009 WL 440642, at *10 (E.D.Mich. Feb. 23, 2009) (inmate could not bring § 1983 action claiming that defendants forced him to plead no contest to charges for which he was convicted); Smith v. Hayden, No. 5:05-cv-00884, 2009 WL 1299033, at *6-7 (S.D.W.Va. Feb. 3, 2009) (inmate's Bivens claim that he was "railroaded" into involuntary plea not cognizable pursuant to Heck), report and recommendation adopted, 2009 WL 1287033 (S.D.W.Va. May 8, 2009).

To the extent Taylor argues that her plea was involuntary because she and her attorney concluded her allegedly coerced confession assured a conviction if she went to trial, her claim is specious. In McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), the Supreme Court considered similar arguments made by three habeas petitioners. One petitioner claimed to have confessed to robbery after being beaten, refused counsel, and threatened, and he entered a plea of guilty to a reduced charge after his attorney advised that he did not stand a chance because of his confession. Another petitioner claimed to have been beaten into confessing to first-degree murder, and he followed his attorney's advice by pleading guilty to second-degree murder in order to avoid the electric chair. A third petitioner claimed to have confessed to robbery after being threatened with a pistol and physically abused. He also pleaded guilty to a reduced charge on the advice of counsel. Reversing the Court of Appeals for the Second Circuit, the Supreme Court ruled that the petitioners were not entitled to a hearing on their claims that the guilty pleas were involuntary. The Supreme Court stated:

Id. at 766-69, 90 S.Ct. 1441 (footnotes omitted).

Taylor cannot avoid the bar of the statute of limitations merely by claiming that a coerced confession was followed by a plea of guilty. Rather, she must show that the defendants' allegedly coercive conduct had "an abiding impact and also taint[ed] the plea." See id. at 767, 90 S.Ct. 1441 (emphasis added). I conclude as a matter of law that there is not sufficient evidence to support such a finding.

Taylor was arrested in North Carolina on March 15, 1989, and gave a statement to the local authorities in which she admitted being present when White and an unknown male raped and killed Wilson. Searcey and DeWitt flew to North Carolina the next day and took another statement in which Taylor, after waiving her Miranda rights, again admitted being present during the murder. On March 17, 1989, back in Nebraska, Taylor provided more details to Searcey after being Mirandized and she identified Winslow as the other male participant. At her request, Taylor was also interviewed by Price, who made clear that she was not his client and that he was working for the Gage County Sheriff's Office. Price and Taylor did not discuss the facts of the case, and there was no subsequent interview between them. In a proffer interview on August 30, 1989, Taylor repeated many of the same things that she had stated previously. She admitted talking to Lisa Podendorf the day after the murder and telling Podendorf that she and White were responsible for Wilson's death. On September 1, 1989, pursuant to a plea bargain, Taylor pleaded guilty to an amended information charging her with second-degree murder. The court, after receiving testimony from an examining psychiatrist, determined that Taylor was competent to enter a plea and was sane at the time of the offense. Taylor denied she had been induced, persuaded, or influenced to enter her plea of guilty by reason of any threats made against her or any promises made to her on the part of any person. Moreover, Taylor has admitted that she knew she was innocent when she entered her plea of guilty.

Taylor claims that she accepted the plea bargain because Smith, Price, DeWitt, and Searcey repeatedly told her that she was going to death row if she didn't "come clean." However, that argument misses the point because it is well-established that "a plea of guilty is not invalid merely because entered to avoid the possibility of a death penalty." Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Also, "[a] threat to prosecute under state law where the facts warrant prosecution should not be considered as coercive or intimidating. To constitute fear and coercion on a plea `Petitioner must show he was subjected to threats or promises of illegitimate action'; and fear of a greater sentence may induce a valid plea of guilty." Ford v. United States, 418 F.2d 855, 859 (8th Cir.1969) (quoting Kent v. United States, 272 F.2d 795, 799 (1st Cir.1959)). "While confronting a defendant with the risk of more severe punishment clearly may have a discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable—and permissible—attribute of any legitimate system which tolerates and encourages the negotiation of pleas." Nguyen v. United States, 114 F.3d 699, 704 (8th Cir.1997) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (internal quotations and citation omitted)). Taylor's plea bargain is not in evidence, but she claims the State recommended a sentence of 15 years while a 40-year sentence was actually imposed. At the plea hearing, however, Judge Rist advised Taylor that he was not bound by the plea agreement and Taylor affirmed that she understood this fact. "Where a defendant is aware that his plea is not in exchange for a particular sentence but hopes that the court will follow the recommendation, he is not misled so as to undermine the voluntariness of the plea." Lindner v. Wyrick, 644 F.2d 724, 728 (8th Cir.1981).

