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Tenth Circuit: No Absolute Immunity for Prosecutor Who Fabricated Evidence

by Douglas Ankney

The U.S. Court of Appeals for the Tenth Circuit affirmed a district court’s decision that a prosecutor does not enjoy absolute immunity from suit for fabricating evidence during a preliminary investigation.

In November 1999, 14-year-old C.A. was reported missing by Floyd Bledsoe. C.A. was the younger sister of Floyd’s wife and had been living with the couple.

Two days later Tom Bledsoe, Floyd’s older brother, confessed to raping and murdering C.A. Tom had a limited social life and had some intellectual limitations. He was 25 years old, lived with his parents, and remained an active participant in his church’s Sunday School program for children. Tom first confessed to his Sunday School teacher, leaving messages on the teacher’s answering machine stating, “I know where [C.A.] is,” “I’m going to turn myself in to the police,” and “I will pay for the rest of my life.” Tom also called his parents, confessed to killing C.A., and told them he was turning himself in to the police. Tom and his attorney met that same day with the Jefferson County Sheriff’s Department where they informed officers that Tom had shot C.A. in the back of the head and buried her in a trash dump on his parents’ property. Tom led police to C.A.’s body. She had been shot several times in the torso and in the back of the head. Semen was found in her vagina. Near her body, investigators recovered three bullet casings, a pornographic video, and a tee-shirt with the printed name of Tom’s church. Tom’s attorney also surrendered a handgun that was the professed murder weapon. Tom was charged with first-degree murder.

But, in spite of this evidence, Jim Vanderbilt — the prosecuting attorney at the time — along with Tom’s attorney and several other unspecified individuals, hatched a plan to frame Floyd for the crime. First, they talked Tom into recanting his confession. Second, they persuaded Tom to claim Floyd confessed the crime to him the day after C.A.’s disappearance. Third, they convinced Tom to say that Floyd bullied him into falsely confessing by threatening to expose that Tom watched pornographic videos, masturbated, and tried to have sexual intercourse with a dog. Tom and Floyd both took polygraph examinations. Floyd disavowed any involvement in the crime. Tom provided the false recantation and implicated Floyd as the perpetrator. However, Tom failed the question, “Did you kill [C.A.]?” That evening, Vanderbilt released Tom, dropped the charges against him, and arrested Floyd. Vanderbilt offered Floyd a plea deal of five years in prison. Floyd rejected the offer, went to trial, was convicted, and was sentenced to life plus 16 years in prison.

Fifteen years later, new forensic testing excluded Floyd as the contributor of semen found in C.A.’s vagina but indicated Tom was the most likely source. Tom committed suicide shortly thereafter. He left a note stating: “I sent an innocent man to prison. The Jefferson County police and ... Jim Vanderbelt made me do it. I was told by Vanderbelt to keep my mouth shut. Now I am going to set thing right. I killed [C.A.] on November 5, 1999. I had sex with her and I killed her.... I raped and murdered a 14 year girl. I tried telling the truth but no one would listen. I was told to keep my mouth shut.... Floyd S Bledsoe is innocent man. Tom E Bledsoe is the guilty one.” In addition to the note, Tom left a diagram showing the location where he shot C.A. before carrying her to the dump sight. Investigators recovered a fourth bullet casing at the location.

Floyd’s conviction was vacated, and the Jefferson County Attorney dismissed all charges against him.

Floyd then brought a 42 U.S.C. § 1983 suit against Vanderbilt for depriving him of a fair trial by fabricating Tom’s testimonial inculpation of Floyd that resulted in Floyd’s unjust conviction and for conspiring with others to frame him by fabricating evidence. Vanderbilt argued to the district court that prosecutorial immunity shielded him from suit. The district court disagreed, and Vanderbilt appealed.

The Tenth Circuit observed “[p]rosecutors generally enjoy absolute immunity from suit for activities that are ‘intimately associated with the judicial phase of the criminal process.’” Imbler v. Pachtman, 424 U.S. 409 (1976). But absolute immunity doesn’t apply when a prosecutor is engaged in administrative or investigative tasks. Van de Kamp v. Goldstein, 555 U.S. 335 (2009).

Absolute immunity does not protect the act of fabricating evidence during the preliminary investigation of a crime. Buckley v. Fitzsimmons, 509 U.S. 259 (1993). This is because the prosecutor cannot properly claim to be acting as advocates in the judicial phase when performing such acts but is more akin to detectives in searching for clues or corroboration to give probable cause to have a suspect arrested. Id. Since a detective would be entitled to only qualified immunity when fabricating evidence, a prosecutor who does the same is only protected by qualified immunity. Id.

The Tenth Circuit determined that the principles of Buckley compelled them to conclude Vanderbilt was not entitled to absolute immunity from suit. Accordingly, the Court affirmed the decision of the district court denying absolute immunity. See: Bledsoe v. Vanderbilt, 2019 U.S. App. LEXIS 24493 (10th Cir. 2019). 

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