1 Complaint

Case 1:21-cv-02506-TWP-MJD Document 1 Filed 09/23/21 Page 1 of 30 PageID #: 1
the actions of Defendants Department of Justice ("DOJ") and Alcohol, Tobacco and
Firearms ("ATF") regarding biological DNA evidence from the crime scene that was
in the possession of ATF, and false microscopic hair evidence and testimony that
was introduced at Plaintiffs trial. DOJ and ATF lost or destroyed that DNA
evidence without complying with federal statutes and regulations. DOJ, after
determining that microscopic hair evidence is false, refused to comply with its own
directives that gave Plaintiff a due process right to challenge the use of such false
evidence without any barriers. Those directives from the Attorney General's Office
and FBI Headquarters require a waiver of defenses, admission of falsity, imputation
of falsity to the government, and exoneration with or without DNA evidence.
2. In 2015, the DOJ and FBI released a report finding that 95% of all
microscopic hair evidence and testimony prior to 2000 was false, and that false
evidence resulted in hundreds of wrongful convictions. The FBI stated that it was
continuing to review all cases in which such evidence was used in order to contact
the defendants so they could challenge and vacate their convictions. On February
26, 2016, then-FBI Director James Corney sent a letter to the Governors of all 50
states, including Indiana, urging them and their crime labs to conduct their own
reviews since many state microscopic hair analysts were trained by the FBI and
gave false testimony as a result.
3. Indiana State Police ("ISP") Sergeant Michael Oliver was presented by the
DOJ as a microscopic hair expert during Plaintiffs 1981 trial, and he testified that
hair found on a ball cap had a "common origin" to Plaintiffs hair. This is another
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way of saying that the hair "matched" Plaintiffs hair, which the 2015 DOJ report
considers the most serious error possible in microscopic hair cases. Sgt. Oliver's
microscopic hair analysis was conducted at the Indiana State Police Laboratory.
The false testimony of Sergeant Oliver was the last testimony the jury heard during
the trial and it contributed to the jury verdict. This fabrication was directly at odds
with the accepted practices in the field of hair analysis at that time. Specifically,
even accepted science in 1981 stated that a comparison could not produce a match
that could uniquely identify one person as the source of a hair or hairs.
4. Based in part on the fabricated microscopic hair evidence by ISP, Michael
Oliver and DOJ, Plaintiff was wrongfully convicted and sentenced to 50 years in
prison.
5. In 2019, after Plaintiff challenged the use of microscopic hair evidence in his
criminal case, the DOJ refused to comply with its own directives in several ways;
first by refusing to waive barriers and procedural defenses; second, by not admitting
the falsity of the evidence; third, by not imputing that falsity to the government;
and fourth, by refusing to exonerate Plaintiff even after the DOJ and ATF admitted
that the hair evidence was lost or destroyed and therefore could not be tested to rule
out Plaintiff or point to the real perpetrator. The FBI has never reviewed the use of
false microscopic hair evidence in Plaintiffs case despite his raising the issue in his
post-conviction motions, and his repeated letters to the DOJ's Inspector General
and Office of Professional Responsibility in 2019, 2020 and 2021.
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6. The DOJ has known, at least since 1977, four years prior to Plaintiffs trial,
that microscopic hair evidence is not reliable. John W. Hicks, Special Agent,
"Microscopy of Hairs: A Practical Guide and Manual, Federal Bureau of
Investigation, U.S. Department of Justice" (Jan. 1977) p. 41.
(https://www.ncjrs.gov/pdffilesl/Digitization/78957NCJRS.pd:O In 1999, DOJ also
issued a directive to all US Attorneys entitled, "Post Conviction DNA Testing:
Recommendations For Handling Requests" requiring prosecutors to take
"affirmative steps to prevent the destruction of potentially relevant evidence that
may or may not have been tested. Immediate action may be needed when there is a
policy authorizing the routine destruction of evidence."
https://www.ncjrs.gov/pdffilesl/nij/177626.pdf Despite the DOJ's knowledge about
the unreliability of microscopic hair evidence and the importance of retaining
biological evidence, DOJ and ATF failed to do this in Plaintiffs case.
7. The Indiana State Police has never, upon Plaintiffs belief, conducted any
review of cases in which microscopic hair evidence analyzed in its labs has been
used in criminal trials. On April 23, 2020, Plaintiff sent a letter to Indiana
Governor Eric Holcomb and ISP Superintendent Douglas Carter requesting that
they conduct a "comprehensive review of all criminal cases involving Indiana State
Police Microscopic Hair Analysts over the past five decades." Neither of those
public officials ever responded to that letter and there has been no public
announcement about such a review. Many other states have conducted such
reviews and exonerated many wrongfully convicted defendants as a result.
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8. At least two other wrongfully convicted Indiana defendants spent a combined
three decades in prison based on false microscopic hair evidence/testimony from the
Indiana State Police Laboratory. William Barnhouse spent 25 years in prison and
Richard Alexander spent five years in prison for rape and sexual assaults they did
not commit after ISP analysts testified falsely that microscopic hair found at the
crime scene matched their hair. Later DNA evidence proved that testimony false.
9., ATF failed to retain the biological evidence used at Plaintiffs trial and has
asserted through the DOJ that it cannot locate the evidence or Plaintiffs case file or
even any certificate of destruction as required by ATF regulations. The DOJ cannot
assert with certainty what happened to the hair evidence. Despite this, the DOJ