In summary, Taylor's evidence is not sufficient to show that her guilty plea was the result of unlawful coercion, intimidation, or inducements. Her other claims are barred by the statute of limitations.

3. James Dean

Dean claims that County Attorney Smith violated his constitutional rights by (1) "[taking] part in questioning Dean after he requested counsel, thus violating his Sixth Amendment right to representation," and (2) "coerc[ing] Dean when he took part in interrogating Dean and in setting up the polygraph that resulted in his involuntary statements, thus constituting a violation of his Fifth and Fourteenth Amendment rights not to incriminate himself." (Filing 104 at 33.) Leaving aside the question of whether Smith is entitled to absolute immunity in connection with these alleged "investigatory" activities, I find as a matter of law that Dean cannot prevail on either claim.

The first violation allegedly occurred on April 16, 1989, when Dean was questioned about the murder and denied any involvement. He claims that "one of those present—Smith, Lamkin, or DeWitt88—specifically told Dean that he did not need a lawyer, and he needed to tell them what had happened[.]" (Id. at 34.) It is claimed that "Dean repeatedly asked for a lawyer, maybe as many as five to six times," but that "police—with Smith present—continued to question Dean after his requests." (Id.) However, there is no showing that the alleged interrogation produced any incriminating evidence. Dean has stated, in fact, that he "repeatedly" and "continually" told his interrogators that he knew nothing about the crime and took no part in it. (Dean's Ex. 16 [ECF 109-1], ¶ 19; Taylor's Ex. 146 [ECF 121-5] ¶ 19.) Dean "has no cause of action under 42 U.S.C. § 1983 because he has not . . . show[n] that he was prejudiced by having been questioned without his counsel present." Pasdon v. City of Peabody, 417 F.3d 225, 228 (1st Cir.2005).

In support of the second claim, Dean argues "[t]here is evidence that Smith, along with Price, Searcey, Lamkin, and DeWitt, engaged in an extensive campaign of thought reform to coerce Dean into admitting his involvement in Wilson's murder. Smith personally participated in at least two of Dean's interrogations and instigated a polygraph that helped to coerce Dean into giving involuntary confessions to a murder that evidence has proven he did not, in fact, commit. According to Dean, Smith substantially participated in actually questioning him on two occasions: April 16, 1989 (after Dean had asked for counsel but before counsel's appointment), and May 8, 1989." (Filing 104 at 36-37.) I have previously held that a four-year statute of limitations precludes Dean from bringing this "coerced confession" claim against Smith and the other defendants. See Memorandum and Order entered on November 25, 2009 (filing 32), at 7.

Dean next argues that "[o]n April 14, 1989, Searcey, acting in his capacity as a Gage County Deputy Sheriff, swore out an Affidavit for Dean's arrest warrant. . . . The information on which Searcey relied in the warrant did not tell the whole story, but instead contained unreliable information that he knew or should have known would create a false impression regarding the evidence." (Filing 104 at 42.) Again, I have previously held this Fourth Amendment "false arrest" claim is barred by the applicable statute of limitations. See Memorandum and Order entered on November 25, 2009 (filing 32), at 5-6.

Dean contends that Searcey and Lamkin violated his Sixth Amendment rights by allegedly speaking to him in jail without counsel being present and by allegedly taking him from the jail to view Helen Wilson's apartment without his counsel's knowledge. Dean argues:

(Filing 104 at 48-50 (emphasis in original; internal references to record omitted).)

There is no evidence that the defendants elicited any incriminating statement from Dean when his attorney was not present. The evidence shows that Dean confessed on May 8, 1989, pursuant to a plea bargain, and then provided another statement on May 17, 1989, immediately prior to entering a plea of guilty to second-degree murder. On both occasions his attorney was present. While there may be sufficient evidence to support Dean's claim that Searcey and Lamkin engaged in unauthorized interrogation activities by advising him that he needed to cooperate to avoid the death penalty and by taking him to view the crime scene, the evidence does not show that Dean incriminated himself as a result of these actions or that he was coerced to enter a plea of guilty because of those actions.

