Solomon and Warman ask the 3rd Circuit to review a federal court’s decision
Two former Fayette County prosecutors are asking the Third Circuit Court of Appeals to review the decision of a federal judge who rejected their claim that they should be immune from civil liability in a malicious prosecution suit.
David Munchinski, formerly of Latrobe, is suing Senior Judge Gerald R. Solomon and retired Senior Judge Ralph C. Warman, who were District Attorney and Assistant District Attorney respectively when Munchinski was convicted of double murder in 1986.
Munchinski, now 61, spent 27 years in prison for the murders of James Alford and Peter Gierke, who were raped and killed on Dec. 2, 1977 in Bear Rocks in Bullskin Township. His convictions were later overturned based on evidence of prosecutorial misconduct.
Represented by attorney Noah Geary, Munchinski argued in a complaint filed in September 2013 that his due process rights were violated when, among other things, Solomon and Warman failed to preserve a taped statement from star witness Richard Bowen, who allegedly told prosecutors in a September 1982 interview that he had no knowledge of the Bear Rocks murders.
In a subsequent statement, Bowen said he witnessed Munchinski and another man, Leon Scaglione, rape and murder Alford and Gierke, providing a specific, graphic account of how and why the men died.
Solomon and Warman argue in their appeal to the Third Circuit that federal District Judge David Cercone misinterpreted Munchinski’s allegation about the tape, and therefore erred in his decision to deny the prosecutors’ motion to dismiss the case.
Cercone found Solomon and Warman could claim prosecutorial immunity on allegations they withheld exculpatory evidence, but they “never enjoy immunity for deliberately destroying” such evidence.
“There is a vast difference between failing to preserve evidence and intentionally and deliberately destroying evidence,” wrote Thomas Pellis, attorney for Solomon and Warman.
He went on to say courts balance the distinction on the principle of bad faith, meaning if the tape had been intentionally destroyed, that would clearly show an intent to suppress evidence, as opposed to failing to preserve it, which does not demonstrate the same ill intent.
“Munchinski’s allegations here do not show that the prosecutors deliberately destroyed the tape, used the police as their proxies to make the tape vanish, or sabotaged the case by removing evidence immediately before trial,” Pellis stated. “Rather, the allegation states that the prosecutors simply failed to preserve a tape recorded statement.”
Pellis explained the nature of prosecutorial immunity.
“Absolute immunity protection is not based on any special esteem for those who perform prosecutorial functions, and certainly not from a desire to shield abuses of office, but because any lesser degree of immunity could impair the judicial process itself.”
A prior US Supreme Court decision, he wrote, “recognized that it is, in the end, better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.”
Because Cercone found that the two prosecutors were immune from claims they withheld evidence, Pellis reasoned, he should have ordered the removal of those allegations from the complaint.
“Furthermore, Munchinski’s allegations regarding the content of the September 1982 tape and the prosecutors’ perception of the interview is pure speculation, and the allegations are insufficient to show the tape was exculpatory,” Pellis wrote.
Munchinski doesn’t claim he was there during the first interview, nor does he allege he ever saw or heard the tape, Pellis argued. Since the tape can’t be found, there’s no way to analyze it, and the only two people still alive who were witnesses to the interview are Solomon and Warman, he added.
“Munchinski alleges that, but for the prosecutors’ act of withholding exculpatory evidence, he would have been found not guilty and acquitted of all charges, Pellis wrote.
However, he argued, the full record shows Bowen’s account was corroborated by four other witnesses who testified they heard Munchinski confess to his role in the murders.
Pellis additionally asked the Third Circuit to immediately review Solomon and Warman’s claim of immunity under the Eleventh Amendment, on the basis that Cercone failed to address the issue at all in this order denying their motion to dismiss the case.
“The Eleventh Amendment renders states immune from suits brought in federal courts by private parties without the state’s consent, and bars federal court suits for money damages against state officers in their official capacities,” Pellis wrote. He contended the language of the complaint, although it names Solomon and Warman in their individual capacities, seeks to hold them liable in their official capacities.
“Clearly, Munchinski is looking to the treasury of the Commonwealth of Pennsylvania as the ultimate source of the funds to pay his damage via indemnification of the prosecutors,” wrote Pellis.
He concluded by offering the following warning: “If this case continues and goes to trial . . . it will become a virtual retrial of the 1977 Bears Rocks murder case,” a result inconsistent with the guidance of federal caselaw.