still refuses to comply with its directives on microscopic hair evidence which would
allow exoneration with or without the biological evidence.
10. Because of the missing biological evidence and the refusal of the DOJ to
comply with its own directives, Plaintiffs post-conviction motions were denied.
The Jury Tampering, Fraud Upon The Court, And Nearly 40-Year Coverup
11.In the summer of 1978, Indiana State Police Detective Brooke Appleby
teamed up with the ATF, ATF agent Patrick Donovan and Assistant US Attorney
Kennard Foster to wrongfully convict Plaintiff. Detective Appleby had been secretly
investigating Plaintiff for years prior to his arrest but had never been able to
connect him to any criminal activity. He harbored an extreme bias against Plaintiff
and offered to hypnotize witnesses to falsely implicate Plaintiff in the unsolved 1978
crimes. Sometime in the fall of 1978, Detective Appleby hypnotized witnesses who
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then falsely implicated Plaintiff in criminal activity. The hypnosis evidence was
fabricated.
12. Hypnosis evidence is now considered unreliable junk evidence that has been
banned by virtually all courts. Defendants Brooke Appleby, Patrick Donovan and
Kennard Foster knew that it was unreliable but used it at Plaintiffs trial in order
to wrongfully convict him. The DOJ, ATF, Patrick Donovan, and Brooke Appleby
all knew at the time of Plaintiffs trial that the hypnotizing of witnesses could
undermine the fairness of Plaintiffs trial.
13. Prior to the hypnosis sessions, Detective Appleby met with ATF Agent
Patrick Donovan and gave him a large investigative file, approximately six inches
thick, that he had compiled during his secret, multi-year investigation of Plaintiff.
That file was withheld from Plaintiff during trial despite repeated discovery
requests, and repeated assurances from the DOJ that it had provided all discovery.
14. Detective Appleby testified as a hypnosis expert at Plaintiffs first criminal
trial that ended in a hung jury on the relevant counts, 9 to 3 for acquittal. At no
time did he mention that he had amassed the huge file.
15. During voir dire at the retrial of the relevant counts, prospective juror
Shirley Henderson stated falsely that she did not know anyone who worked in law
enforcement and did not have any friends involved with law enforcement. In fact,
however, she and her husband Donald were close relatives and friends of Detective
Appleby and she knew that he was employed in law enforcement and that he had
testified at Plaintiffs first trial and would testify at the retrial. Detective Appleby
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had spent a great deal of time with the Hendersons and at each other's homes in the
years prior to the trial. Shirley Henderson was chosen as a juror based on her
intentionally false statements during voir dire.
16. The trial judge repeatedly instructed the jurors that they could have no
contact with anyone outside of the jury, and to report any contacts to the court.
Shirley Henderson repeatedly violated those instructions by having contact with
Detective Appleby and the case agents, including Patrick Donovan, directly and
indirectly through her husband during trial and/or during post trial juror
misconduct proceedings. She told her husband Donald that she was a juror and
Donald met with Detective Appleby during the trial to discuss her jury service.
Neither Detective Appleby nor Juror Henderson informed the court about their
relationship even when he testified mere feet from her at trial. Neither Detective
Appleby nor Patrick Donovan, both officers of the court, informed the court of their
contacts with Juror Henderson or her husband, and did not intervene to stop
Shirley Henderson's lies and jury corruption. Neither Shirley Henderson nor her
husband Donald informed the judge or defense counsel about their close
relationship with Detective Appleby. In fact, they actively hid that relationship.
Detective Appleby maintained a close relationship with Shirley and Donald
Henderson after Plaintiffs trial and, in fact, Donald Henderson later hired
Detective Appleby to work at the Indiana Farm Bureau where Donald Henderson
was an executive.
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17. Kennard Foster was one of two Assistant US Attorneys prosecuting the case
and he was responsible for the conduct of his witness, Detective Appleby, and his
case agent, Patrick Donovan. AUSA Foster, by virtue of that supervisory capacity
and as an officer of the court, was required to inform the trial court of the corrupt
relationship between Detective Appleby and Juror Henderson. However, he failed
to intervene after he learned about the corrupt relationship and hid that
relationship from the trial court in order to ensure Plaintiffs wrongful conviction.
18. Juror Henderson voted to convict Plaintiff and exerted a powerful influence
on the other jurors to convict. When an alternate juror complained about other
juror misconduct following the jury verdict, Juror Henderson contacted Patrick
Donovan and met with him, her husband, Detective Appleby and others after the
trial to discuss strategy on how to counter the alternate juror's revelations. All of
those parties hid this meeting from the trial judge and defense counsel.
19. In the spring of 2019, Dan Luzadder, an investigative reporter who
previously worked at the Indianapolis Star, was investigating some cold cases from
1978 and he was referred by another Indiana State Police detective to talk with
Detective Brooke Appleby. In a series of phone interviews, Detective Appleby made
three crucial and startling admissions to Mr. Luzadder: first, that he was a
participant in a jury tampering scheme along with Shirley Henderson, Donald
Henderson, Patrick Donovan and Kennard Foster; second, that he was not the
independent hypnotist the DOJ presented him to be at trial because he had been
secretly investigating Plaintiff for years prior to the hypnosis sessions and had