Although I did not address this issue when ruling on the defendants' motion to dismiss, because Dean did not specifically allege this Sixth Amendment claim in his complaint, it also is apparent the claim is barred by the statute of limitations. In Simmons, the Eighth Circuit held that a § 1983 action challenging the plaintiff's confession was not precluded by Heck "[b]ecause harmless error analysis is applicable to the admission at trial of coerced confessions[.]" Simmons, 77 F.3d at 1095. Dean's claim that he was interrogated after invoking his right to counsel is likewise subject to harmless error analysis. See Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972) (holding that admission of post-indictment, pretrial confession obtained by police officer who posed as prisoner confined in cell with petitioner was harmless error).

Dean claims that Searcey and Lamkin also violated his rights under the Fifth and Fourteenth Amendments by "engag[ing] in a prolonged campaign of psychological coercion, using unreasonable tactics that can only be seen as compulsion, to elicit Dean's inculpating statements." (Filing 104 at 51.) The alleged coercive tactics essentially are those mentioned above in connection with Dean's Sixth Amendment claim. Additionally, it is claimed that "Price . . . use[d] the polygraph results to convince Dean that he had committed the murder, but that he had `repressed' the memory of it" and "showed Dean crime scene photographs depicting Wilson's body." (Id. at 66, 70.) Dean argues that "Price used his position as a psychologist and the skills he had acquired in the profession to exploit Dean in his role as sheriff's deputy. . . . Price's own report shows that he used questionable psychological theories and techniques to convince Dean he had actually committed the murder; to abandon his belief in his own innocence; to accept the fact that he may have been `repressing' his memories of Wilson's murder; then to `recover' pseudo memories.'" (Id. at 76.) It is further claimed that "DeWitt also participated in interrogating Dean and convincing him that he had `repressed' his memory of the murder. During the weeks after Dean initially saw Price on May 2, 1989, Searcey, Lamkin and DeWitt repeatedly spoke to him without Schmeling present." (Id. at 60.) "On May 17, 1989, . . . with Schmeling present, DeWitt, Searcey, Price and Smith subjected Dean to a viewing of a videotape of the original crime scene that showed graphic images of the dead Mrs. Wilson89 . . . [because] Price had suggested that this procedure might shock Dean into `remembering' his participation in the murder." (Id. at 61-62.)

As stated above, I have previously held that Dean's "coerced confession" claim under the Fifth and Fourteenth Amendments is barred by the statute of limitations. See Memorandum and Order entered on November 25, 2009 (filing 32), at 7. Although Dean does not specifically argue that his guilty plea was coerced, I now find after having carefully reviewed the record that there is not sufficient evidence to support such a claim. After all, it was Dean's counsel, Richard Schmeling, who requested that his client be administered a polygraph and it was his counsel who asked Price to consult with Dean after Dean failed the polygraph; it was Dean's counsel, Richard Schmeling, who agreed that Price could provide Dean with therapy without counsel being present; it was Dean's counsel, Richard Schmeling, who sat through numerous interviews of Dean, conducted pursuant to Miranda waivers, whereat Dean inculpated himself and others; it was Dean's counsel, Richard Schmeling, who told the judge who accepted the plea that the summary recited by the prosecutor "fairly well sets forth the facts"; and it was Dean's counsel, Richard Schmeling, who told the judge who accepted the plea that the lawyer had nothing to add to Dean's statement that he (Dean) had participated in the events that the prosecutor had outlined. It is also important to note that a unanimous Nebraska Supreme Court came to a similar conclusion when it determined that Dean's guilty plea was a voluntary and intelligent choice among alternative courses of action open to him. State v. Dean, 237 Neb. 65, 464 N.W.2d 782, 787-789 (1991) (stating, among other things, that Dean "made a judicial admission [in answer to the judge's questions] that he actively participated in certain events outlined by the county attorney, including forcing entry into the victim's apartment and giving advice on where to look for money.") Under these circumstances, it is impossible to believe that Dean's guilty plea was coerced.

4. Kathy Gonzalez

Gonzalez was arrested after James Dean and Debra Shelden both told Searcey on May 24, 1989, that she was at the scene of the murder. Gonzalez contends their statements were inconsistent and unbelievable, and she complains that Shelden identified her after being shown a single mug shot. Gonzalez argues that the warrant for her arrest was issued without probable cause, but I have previously held this claim is barred by the statute of limitations, for the reasons discussed above in connection with Taylor's and Dean's Fourth Amendment claims. See Memorandum and Order entered on November 25, 2009 (filing 44 in Case No. 4:09CV3146), at 16-17.

