The case is Hicks v. Marchman, a summary order decided on January 5. This appeal arrives in a Rule 12 posture, which means a well-pleaded complaint can survive a motion to dismiss even if the case ultimately fails on a motion for summary judgment.
Plaintiff alleges "that the officers used impermissibly suggestive identification procedures to encourage the victim, T.T., to identify Hicks as her assailant from a photographic array and then failed to disclose the use of those suggestive procedures to the District Attorney’s Office." That allegation is not enough to pursue a claim like this, "because the state criminal court assumed the
procedures were suggestive, excluded the resulting identification, and determined that there was an independent basis for T.T.’s later identifications of case that he relied on in his complaint." But the complaint goes further than that. Plaintiff also claims
(1) a detective deliberately gave T.T. prejudicial information about Hicks during the photo array procedure and hid this misconduct from the court and prosecutors; (2) the officers lied to the prosecutors that Hicks had bragged about being the “Bronx Rapist” and that Hicks’s mother told them that Hicks was the person depicted in the sketch T.T. had created; (3) Hicks’s parole officer ultimately refused to credit T.T.’s identification of Hicks after interviewing T.T.; (4) the officers failed to preserve the photographic array from which T.T. identified Hicks; and (5) two other victims were unable to identify Hicks. In view of Hicks’s ultimate exoneration, these allegations together raise a plausible inference that the officers fabricated information that was likely to influence a jury’s verdict and that they forwarded that information to the prosecutors. Hicks has also adequately alleged that he was arrested as a result of the fabricated information and that the information influenced the prosecutors’ “decision to pursue charges rather than to dismiss the complaint without further action[.]”Since plaintiff was ultimately exonerated, these allegations raise a plausible inference that the officers fabricated information that was likely to influence the jury's verdict and that they forwarded that information to the prosecutors. The case will proceed to discovery.