George and Melvin DeJesus were convicted of murdering their neighbor Margaret Midkiff in 1997. After their convictions were vacated in 2022, the brothers filed a civil rights suit against William Harvey, a former sergeant at the Oakland County Sheriff's Department, and retired polygraph examiner Chester Romatowski, accusing them of fabricating evidence that wrongfully landed the DeJesuses behind bars.
Harvey and Romatowski said they relied on eyewitness identification from Brandon Gohagen, who had admitted to sexually assaulting Midkiff but told law enforcement the DeJesus brothers killed her. Prosecutors were told Gohagen had passed a polygraph exam, but the results were later found to be inconclusive.
At a hearing in Flint, Michigan, Robert C. Clark of Potter DeAgostino & Clark, counsel for Harvey and Romatowski, argued they are entitled to summary judgment because eyewitness identification alone was sufficient to establish probable cause during the trial, and thus the disputed polygraph is irrelevant
The DeJesus brothers' attorney, Wolfgang Mueller of Mueller Law Firm, countered that although the polygraph results were not admitted at trial, they were central to the case and prosecutors' decision to charge the brothers.
U.S. District Judge Shalina D. Kumar took the matter under submission to issue a written ruling later.
The brothers were convicted of first-degree murder and sentenced to life without parole in 1997 in the death of Midkiff. After years of appeals, their cases were taken up by innocence organizations and reviewed by the Michigan attorney general's Conviction Integrity Unit.
Their convictions were vacated March 22, 2022, after nearly 25 years in prison. They have alleged that fabricated evidence, as well as malicious prosecution, civil conspiracy and Brady violations, led to their convictions. They are seeking at least $50 million in damages.
Investigators and prosecutors considered Gohagen's confession and other evidence, Clark told the court, asserting that the prosecution of the DeJesuses was not solely based on the polygraph.
The attorney said the brothers' fabrication claim can't be based on a polygraph because the test results were never shown to the jury and polygraph conclusions are inherently subjective.
The brothers contend that Harvey, who handled the investigation, secured a favorable plea arrangement for Gohagen for the sexual assault that depended on him implicating them and passing a polygraph.
Harvey, the brothers said, then turned to Romatowski, a retired Michigan State Police polygraph examiner, and the two agreed to make sure Gohagen passed the polygraph so that prosecutors would charge the DeJesuses.
The brothers also alleged Harvey suppressed handwritten police notes tied to two alibi witnesses.
Clark said that assertion is false because Harvey's notes were undated and were not in his handwriting and may have originated with Pontiac police, which handled the case earlier in the investigation.
Clark also argued the brothers' civil conspiracy claim fails because there is no evidence Harvey and Romatowski had any agreement to frame the brothers, telling the judge it was routine coordination between an investigator and a polygraph examiner.
The Mueller, urged the court to deny the defense motion in full, stressing the case is at the Rule 56 stage, where the evidence and all reasonable inferences must be viewed in the plaintiff's favor.
The record supports a jury finding that Harvey and Romatowski agreed to make sure Gohagen passed the polygraph because both men knew prosecutors would not move forward otherwise, the brothers' lawyer said.
Mueller pointed to testimony that Harvey considered Romatowski an ethical and competent examiner who would not have fabricated results on his own, asserting that a jury could infer that any false report must have stemmed from an agreement between them.
The prosecutor wouldn't have charged the brothers if Gohagen had failed the test, Mueller said, meaning the alleged false report set the prosecution in motion and allowed Gohagen to become the key witness at the preliminary examination and trial.
The plaintiff's expert found the polygraph conclusion could not be chalked up to a simple mistake, Mueller said, pointing to intentional misrepresentation, which creates a factual dispute for a jury.
The Brady claim should proceed, Mueller added, because Conviction Integrity Unit attorney Lori Montgomery testified the disputed alibi notes were found in the Oakland County Sheriff's Office file, when the trial prosecutor testified she was unaware of them.
The DeJesus brothers are represented by Wolfgang Mueller and John W. Martin Jr. of Mueller Law Firm.
Harvey and Romatowski are represented by Robert C. Clark, Layla Sizemore, Steven M. Potter and Trevor S. Potter of Potter DeAgostino & Clark.
The case is DeJesus et al. v. Harvey et al., case number 2:22-cv-12879, in the U.S. District Court for the Eastern District of Michigan.
--Editing by Covey Son.
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