The record shows that Gonzalez entered into a plea agreement on October 5, 1989, and that a nolo contendere plea to aiding and abetting second-degree murder was entered on her behalf. According to Gonzalez, "Smith told her that if she went to trial, he would get a conviction, ask for the death penalty, and at the least, she would get life in prison." (Filing 103 at 89.) As discussed above in connection with Taylor's claim of coercion, there was nothing improper about Smith's statement. Gonzalez also claims that "[j]ust like with Dean and Taylor, [she] was continually harassed by DeWitt and Searcey while in county jail, when her lawyer was not present. DeWitt would tell [her] to come clean and tell the truth, and Searcey would implore her to consider the family, and `don't you want this to be over.'" (Id. at 88 (internal citations to record omitted).) To the extent Gonzalez is claiming a Sixth Amendment violation, her claim fails because (1) she did not give any incriminating statements and (2) the statute of limitations applies to bar the claim. There is no evidence that Gonzalez's plea bargain resulted from the alleged harassment.

Gonzalez states in her brief that "[s]he made her `choice' [to plea bargain] because she was convinced that fabricated witness testimony and false physical evidence would put her in the electric chair." (Id. at 89.) It is also argued that "White's conviction was the direct and exclusive product of the knowing use of false and unreliable evidence, primarily in the form of claimed witness testimony," and that "Kathy Gonzalez' and Tom Winslow's decisions to enter no contest pleas were the direct and exclusive product of the knowing use of false and unreliable evidence against Joe White. See Napue v. Illinois, 360 U.S. 264, 269 [79 S.Ct. 1173, 3 L.Ed.2d 1217] (1959); Wilson v. Lawrence County, 260 F.3d at 954." (Id. at 91.)

Considering that Kathy Gonzalez was convicted in advance of White's trial, and, in fact, appeared as a witness for the prosecution in White's trial, it can hardly be said that her decision to plea bargain resulted from the knowing use of false and unreliable evidence during White's trial. It is fair to say, though, that Gonzalez's decision not to go to trial undoubtedly was influenced by the potential testimony of James Dean and Deb Shelden, both of whom placed her at the scene of the crime and recalled that she was injured. It is likely her decision was also influenced by the fact that blood similar to hers was found on various items in Helen Wilson's apartment. Gonzalez testified in a deposition taken on September 15, 2010, that DeWitt had informed her the bloodstains found at Wilson's apartment matched her blood "100 percent." She notes the laboratory reports show that at least one genetic marker was different and argues the defendants should have known from reading the reports that it was not her blood in the apartment. The record establishes, however, that this issue was explored during a deposition of Dr. Roy that was taken on September 8, 1989, almost one month before Gonzalez's plea. Even if DeWitt falsely represented that there was a "100 percent" match, deceiving a suspect is not unconstitutional per se. See United States v. Boslau, 632 F.3d 422, 428 (8th Cir.2011) ("The mere fact that an officer may have elicited a confession through a variety of tactics, including claiming not to believe a suspect's explanations, making false promises, playing on a suspect's emotions, using his respect for his family against him, deceiving the suspect, conveying sympathy, and even using raised voices, does not render a confession involuntary unless the overall impact of the interrogation caused the defendant's will to be overborne.") (internal quotations omitted). The statements of Dean and Shelden also had known weaknesses.

In Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), the Supreme Court held that the petitioner, who was convicted of murder, was denied due process when a key witness for the prosecution falsely denied that he had been promised consideration for his testimony. The Court stated that "it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment[.]" Id. at 269, 79 S.Ct. 1173. In the other case cited by the plaintiffs, Wilson v. Lawrence County, 260 F.3d 946 (8th Cir.2001), involving a § 1983 action, the Eighth Circuit applied this principle to a situation where a witness's false statement, allegedly the product of police coercion, was used both at a probable cause hearing and at an Alford plea hearing90 to secure a murder conviction. In finding that the police officers were not entitled to qualified immunity, the Court stated:

Id. at 954-55 (footnote omitted).

False evidence may have been used at White's trial, but his § 1983 action is not before me. I am concerned only with Gonzalez's and Winslow's claims that they were convicted through the use of false evidence. Neither has shown that any evidence was presented at their plea hearings, although it appears from journal entries that, as required by Nebraska procedures, a determination was made that a factual basis existed for their pleas of nolo contendere and no contest.91 In each case County Attorney Smith outlined the facts he expected to prove in the event of a trial. However, there is no transcript (i.e., bill of exceptions) in the record to show what those facts were.