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amassed a huge investigative file; and third, that he gave that investigative file to
ATF Agent Patrick Donovan prior to the hypnosis sessions and it was never
returned. He told Mr. Luzadder that he and Juror Henderson agreed not to have
eye contact during the trial out of fear of discovery, and he mocked defense counsel
for not discovering that he was related to Juror Henderson. He told Mr. Luzadder
that prior to the hypnosis sessions, he had spent years covertly following Plaintiff,
taking photos of him and his properties by ground and air, and engaging in other
types of warrantless surveillance.
20. In 2019 and 2020, when Plaintiff brought this jury tampering to the attention
of the District Court in a motion to vacate, the DOJ refused to accept responsibility
for the jury tampering or to agree to vacate Plaintiffs conviction. Instead, it falsely
accused Plaintiff of tampering with the jury in order to muddy the issue, distract
from its own unethical conduct, and ensure that Plaintiff would not be exonerated.
This misconduct by the DOJ is part of its ongoing coverup and fraud upon the court.
21. The DOJ and Kennard Foster falsely told the 1981 trial court that Detective
Appleby was "independent" in order to bolster their argument that the hypnosis
sessions were not tainted by bias or an agenda. The trial judge relied on that false
statement to allow the use of hypnosis. When Plaintiff appealed his conviction to
the Seventh Circuit Court of Appeals, the DOJ falsely told the court that Detective
Appleby was independent, and that court relied on that false assertion to uphold
Plaintiffs conviction. And when Plaintiff petitioned for Supreme Court review, the
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Solicitor General and the Supreme Court relied on that false statement to deny
certiorari.
22. In 2019, Detective Appleby stated to Mr. Luzadder and in a sworn
declaration that he gave the investigative file to Patrick Donovan and did not make
a copy. He stated that Agent Donovan never returned the file to him. Agent
Donovan falsely stated that he returned the file to Detective Appleby. This false
statement was made as part of the DOJ's continuing coverup of its misconduct and
to ensure that Plaintiff is not exonerated.
23. On March 24, 2019, Plaintiff filed a records request with Indiana State Police
for all records related to him, including all information about the investigations by
Detective Appleby and the microscopic hair analysis by Sergeant Oliver. On April
11, 2019, Cynthia Forbes, Legal Counsel of ISP responded that it had no documents
or files whatsoever about Plaintiff.
24. Detective Appleby was apparently engaged in a multi-year rogue
investigation of Plaintiff while employed by the ISP, and was conducting
surveillance of Plaintiff, taking photographs of Plaintiff and others with him,
covertly following Plaintiff, and entering his properties without a warrant, all
without proper supervision by ISP, without logging his activities, and without filing
copies of his activities or other official reports. Detective Appleby kept his
investigative file in his personal possession. The Indiana State Police failed to
supervise him during this investigation and failed to supervise him when he
engaged in jury tampering during Plaintiffs trial.
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25. Despite Detective Appleby's rogue and renegade conduct, ISP is responsible
for his conduct because he was employed by ISP during the time he engaged in the
misconduct.
26. Detective Appleby, Shirley Henderson, Donald Henderson, Patrick Donovan,
and Kennard Foster (and others unknown or deceased) engaged in a corrupt scheme
to deprive Plaintiff of a fair trial, impartial jury, and due process. They did this and
then entered into a conspiracy of silence for almost 40 years, including more than a
decade while Plaintiff suffered and languished in prison while always maintaining
his innocence. To this day, the only one of these conspirators to admit his
culpability is Detective Appleby, and he did so under oath in a federal court
declaration.
27.DOJ and ATF covered up this corrupt scheme at the criminal trial, on appeal
and on certiorari in order to deprive Plaintiff of his constitutional rights. The DOJ
has continued to coverup this corrupt scheme throughout Plaintiffs post-conviction
process. This continued coverup by the DOJ is to ensure that Plaintiffs is not
exonerated.
28. Kennard Foster acted in a supervisory capacity during the investigation and
trials of Plaintiff, and he knew full well that Detective Appleby, Shirley Henderson,
Donald Henderson and Patrick Donovan were engaged in misconduct, jury
tampering, false statements, and fabrications in order to wrongfully convict
Plaintiff. However, AUSA Foster intentionally ignored, assisted and approved of
their misconduct in order to ensure that Plaintiff was convicted and his criminal
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appeal was denied. Moreover, AUSA Foster concealed the misconduct from Plaintiff
and his attorneys, and allowed false statements to be made to the trial, appellate
and Supreme courts. AUSA Foster failed to intervene when he had an legal
obligation to do so.
29.Absent the misconduct of Detective Appleby, Shirley Henderson, Donald
Henderson, Patrick Donovan, and Kennard Foster, Plaintiff would not have been
convicted and his conviction would never have been upheld on appeal.
30. The misconduct of Detective Appleby, Shirley Henderson, Donald Henderson,
Patrick Donovan, and Kennard Foster not only violated Plaintiffs constitutional
and statutory rights, it also constituted fraud upon the court because it undermined
the integrity of the court.
Plaintiff's Injuries
31. Plaintiff was the owner of a small business in Indianapolis when he was
wrongfully arrested and convicted. He was arrested, prosecuted and convicted
because Detective Appleby, Shirley Henderson, Donald Henderson, Patrick
Donovan, and Kennard Foster were hellbent on ensuring that Plaintiff be