Regardless, "the due process clause does not impose a constitutional duty on state trial judges to ascertain a factual basis before accepting a plea of guilty or nolo contendere that is not accompanied by a claim of innocence." Wallace v. Turner, 695 F.2d 545, 548 (11th Cir.1983). "Only when a defendant proclaims his innocence while pleading guilty have federal courts required a judicial finding of some factual basis for the plea as an essential part of the constitutionally required finding that the plea was voluntary." Id. (citing, inter alia, North Carolina v. Alford, 400 U.S. at 38 n. 10, 91 S.Ct. 160). Otherwise, "the establishment of a factual basis for a guilty [or no contest] plea is not a requirement of due process." Beans v. Black, 605 F.Supp. 342, 346 (D.Neb.1984) (citing Wabasha v. Solem, 694 F.2d 155 (8th Cir.1982); White Hawk v. Solem, 693 F.2d 825 (8th Cir. 1982)).

Because the record does not show that any of the plaintiffs—Gonzalez, Winslow, Taylor, or Dean—asserted their innocence while entering pleas of guilty or no contest, I conclude as a matter of law that they cannot claim the defendants violated their right to due process by knowingly using false evidence to secure their convictions. Some of the plaintiffs also maintain, again citing Wilson v. Lawrence County, that the defendants' investigatory activities violated the plaintiffs' right to substantive due process. They state that "[g]enerally, conduct denying a liberty interest92 is sufficient to violate the requirements of due process when it shocks the conscious [sic]." (Filing 103 at 91.)

Wilson v. Lawrence County, 260 F.3d at 955.

To establish a substantive due process violation, Gonzalez and the other plaintiffs must show that the defendants' "failure to investigate was intentional or reckless, thereby shocking the conscience." Cooper v. Martin, 634 F.3d 477, 481 (8th Cir.2011) (quoting Brockinton v. City of Sherwood, 503 F.3d 667, 672 (8th Cir. 2007)). "An officer's negligent failure to investigate inconsistencies or other leads is insufficient to establish conscience-shocking misconduct." Akins v. Epperly, 588 F.3d 1178, 1183 (8th Cir.2009). "Likewise, allegations of gross negligence do not give rise to a constitutional violation." Amrine v. Brooks, 522 F.3d 823, 833 (8th Cir.2008). "Where state officials `have the opportunity to deliberate various alternatives prior to selecting a course of conduct, such action violates due process if it is done recklessly.'" Id. at 833-34 (quoting Wilson, 260 F.3d at 956). "Whether the alleged conduct shocks the conscience is a question of law." Akins, 588 F.3d at 1183 (citing Terrell v. Larson, 396 F.3d 975, 981 (8th Cir.2005) (en banc)).

The Eighth Circuit "ha[s] held that the following circumstances indicate reckless or intentional failure to investigate that shocks the conscience: (1) evidence that the state actor attempted to coerce or threaten the defendant, (2) evidence that investigators purposefully ignored evidence suggesting the defendant's innocence, (3) evidence of systematic pressure to implicate the defendant in the face of contrary evidence." Id. (citing Amrine, 522 F.3d at 833-35). As summarized in Amrine, the facts in the prior cases were as follows:

Amrine v. Brooks, 522 F.3d at 834-35.

In Amrine, the Eighth Circuit held that the district court did not err in denying the plaintiff leave to amend to allege a substantive due process claim because the amendment would have been futile. Amrine was convicted in 1986 of murdering another inmate at the Missouri state penitentiary, but his conviction was set aside in 2003 when the Missouri Supreme Court granted habeas relief based upon a finding that there was clear and convincing evidence Amrine was actually innocent. The Court of Appeals explained:

Id. at 835.

The plaintiff in Akins was acquitted of assaulting a police officer by running him over with a motor vehicle. Akins, who was shot twice during the incident, sued the investigating officers (Trammell and Vaughan), claiming that they violated his right to substantive due process by failing to conduct an adequate investigation. The Eighth Circuit held the officers were entitled to qualified immunity, stating:

Akins v. Epperly, 588 F.3d at 1184.

The plaintiff in Brockinton was arrested for stealing a boat that he kept as security on a debt owed by Pamela Murphy's late husband. Defendant deputy Randy Gurley filed the theft report without verifying who owned the boat, even though he had previously arrested Murphy for crimes of dishonesty. The Eighth Circuit affirmed qualified immunity for Gurley, stating:

Brockinton v. City of Sherwood, 503 F.3d at 672-73.

Finally, in Cooper, the plaintiff sued a sheriff's investigator after charges against him were dropped. As outlined by the Eighth Circuit, the facts of the case were as follows:

Cooper v. Martin, 634 F.3d at 479. The Court of Appeals reversed the district court's denial of qualified immunity to Martin, and dismissed Cooper's § 1983 claim against Martin in his individual capacity, finding that "Cooper has not established that Martin's investigation violated a constitutional right." Id. at 481. The Court stated:

Id.

Kathy Gonzalez's complete argument is as follows:

(Filing 103 at 84-89.)

After considering Gonzalez's argument, as well as the arguments of the other plaintiffs, and viewing the evidence in the light most favorable to Gonzalez, I find as a matter of law that she is unable to prove a claim that the defendants' behavior shocks the conscience. It was not unreasonable for Searcey to identify Gonzalez as a suspect since she lived in the same apartment building as Helen Wilson and was believed to be Joseph White's girlfriend.97 James Dean's and Deb Shelden's statements may have been inconsistent and open to challenge on other grounds, but Gonzalez and her attorney made a determination that the statements could withstand close scrutiny at trial. Apart from the DNA tests that ultimately freed Joseph White from prison and resulted in the plaintiffs' pardons, there is no newly discovered evidence from which to conclude that the statements were false. Gonzalez's polygraph examination indicated deception, whereas Shelden's exam, taken after her confession but prior to her implicating Gonzalez, did not indicate deception. The evidence does not show that the defendants induced Dean and Shelden to implicate Gonzalez by improper means. There is no showing that the defendants withheld any exculpatory information from Gonzalez or her attorney. Gonzalez's blood test results were disclosed, and the serologist who prepared the report was deposed, before Gonzalez entered her plea. Dr. Roy could not exclude Kathy Gonzalez as the source of the type B blood. All in all, the record will not support a finding that the defendants engaged in conscience-shocking behavior in order to obtain Gonzalez's conviction.

Furthermore, Gonzalez has failed to demonstrate that the constitutional right to be free from reckless investigatory police work was clearly established in 1989. See Sparr v. Ward, 306 F.3d 589, 593 (8th Cir.2002) (noting that although qualified immunity is an affirmative defense for which the defendant carries the burden of proof, the burden is on the plaintiff to demonstrate that the law was clearly established). At least one court has held that the right was not clearly established in 1989. See Whitley v. Allegheny County, No. 07-403, 2010 WL 892207, at *38 (W.D.Pa.) (although the right to a fair trial was clearly established prior to 1989, the contours of that right, at least to the extent that right relates to the level of care required in criminal investigations, were not clearly established; thus, a reasonable officer in 1989 would not have fair warning that conducting a reckless investigation was unconstitutional), aff'd, 402 Fed.Appx. 713 (3rd Cir.2010), cert. denied, ___ U.S. ___, 131 S.Ct. 2153, 179 L.Ed.2d 936 (2011). The Eighth Circuit did not address this prong of the qualified immunity analysis in Wilson v. Lawrence County because the appellants "[did] not challenge the district court conclusion that this right was clearly established at the time of the alleged violation." Wilson v. Lawrence County, 260 F.3d at 955.

In summary, Gonzalez, like Taylor, frames her argument in terms of being forced to plead in order to avoid being tried on a capital offense. I find there is not sufficient evidence to establish that her plea was coerced by the defendants in violation of her rights under the Fourteenth Amendment, nor has it been shown that Gonzalez was convicted through the defendants' knowing use of false evidence.

5. Tom Winslow

Winslow, having been granted use immunity by Smith, provided a statement on March 14, 1989, in which he claimed to have witnessed Joseph White and Joann Taylor attack Helen Wilson. This statement was used to procure arrest warrants for White and Taylor. After Taylor provided a statement on March 17, 1989, saying that White and Winslow had both raped Wilson, Winslow was arrested. He then retracted his prior statement. On April 12, 1989, Cliff Shelden gave a statement to Searcey and Lamkin indicating that Winslow had admitted his involvement in the rape and murder and had also implicated Deb Shelden, along with White and Taylor. The next day, Deb Shelden confessed and confirmed Winslow's involvement in the crime. Dean identified Winslow as a participant on May 8, 1989.