imprisoned for their own unethical reasons.
32. During his more than a decade of wrongful imprisonment, Plaintiff was
deprived of his ability to interact freely with his loved ones, to be present for
holidays, births, deaths, and other life events, to pursue his passion and interests,
to engage in meaningful labor, to travel, and live free as an autonomous human
being. While incarcerated, his brother, and several grandparents passed away and
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Plaintiff was not allowed to attend their funerals. Plaintiff missed his brother's and
sister's weddings and the births of their children.
33. Plaintiff was detained in very harsh, dangerous and isolating prisons, and
falsely branded as a violent offender. He was repeatedly moved to different prisons
in Illinois, Wisconsin, Missouri, Oklahoma, Virginia and Tennessee far from his
family. He spent years in pretrial detention, much in solitary confinement, and was
repeatedly placed in solitary in seven different prisons. He witnessed gratuitous
violence, beatings, abject cruelty, rapes, and corruption on a grand scale. He was
repeatedly denied parole because of his wrongful conviction. The conviction was
used to form liability for a state civil suit that resulted in a $1.5 million judgment
and that judgment was also used to deny Plaintiff parole and later to violate his
parole and drive him into bankruptcy and the loss of his home.
34.All of this caused Plaintiff severe physical and psychological trauma, pain
and suffering.
35.After Plaintiff was released from prison, he had to start from nothing to
rebuild his life outside of prison.
36. Plaintiffs wrongful conviction and the refusal of the DOJ to exonerate and
comply with its own directives deprived him of his statutory due process right to be
compensated for his wrongful conviction and the years he spent wrongfully
imprisoned.
37. The misconduct committed by Detective Appleby, Shirley Henderson, Donald
Henderson, Patrick Donovan, and Michael Oliver was objectively unreasonable and
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was undertaken intentionally, with malice, with reckless indifference to Plaintiffs
rights, and in total disregard of the truth and Plaintiffs innocence and
constitutional rights, and each of them is therefore liable for punitive damages, as
well as the other relief described below.
Exhaustion of Remedies
38. In addition to Plaintiffs complaints to the DOJ Inspector General, the DOJ
OPR, the Indiana Governor and State Police as mentioned above, Plaintiff wrote
letters about these issues to Attorney General Garland on February 26 and April
30, 2021, and to the Acting Solicitor General Elizabeth Prelogar on April 30, 2021,
and to the Chief of the DOJ Appellate Section Patty Stembler on July 13 and 30,
2021, and to the DOJ's Executive Office for United States Attorneys and Assistant
United States Attorney Brian Reitz in Indianapolis on July 30, 2021, all without
any response whatsoever except an August 25, 2021 form letter from the Criminal
Division of DOJ refusing to comment or respond to Plaintiffs letter to Attorney
General Garland. The refusal of these Government officials to respond to Plaintiffs
letters or investigate the facts set forth in them constitutes malfeasance and a
continuing conspiracy to coverup the misconduct, harm Plaintiff and ensure that he
is not exonerated. These many inactions by executive officials of the Department of
Justice constitute a final agency action for purposes of the Administrative
Procedures Act, 5 USC 701 et seq.
39. On May 4, 2021, Plaintiff sent a formal complaint to Internal Affairs at the
Indiana State Police requesting a full, transparent investigation of the corrupt
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activities of Brooke Appleby, but Plaintiff never received any response. This failure
to respond or investigate the serious misconduct set forth in the complaint
constitutes malfeasance and a continuing conspiracy to coverup the misconduct,
harm Plaintiff and ensure that he is not exonerated.
40. On April 26, 2021, Plaintiff also filed a Motion to Recall the Mandate of
Plaintiffs direct trial appeal because of fraud upon the court which the DOJ did not
respond to and it was therefore denied a month later without comment. The failure
of the DOJ to respond and confess error constitutes malfeasance and a continuing
conspiracy to coverup the misconduct, harm Plaintiff and ensure that he is not
exonerated.
41. On March 17, 2021, the District Court for the Southern District of Indiana
denied post-conviction relief to Plaintiff on many of the issues raised in this
Complaint, not on the merits but rather because Defendant DOJ refused to follow
its own directives by raising defenses and erecting barriers to relief. The District
Court relied on defenses raised by DOJ to deny relief despite expressing "sympathy"
for Plaintiffs fraud upon the court claims. The DOJ's actions were done to deny
Plaintiff his right to exoneration and were part of a continuing coverup of
misconduct by DOJ officials.
42. On June 12, 2020, the District Court for the Southern District of Indiana
denied Plaintiffs Motion for DNA Testing finding that Plaintiff had no right to
demand that the DOJ waive jurisdiction re DNA issues under 18 U.S.C. 3600
because the DOJ has no authority to waive jurisdiction. This deprives Plaintiff of
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his due process liberty interests in utilizing federal procedures and DOJ directives
to obtain reversal of his conviction and/or to obtain a pardon or reduction of his
sentence as held by the Supreme Court in Skinner v. Switzer, 562 U.S. 521 (2011).
On September 3, 2021, the District Court denied Plaintiffs Motion to Reconsider
after the DOJ failed to respond. The failure of the DOJ to respond and confess error
43. The refusal of Government officials to respond in 2021 to Plaintiffs multiple
requests for relief, and the Court of Appeals' and District Court's denial of relief,
and the District Court's assault on Executive authority and the Separation of
Powers amounts to an exhaustion of remedies in 2021.
44. The actions of Defendants constitute a "continuing wrong" because they are
continuing to deprive Plaintiff of his due process right to exoneration.
Jurisdiction and Venue
45. The actions of the defendants took place in the Southern District of
Indiana so venue is proper under 28 U.S.C. 1391(e). This Court has jurisdiction over
this action under the provisions of 28 U.S.C. 1331 and 1343 because it is filed to
obtain compensatory damages and punitive damages for the deprivation, under
color of state and federal law, of the rights of Plaintiff secured by the Constitution
and federal law pursuant to 42 U.S.C. 1983 and 1985(2)(cl 1). This Court has
jurisdiction under 42 U.S.C. 1983 because state employees violated Plaintiffs
constitutional rights under color of law. This Court has jurisdiction under 42 U.S.C.
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1985(2)(clause 1) because two or more persons conspired to influence the verdict of
the petit jury in Plaintiffs trial. This Court has jurisdiction under 28 U.S.C. 2201
because Plaintiff has requested declaratory relief. This Court has jurisdiction under
5 USC 702 because Plaintiff has suffered a legal wrong because of actions by the
DOJ and ATF and the agencies failed to respond to complaints by Plaintiff which
constitutes final agency action.
COUNT I
Due Process: Fabrication of Evidence
46. Plaintiff incorporates each paragraph of this Complaint as if fully restated
here.
47.Defendants Department of Justice, Kennard Foster, Indiana State Police and
Michael Oliver individually, jointly and in conspiracy with one another, as well as
under color oflaw, individually and within the scope of their employment, deprived
Plaintiff of his constitutional right to a fair trial and due process by fabricating and
presenting false microscopic hair evidence against him at trial.
48. Defendants Department of Justice, Kennard Foster, Indiana State Police,
and Brooke Appleby individually, jointly and in conspiracy with one another, as
well as under color of law and within the scope of their employment, deprived
Plaintiff of his constitutional right to a fair trial and due process by fabricating and
presenting false, unreliable and bogus hypnosis testimony at Plaintiffs trial.
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49. Defendant DOJ, by failing to respond and confess error on this issue
50. The right to due process and a fair trial is clearly established.
51. Defendants misconduct resulted directly in the wrongful conviction of
Plaintiff. Absent this misconduct, Plaintiffs conviction would not have occurred.
52. This misconduct was objectively unreasonable and was undertaken
intentionally, with malice, with reckless disregard of the truth and Plaintiffs clear
innocence.
53.As a result of these Defendants' misconduct, Plaintiff suffered loss ofliberty,
great emotional pain and suffering, and other grievous and continuing injuries and
damages.
54. Plaintiff seeks a declaratory judgment against Defendants Indiana State
Police, Michael Oliver and Kennard Foster finding that they fabricated false
microscopic hair evidence, and against Department of Justice, Indiana State Police
and Brooke Appleby that they fabricated false hypnosis and presented it to the jury
which contributed to Plaintiffs wrongful conviction. Plaintiff seeks monetary
damages against Michael Oliver and Brooke Appleby in the amount of $10,000,000.
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COUNT II
Due Process and Fair Trial: Jury Tampering, Conspiracy To Intluence Petit Juror
And Coverup
here.
56. Defendants Department of Justice, Kennard Foster, Brooke Appleby, Patrick
Donovan, Shirley Henderson and Donald Henderson individually, jointly and in
conspiracy with one another, as well as under color of law, individually and/or
within the scope of their employment, deprived Plaintiff of his constitutional right
to a fair trial and due process by engaging in jury tampering, spiking the jury with
a relative and friend of Detective Appleby, and covering up that jury tampering for
almost 40 years.
57.Defendants Brooke Appleby, Patrick Donovan, Donald Henderson and
Kennard Foster conspired to and did influence the verdict of petit juror Shirley
Henderson with the intent to injure Plaintiff and deprive him of a fair trial.
58. Defendant DOJ, by failing to truthfully respond and confess error on this
issue, and by falsely accusing Plaintiff of jury tampering constitutes malfeasance
and a continuing conspiracy to coverup the misconduct, harm Plaintiff and ensure
that he is not exonerated.
60. Defendants misconduct resulted directly in the wrongful conviction of
Plaintiff. Absent this misconduct, Plaintiffs conviction would not have occurred.
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mnocence.
62.As a result of these Defendants' misconduct, Plaintiff suffered loss ofliberty,
damages.
63. Plaintiff seeks a declaratory judgment against the United States, Kennard
Foster, Patrick Donovan, Brooke Appleby, Donald Henderson and Shirley
Henderson that they engaged in jury tampering and a coverup.
64. Plaintiff seeks monetary damages against Patrick Donovan, Brooke Appleby,
Shirley Henderson and Donald Henderson in the amount of $10,000,000.
COUNT III
Due Process: Fraud Upon The Court
here.
66. Defendants Department of Justice, Kennard Foster, Brooke Appleby, Patrick
Donovan, Shirley Henderson and Donald Henderson individually, jointly and in
conspiracy with one another, as well as under color of law and/or within the scope of
their employment, deprived Plaintiff of his constitutional right to a fair trial and
due process by engaging in fraud upon the court by engaging in jury tampering and
a conspiracy of silence and coverup, and intentionally refusing to comply with court
orders regarding juror conduct.
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issue, and to falsely accuse Plaintiff of jury tampering constitutes malfeasance and
a continuing conspiracy to coverup the misconduct, harm Plaintiff and ensure that
he is not exonerated.
69. Defendants Department of Justice, Patrick Donovan and Kennard Foster
continued that fraud upon the court by withholding the jury tampering from the
trial court during a post-trial jury misconduct motion, and from the court of appeals
and Supreme Court during the appellate process.
70. Defendants Department of Justice, Kennard Foster, Brooke Appleby and
Patrick Donovan continued that fraud upon the court by hiding the fact that Brooke
Appleby had secretly investigated Plaintiff for years prior to the hypnosis sessions
and amassed a huge investigative file that he gave to Patrick Donovan but never
disclosed to Plaintiff.
71.Defendants Department of Justice, Kennard Foster, Brooke Appleby and
Patrick Donovan continued that fraud upon the court by falsely telling the trial
court, and subsequently the appellate court and Supreme Court that Brooke
Appleby was independent in order to secure a favorable ruling on the controversial
issue of hypnosis.
72. Defendants' misconduct resulted directly in the wrongful conviction of
Plaintiff. Absent this misconduct, Plaintiffs conviction would not have occurred
and/or his conviction would have been overturned on appeal.
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mnocence.
74.As a result of these Defendants' misconduct, Plaintiff suffered loss of liberty,
damages.
75. Plaintiff seeks a declaratory judgment against the United States and
Kennard Foster finding that they committed fraud upon the court by participating
in jury tampering, hiding that tampering from the courts, and providing misleading
information to the courts about the jury tampering directly and by omission, and
misleading the courts about the independence of Brooke Appleby, for the purpose of
harming Plaintiff.
76. Plaintiff seeks monetary damages against Defendants Patrick Donovan,
Brooke Appleby, Shirley Henderson and Donald Henderson in the amount of
$10,000,000.
COUNT IV
Violation of Procedural Due Process
here.
78. Defendant DOJ denied Plaintiff procedural due process by refusing to comply
with its own directives regarding the use of microscopic hair evidence, which it did
comply with in the cases of many other defendants. Those procedures including
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waiving barriers and defenses, admitting falsity, imputing the falsity to the
government, and exonerating defendants where microscopic hair evidence was used.
79. Defendant DOJ denied Plaintiff procedural due process by acquiescing in the
District Court's ruling that the DOJ had no authority to waive jurisdiction in DNA
matters. This acquiescence was part of an intentional act by the DOJ to deprive
Plaintiff of his right to due process and exoneration from a wrongful conviction, and
it violated the language and spirit of DOJ's directives on microscopic hair evidence
to test DNA evidence, and waive barriers and defenses that could bar exoneration.
issue constitutes malfeasance and a continuing conspiracy to coverup the
misconduct, harm Plaintiff and ensure that he is not exonerated.
82.Defendant DOJ's misconduct resulted directly in the continued wrongful
conviction of Plaintiff when it should have been vacated. Absent this misconduct,
Plaintiff would have been exonerated.
83. Defendant DOJ's misconduct deprived Plaintiff his statutory due process
right to compensation for wrongful conviction under 28 U.S.C. 1495 and 2513.
intentionally, with malice, with reckless disregard of due process and Plaintiffs
clear innocence.
85.As a result of Defendant's misconduct, Plaintiff continues to suffer from a
wrongful conviction based on false evidence and testimony.
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86. Plaintiff seeks a declaratory judgment against Defendant DOJ and Attorney
General Garland that it failed to comply with its directives regarding microscopic
hair evidence, that it has the authority to waive defenses and jurisdiction vis a vis
microscopic and biological DNA evidence, and an order of damages in the amount
that Plaintiff would be due under 28 U.S.C. 1495 and 2513 if DOJ had complied
with its directives.
COUNTV
Failure To Intervene
87. Plaintiff incorporates each paragraph of this Complaint as if fully
restated here.
88. Defendants Brooke Appleby, Patrick Donovan and Kennard Foster, all
officers of the court, stood by as jury tampering by Shirley Henderson took place
without intervening to prevent the violation of Plaintiffs constitutional rights to
due process and a fair trial, even though they had the opportunity to do so.
89. Defendant Donald Henderson, the husband of Shirley Henderson who
had a very close relationship with Detective Appleby, not only stood by as jury
tampering by his wife took place but he actively participated in that jury tampering
thereby failing to prevent the violation of Plaintiffs constitutional rights to due
process and a fair trial, even though he had the opportunity to do so. Defendant
Donald Henderson was an active participant in the corruption of the juror, he met
with Detective Appleby during the trial, and he later rewarded Detective Appleby
with a job at a large enterprise where he was an executive.
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clear innocence.
91. As a result of Defendants' misconduct, Plaintiff continues to suffer
from a wrongful conviction based on jury tampering, false evidence and testimony.
92. Plaintiff seeks a declaratory judgment against Defendants Brooke
Appleby, Patrick Donovan, Kennard Foster and Donald Henderson that they failed
to intervene, and monetary damages against Brooke Appleby, Donald Henderson
and Patrick Donovan in the amount of $10,000,000.
COUNT VI
Failure To Supervise And Maintain Records, and Fabrication of Evidence
restated here.
94. Defendant Indiana State Police failed to supervise its employee,
Detective Brooke Appleby, during his secret, rogue investigation of Plaintiff in or
about 1975·1978, and did not properly supervise him when he participated in jury
tampering in 1981, which both led to Plaintiffs wrongful conviction.
95. Defendant Indiana State Police failed to keep or maintain records of
Detective Appleby's rogue investigation of Plaintiff as required by their own
procedures and regulations.
96. Defendant Indiana State Police and its Crime Lab fabricated
microscopic hair evidence that was used to convict Plaintiff and failed to maintain
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records of that lab analysis or conduct any review after the DOJ found that such
evidence was false in 95% of cases and informed ISP about those findings.
97. Defendant Indiana State Police failed to conduct any review of the
misuse of hypnosis by Detective Appleby.
clear innocence.
99. As a result of Defendant's misconduct, Plaintiff continues to suffer
from a wrongful conviction based on false evidence and testimony.
100. Plaintiff seeks a declaratory judgment against Defendant Indiana
State Police and monetary damages in the amount of $10,000,000.
COUNT VII
Destruction Of DNA Evidence And Failure To Follow Retention Procedures
restated here.
102. Defendants DOJ and ATF, by losing or destroying biological DNA
evidence that could exonerate Plaintiff or implicate the true perpetrator of the
crimes, and by not properly following established retention directives and
procedures, and by not properly maintaining the DNA evidence and all records
about that evidence or its alleged destruction, deprived Plaintiff of his right to DNA
testing and its resultant exoneration of Plaintiff.
26
103. Defendant DOJ, by failing to respond and confess error on this issue
clear innocence.
106. Plaintiff seeks a declaratory judgment against Defendants DOJ and
ATF finding that they improperly lost or destroyed the biological evidence, failed to
follow DNA retention procedures, and failed to maintain the biological evidence and
all records about it.
COUNT VIII
Denial Of Due Process By The Continued Coverup Of Official Misconduct
restated here.
108. 28 USC 1651and18 USC 3600 and DOJ directives on microscopic hair
evidence each give Plaintiff a due process right to be exonerated on grounds of
innocence, manifest injustice, and/or fraud upon the court. In fact, the DOJ
directives state that exoneration in cases that used microscopic hair evidence was
required "in the interest of justice." However, Defendants DOJ and Attorney
General Merrick Garland, by failing to follow these statutes and their intent to
27
correct injustices, has denied Plaintiff due process and continued a coverup of
official misconduct by the Defendants named in this Complaint.
109. By engaging in false statements and accusations against Plaintiff that
he, not the DOJ, engaged in jury tampering, Defendant DOJ has corrupted and
perverted justice. This unethical misconduct deprived Plaintiff of due process to a
fair adjudication of his right to a fair trial and it continued a coverup of official DOJ
misconduct that has lasted more than 40 years.
110. By failing to admit the black letter official misconduct set forth by
Plaintiff, Detective Appleby and Dan Luzadder, and opposing and thwarting any
investigation of that grotesque corruption and misconduct, Defendant DOJ and
Attorney General Garland have deprived Plaintiff of due process to a fair
adjudication of his right to a fair trial and continued a coverup of official DOJ
misconduct that has lasted more than 40 years.
111. Defendant DOJ's actions in covering up this official misconduct has
been done to protect corrupt officials and law enforcement officers, a dishonest,
prevaricating and corrupt juror, and her conspiring husband. This corrupt coverup
has been done at the expense of justice, the entire justice system, the reputation of
honest government officials, and the due process rights of Plaintiff.
clear innocence.
28
114. Plaintiff seeks a declaratory judgment against Defendant DOJ and
Attorney General Merrick Garland finding that they engaged in a continuing
coverup to protect the corrupt Defendants and deny Plaintiff due process and a fair
adjudication of his right to a fair trial..
COUNT IX
Fourth Amendment lliegal Search
restated here.
116. Defendant Brooke Appleby, under color of law, by conducting a multi-
year investigation of Plaintiff, which included warrantless and illegal searches of
his properties, vehicles and aircraft, illegal surveillance of Plaintiff, illegal aerial
and ground photographs of Plaintiffs properties and of Plaintiff alone and with
others, violated Plaintiffs right to be free from illegal searches, and violated his
right to privacy in his properties and personal effects. Defendant Appleby covered
up his illegal searches for approximately 40 years in order to deprive Plaintiff of a
fair trial, right to redress, and right to compensation.
117. The right to unreasonable searches is clearly established.
118. Defendant Brooke Appleby's misconduct resulted in harm to Plaintiff.
29
intentionally, with malice, with reckless disregard to the Fourth Amendment rights
of Plaintiff.
120. As a result of these Defendant's misconduct, Plaintiff suffered great
emotional pain and suffering, and other grievous and continuing injuries and
damages.
121. Plaintiff seeks a declaratory judgment that Defendant Appleby
violated Plaintiffs Fourth Amendment rights, and monetary damages in the
amount of $500,000.
WHEREFORE, Plaintiff Brett Kimberlin respectfully requests that this Court
enter judgment in his favor and against Defendants as requested in each count and
award the requested monetary damages against the named defendants and award
punitive damages as appropriate. In the case of the declaratory judgments against
the DOJ and ATF considered under the Administrative Procedures Act, Plaintiff
requests that the Court's order be directed at Defendant Merrick Garland.
JURY DEMAND
Plaintiff Brett Kimberlin hereby demands a trial by jury pursuant to Federal
Rule of Civil Procedure 38(b) on all issues so triable.
sfl11ft
~:~~~Y
~berlm
8100 Beech Tree Road
Bethesda, MD 2081 7
September 20, 2021 (301) 320-5921
30

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Case 1:21-cv-02506-TWP-MJD Document 1 Filed 09/23/21 Page 1 of 30 PageID #: 1

Case 1:21-cv-02506-TWP-MJD Document 1 Filed 09/23/21 Page 2 of 30 PageID #: 2

and FBI Headquarters require a waiver of defenses, admission of falsity, imputation

of falsity to the government, and exoneration with or without DNA evidence.

gave false testimony as a result.

4. Based in part on the fabricated microscopic hair evidence by ISP, Michael

and Office of Professional Responsibility in 2019, 2020 and 2021.

"Microscopy of Hairs: A Practical Guide and Manual, Federal Bureau of

Investigation, U.S. Department of Justice" (Jan. 1977) p. 41.

(https://www.ncjrs.gov/pdffilesl/Digitization/78957NCJRS.pd:O In 1999, DOJ also

issued a directive to all US Attorneys entitled, "Post Conviction DNA Testing:

Recommendations For Handling Requests" requiring prosecutors to take

"affirmative steps to prevent the destruction of potentially relevant evidence that

policy authorizing the routine destruction of evidence."

https://www.ncjrs.gov/pdffilesl/nij/177626.pdf Despite the DOJ's knowledge about

the unreliability of microscopic hair evidence and the importance of retaining

biological evidence, DOJ and ATF failed to do this in Plaintiffs case.

reviews and exonerated many wrongfully convicted defendants as a result.

8. At least two other wrongfully convicted Indiana defendants spent a combined

allow exoneration with or without the biological evidence.

undermine the fairness of Plaintiffs trial.

14. Detective Appleby testified as a hypnosis expert at Plaintiffs first criminal

time did he mention that he had amassed the huge file.

intentionally false statements during voir dire.

Shirley Henderson repeatedly violated those instructions by having contact with

Detective Appleby maintained a close relationship with Shirley and Donald

relationship between Detective Appleby and Juror Henderson. However, he failed

19. In the spring of 2019, Dan Luzadder, an investigative reporter who

Detective Brooke Appleby. In a series of phone interviews, Detective Appleby made

participant in a jury tampering scheme along with Shirley Henderson, Donald

types of warrantless surveillance.

22. In 2019, Detective Appleby stated to Mr. Luzadder and in a sworn

to ensure that Plaintiff is not exonerated.

or files whatsoever about Plaintiff.

24. Detective Appleby was apparently engaged in a multi-year rogue

investigation of Plaintiff while employed by the ISP, and was conducting

surveillance of Plaintiff, taking photographs of Plaintiff and others with him,

engaged in jury tampering during Plaintiffs trial.

26. Detective Appleby, Shirley Henderson, Donald Henderson, Patrick Donovan,

culpability is Detective Appleby, and he did so under oath in a federal court

has continued to coverup this corrupt scheme throughout Plaintiffs post-conviction

Donald Henderson and Patrick Donovan were engaged in misconduct, jury

tampering, false statements, and fabrications in order to wrongfully convict

Plaintiff. However, AUSA Foster intentionally ignored, assisted and approved of

29.Absent the misconduct of Detective Appleby, Shirley Henderson, Donald

30. The misconduct of Detective Appleby, Shirley Henderson, Donald Henderson,

the integrity of the court.

wrongfully arrested and convicted. He was arrested, prosecuted and convicted

because Detective Appleby, Shirley Henderson, Donald Henderson, Patrick

Donovan, and Kennard Foster were hellbent on ensuring that Plaintiff be

imprisoned for their own unethical reasons.

to engage in meaningful labor, to travel, and live free as an autonomous human

sister's weddings and the births of their children.

falsely branded as a violent offender. He was repeatedly moved to different prisons

repeatedly placed in solitary in seven different prisons. He witnessed gratuitous

rebuild his life outside of prison.

37. The misconduct committed by Detective Appleby, Shirley Henderson, Donald

was undertaken intentionally, with malice, with reckless indifference to Plaintiffs