Winslow simply argues:

(Filing 103 at 89-91.)

As with Gonzalez and the others, I find as a matter of law that there is not sufficient evidence to establish that Winslow's no contest plea was coerced or that his conviction was obtained through the knowing use of false evidence or conscience-shocking investigatory activities by the defendants. Any claim that Winslow's plea was coerced or that the defendants knowingly used false evidence or acted in a shocking manner is particularly weak. The evidence against Winslow was strong and included two especially damning actions by Winslow himself. That is, Winslow admitted that he lied about his whereabouts on the night of the murder and he voluntarily made admissions during a use immunity interview, while in the presence of his counsel, wherein he implicated himself, White, and Taylor. That later statement became available to the prosecution after Wilson recanted and admitted that he had continued with his lying ways after promising to tell the truth.100 Certainly none of these things can be laid at the feet of the defendants. In fact, according to Winslow's own brief in this case, his very experienced criminal defense "lawyer told him that there was no way to dispute" the prosecution's case. Obviously wanting to calculate the risks of a trial himself, Winslow waited until a jury had found White guilty beyond a reasonable doubt before deciding which side of the fence to come down upon. Following a full opportunity to assess the risks, Winslow made an entirely voluntary plea based upon the forceful recommendations of his able lawyer.

In sum, while it is surely regrettable that Winslow and the other plaintiffs served time in prison for crimes they evidently did not commit, their constitutional rights were not violated.101 And, of course, the question of whether the defendants were negligent or committed some other tort under Nebraska law is not before me and I express no opinion about such matters. Nor do I approve or disapprove of the acts or omissions of the defendants—I conclude only that plaintiffs' constitutional rights were not violated and that each of the defendants has qualified immunity from suit.

B. Absolute Immunity

Prosecutors are absolutely immune from liability in suits under § 1983 for activities that are "intimately associated with the judicial phase of the criminal process[.]" Imbler v. Pachtman, 424 U.S. 409, 428, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). However, "that absolute immunity may not apply when a prosecutor is not acting as `an officer of the court,' but is instead engaged in other tasks, say, investigative or administrative tasks." Van de Kamp v. Goldstein, 555 U.S. 335, 129 S.Ct. 855, 861, 172 L.Ed.2d 706 (2009). A "functional approach" is used to decide whether absolute immunity attaches to a particular kind of prosecutorial activity. Id. (citing Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991)).

For example, in the years since Imbler, the Supreme Court has held "that absolute immunity applies when a prosecutor prepares to initiate a judicial proceeding, or appears in court to present evidence in support of a search warrant application." Id. (citations omitted). On the other hand, the Court has held "that absolute immunity does not apply when a prosecutor gives advice to police during a criminal investigation, when the prosecutor makes statements to the press, or when a prosecutor acts as a complaining witness in support of a warrant application." Id. (citations omitted).

"Before the establishment of probable cause to arrest, a prosecutor generally will not be entitled to absolute immunity." McGhee v. Pottawattamie County, 547 F.3d 922, 929 (8th Cir.2008) (citing Buckley v. Fitzsimmons, 509 U.S. 259, 274, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993)), cert. granted, ___ U.S. ___, 129 S.Ct. 2002, 173 L.Ed.2d 1083 (2009). The Eighth Circuit has also found that "immunity does not extend to the actions of a County Attorney who violates a person's substantive due process rights by obtaining, manufacturing, coercing and fabricating evidence before filing formal charges, because this is not `a distinctly prosecutorial function.'" Id., at 933.

In previous rulings on the defendants' motions to dismiss, I determined that County Attorney Smith was immune from suit regarding certain claims alleged by the plaintiffs because he was acting as a prosecutor, but that it could not be determined from the pleadings whether he had immunity regarding other claims. Now that the facts are available, I find that Smith is entitled to absolute immunity as to all claims.

C. Claims Against the County

Because I have determined that the plaintiffs' constitutional rights were not violated, the claims brought against Smith, DeWitt, Searcey, Price, and Lamkin in their official capacities, and against Gage County, necessarily fail. "[I]n order for municipal liability to attach, individual liability must first be found on an underlying substantive claim." Cooper, 634 F.3d at 481-82 (quoting Brockinton, 503 F.3d at 674). Judgment therefore will be entered dismissing the plaintiffs' actions in their entirety.

IT IS ORDERED: