Case 1:19-cv-01032-PLM-PJG ECF No. 220, PageID.

3931 Filed 09/01/23 Page 1 of 19

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

RAYMOND E. MCCANN, II,

Plaintiff
No. 1:19-cv-1032
v
HON. PAUL L. MALONEY
BRYAN FULLER; Special Representative for
the ESTATE of JAMES BEDELL; MARCUS MAG. JUDGE PHILLIP J. GREEN
DONKER; MICHAEL SHANE CRIGER;
VILLAGE OF CONSTANTINE; and as-yet
UNKNOWN OFFICERS OF THE MICHIGAN
STATE POLICE, CONSTANTINE POLICE
DEPARTMENT;

Defendants.

Russell Ainsworth Eric M. Jamison (P75721)

Frank Newell Mark E. Donnelly (P39281)
Rachel Brady Attorneys for Defendant Fuller
Annie Prossnitz Michigan Dep’t of Attorney General
Attorneys for Plaintiff State Operations Division
Loevy & Loevy P.O. Box 30754
311 N. Aberdeen Street, 3rd Floor Lansing, MI 48909
Chicago, Illinois 60607 (517) 335-7573
(312) 243-4900 jamisone@michigan.gov
drury@loevy.com donnellym@michigan.gov
frank@loevy.com
brady@loevy.com
____________________________________

DEFENDANT’S TRIAL BRIEF

Eric M. Jamison
Assistant Attorney General
Attorney for Defendant
State Operations Division
P.O. Box 30754
Lansing, MI 48909
(517) 335-7573
Dated: September 1, 2023 P75721
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STATEMENT OF FACTS

Background

This case arises from tragic circumstances. A young child was abducted,

sexually assaulted, and murdered. Her wrists were bound, and a plastic bag was

placed over her head, suffocating her to death on November 8, 2007, in the small

town of Constantine, Michigan. But, although this background is tragic, it is not

the crux of Plaintiff Raymond McCann’s case. Rather, his case—and the facts that

the jury will be asked to decide—is premised on whether a different investigation

for perjury violated Plaintiff’s Fourth and Fourteenth Amendment rights and the

common law doctrine of malicious prosecution. At trial, Defendant will show that it

did not.

The murder investigation

After 11-year-old Jodi Parrack did not return home at dinnertime on

November 8, 2007, her family was worried and began searching for her. They

contacted the police and drove around town trying to locate her. Plaintiff

volunteered to assist with the search after her family came to his house looking for

Jodi. She was found dead in the local cemetery late that evening.

Plaintiff was a suspect from the beginning. He was interviewed on the night

of the murder and was given two polygraphs in the following weeks—one was

inconclusive and the other one he failed. However, there was foreign DNA found on

Jodi, but it did not connect McCann, or anyone else to the crime. The case went cold

after several years.

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In early 2011, the Michigan State Police (MSP) assembled a cold case team to

investigate Jodi’s murder. The team was led by Detective Shane Criger and

consisted of three other MSP members, including Defendant Trooper Bryan Fuller.

Defendant was assigned to investigate Plaintiff as a possible suspect, along with

other suspects. As part of his investigation into Plaintiff’s possible involvement in

the murder, on March 15, 2011, Defendant interviewed Plaintiff voluntarily for

approximately 44 minutes. Plaintiff was voluntarily interviewed again on April 19,

2011, for approximately two hours. Plaintiff also voluntarily rode with Defendant

for about an hour and twenty minutes in June 2011, to show Defendant the route he

took while he was out searching for Jodi. Plaintiff was then voluntarily

interviewed twice in July 2011 – once for about an hour and forty minutes, and once

for about two hours and fourteen minutes. In the second July 2011 interview,

Plaintiff was pressed about his possible involvement in Jodi’s death, and, as a

result, he got up and left the interview.

At some point during the cold case team investigation, Criger and Defendant

discussed Defendant being too focused on Plaintiff as a murder suspect. Criger told

Defendant to move on, and he did.

The investigative subpoena and perjury investigation

Ultimately, however, the investigation in Jodi’s murder continued.

Specifically, in July 2012, Prosecutor John McDonough, after consulting with the

cold case team, filed a petition for authorization for an investigative subpoena for

Plaintiff to testify under oath because he believed Plaintiff was being untruthful.

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In the petition, which was reviewed and approved by Judge William Welty,

Prosecutor McDonough identified the following as the basis for the petition:

o Plaintiff failed two polygraphs and one was inconclusive;

o The timing of when Plaintiff said he left his house and when he
appeared at D&S market was inconsistent;

o Plaintiff’s suggestions to check the cemetery;

o Plaintiff’s statements about the sequence of events at the cemetery;

o The injuries to Jodi’s wrists, which were possibly consistent with

handcuff impressions and statements from Plaintiff’s good friend that
he believed Plaintiff had more than one set of handcuffs; and

o Plaintiff stating in November 2010 that he believed he saw Jodi

deceased in the backseat of a vehicle while he was out searching for
her, and this information was not previously disclosed to investigators.

Plaintiff was represented by counsel during the investigative subpoena

interview in September 2012, and Prosecutor McDonough questioned him under

oath. Significantly, Plaintiff testified to the following: (1) during a phone call,

Officer Marcus Donker of the Constantine Police Department told Plaintiff to meet

at the Tumble Dam path; (2) Plaintiff went to the Tumble Dam path after his

telephone call with Donker; (3) during the search for Jodi, Plaintiff though he saw

her in her mother’s vehicle and said, “oh good, you found her,” but Jodi’s mother

explained that it was a different child in this vehicle; (4) after Jodi’s body was

found, her mother ran to Plaintiff and hugged him; (5) when Plaintiff went to the

D&S Market, he told the clerk that he was looking for a missing child; and (6) when

Plaintiff spoke with Donker at Cannon Park, they had a conversation about

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Plaintiff’s firearm, which Plaintiff said was in his truck even though it was really at

his side.

Ultimately, Plaintiff was never charged with murder because there was no

probable cause to charge him. Further, Prosecutor McDonough explained that the

DNA did not match and that was the primary reason he was not charged with

murder. The cold case team exhausted their leads and were unable to solve the

murder, so they eventually disbanded in late 2013 or early 2014.

The perjury investigation

Despite the cold case team disbanding, Defendant began pursuing perjury

charges against Plaintiff in February 2014 because of Plaintiff’s investigative

subpoena testimony.

In April 2014, Defendant swore to an affidavit of probable cause, which he

provided to Prosecutor McDonough, who subsequently authorized an arrest warrant

and one charge of perjury.

Defendant’s affidavit included most of the same facts as the petition for

investigative subpoena did, plus numerous other facts that were proffered to

support probable cause. For example, the affidavit included the following:

• Reference to Plaintiff’s suggestions to check the cemetery;

• Information regarding the time lapse between when Plaintiff left his
house and when he arrived at D&S market;

• Information regarding the injuries to Jodi’s wrists that were consistent

with the application of handcuffs and evidence to suggest that Plaintiff
had a second set of handcuffs; and

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• Statements regarding the sequence of events during the search.

Defendant also indicated that there were additional facts that could support

probable cause but were not part of the affidavit. In particular, Defendant noted

that he could have also included in the affidavit Plaintiff’s own statements about

possibly seeing Jodi in the backseat of the mother’s car while everyone was out

looking for her.

Crucially, the prosecutor testified that “[h]ad the magistrate not signed it

[the arrest warrant based on Defendant’s affidavit of probable cause], it would have

been amended so that it could establish probable cause; or I would have said

[Defendant] or other officers, in my opinion I believe that probable cause exists

based on what you have told me. You may go arrest Mr. McCann on probable

cause.” Prosecutor McDonough testified that he looked at far more than just what

was in Defendant’s affidavit of probable cause when he decided to charge Plaintiff

with perjury.

In April 2014, Plaintiff was charged with one generalized count of perjury.

Thereafter, the charges were amended to include five specific counts of perjury. The

five counts were premised on the following:

• making false statements about Plaintiff’s conversation with a D&S

employee;

• making a false statement about a conversation with Officer Marc

Donker about his service weapon;

• making a false statement to Officer Marc Donker regarding meeting at

the Tumble Dam path;

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• making false statements about physical contact with Jo Gilson (Jodi’s

mother); and

• making a false statement about seeing a child in the backseat of a

motor vehicle.

On July 9, 2014, a preliminary exam was held related to the perjury charges.

Plaintiff was represented by counsel and there were four witnesses – Helena

Baldwin, the clerk from D&S market that was working on the night Jodi went

missing and who had a conversation with Plaintiff; Marc Donker, the officer who

was on duty the night that Jodi went missing and who had several conversations

with Plaintiff; Valerie Jo Gilson, Jodi’s mother; and Defendant. After hearing from

the witnesses and subjecting them to cross examination, the matter was bound over

for trial.

On February 11, 2015, Plaintiff accepted a plea offer and pleaded no contest

to count three in exchange for dismissal of the other four counts. One month later,

Plaintiff was sentenced to twenty months to twenty years, which included 336 days

credit for time already served in the county jail post arrest and pre-conviction.

Plaintiff was released from custody on December 17, 2015, after serving an

additional nine months in prison.

Daniel Furlong confesses to Jodi’s murder

In August 2015, Daniel Furlong lured a child into his garage and tried to

assault her. That child was able to escape, and she informed the police. The police

matched Furlong’s DNA to the DNA found on Jodi. On October 18, 2015, Furlong

confessed to killing Jodi and he indicated that Plaintiff had nothing to do with it.

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Plaintiff seeks relief from his perjury conviction

After serving the minimum sentence, Plaintiff was released from prison on

December 17, 2015. In June 2017, Plaintiff filed a motion seeking relief from

judgment, which the prosecutor stipulated to in December 2017. The prosecutor

explained in detail that the reason that he stipulated to dismiss the charges against

Plaintiff was because of something that Defendant thought he uncovered while he

was re-examining the creamery surveillance video as part of the proceedings for the

relief from judgment.

In particular, while Defendant was reexamining the video, he thought he

noticed a light that possibly could have been Plaintiff’s truck lights while he was

near the Tumble Dam path area. Defendant thought that the light was there for

several minutes around the time Plaintiff said he was there. Notably, the attorney

who represented Plaintiff during the preliminary exam had a copy of the video and

did not play the video during the preliminary exam.

If Defendant had not made that discovery, the prosecutor would not have

stipulated to dismiss the charges and the prosecutor believed that it would have

been very difficult for Plaintiff to get relief since this was a plea deal rather than a

conviction by a jury.

Plaintiff’s lawsuit

In his second amended complaint, Plaintiff seeks redress under 42 U.S.C. §

1983 and Michigan law for alleged wrongdoing that occurred during the perjury

investigation. Only three claims remain against a single defendant—Defendant

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Fuller: (1) Fourth Amendment (malicious prosecution); (2) Fourteenth Amendment

(Due Process); and (3) state-law malicious prosecution.

ARGUMENT

I. Plaintiff will be unable to establish that Defendant maliciously

prosecuted Plaintiff.

Plaintiff brings two malicious prosecution claims—one under the Fourth

Amendment and one under state-law. Neither will prevail at trial.

A. Plaintiff will not prevail on his federal malicious prosecution

claim against Defendant.

To establish his federal malicious prosecution claim, Plaintiff must prove the

following: (1) that a criminal prosecution was initiated against him, and that the

defendant made, influenced, or participated in the decision to prosecute; (2) that

there was a lack of probable cause for the prosecution; (3) that the plaintiff suffered

a deprivation of liberty; and (4) that the prosecution terminated in plaintiff’s favor.

Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010).

Here, Plaintiff’s malicious prosecution claim will fail for two reasons. First,

even absent any alleged false or omitted statements in Defendant’s affidavit, there

was probable cause for Plaintiff’s perjury charges. And given that there was

probable cause, any purportedly false or omitted statements are immaterial to those

charges. And second, Defendant is entitled to qualified immunity.

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Starting with the first reason, “[p]robable cause to arrest someone exists if

‘the facts and circumstances within the officer's knowledge and of which he had

reasonably trustworthy information were sufficient to warrant a prudent man in

believing that the arrestee had committed or was committing an offense.’ ” Atkins

v. Twp. of Flint, 94 F. App’x 342, 347 (6th Cir. 2004) (quoting Diamond v. Howd,

288 F.3d 932, 936-37 (6th Cir. 2002)).

However, “[f]ailure to include all exculpatory facts is not adequate to sustain

a suit for malicious prosecution.” Hall v. Navarre, No. 21-12970, 2023 WL

4424245, at *11 (E.D. Mich. July 10, 2023) (citing Payton v. Detroit, 211 Mich. App.

375, 395 (1995)). What is required is evidence that gives rise to an inference that

the defendant knowingly included false facts in his affidavit, without which facts

the prosecutor could not have concluded there was probable cause. Id. As

explained above, a judge already found that there a reasonable cause to question

Plaintiff.

The prosecutor, who was very familiar with the case, decided to charge

Plaintiff with five counts of perjury: (1) making false statements about Plaintiff’s

conversation with a D&S employee; (2) making a false statement about a

conversation with Officer Marc Donker about his service weapon; (3) making a false

statement to Officer Marc Donker regarding meeting at the Tumble Dam path; (4)

making false statements about physical contact with Jo Gilson (Jodi’s mother); and

(5) making a false statement about seeing a child in the backseat of a motor vehicle.

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Four of these counts were based on Plaintiff’s testimony, and the statements of

other witnesses.

At trial, Plaintiff will likely argue that there was not probable cause to

establish that he committed perjury because the differences between Plaintiff’s

testimony and the statement of others should be chalked up to poor memories or

credibility issues. However, the court heard all that testimony at the preliminary

examination, and Plaintiff had the opportunity to challenge the witnesses’

memories and credibility, and the judge still found that there was probable cause to

bind Plaintiff over for trial.

Notably, the fifth count is based solely on Plaintiff’s own statements and

testimony. Even now, Plaintiff cannot explain why he did not bring up the fact that

he thought he saw Jodi in the back seat of the mother’s car while they were out

looking for her. When Plaintiff was interviewed at approximately 2:00 a.m., a few

hours after Jodi’s dead body was found in the cemetery, it would have been a good

time to bring up the fact that he thought Jodi was in the back seat of the mother’s

car a few hours earlier while everyone was looking for her. Perhaps he was in

complete shock and could not process what just happened because it was so

traumatic and it was never the outcome anyone expected in such a small town.

But a few days later Plaintiff was interviewed again for his polygraph. He

had a lengthy, video recorded, polygraph examination. That would have been a

good time to bring up the fact that he thought he saw Jodi and that he thought

those standing near the car were trying to block his view into the car. Plaintiff

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never mentioned possibly seeing Jodi during the search when everyone was out

looking for her. Again, maybe he was still in shock. Jodi’s funeral was that same

day and apparently, Plaintiff took it very hard.

Then a few weeks later, Plaintiff was given another polygraph. Again, he

said nothing about possibly seeing Jodi in the back seat of Jodi’s mother car while

everyone was out looking for her. That seems like that would have been a good time

to bring it up.

Plaintiff apparently waited until late 2010 to bring up the fact that he

thought he saw Jodi in the back seat of the car. Years had lapsed. This was just

before the cold case team was brought in to take over the investigation.

Logically, Defendant could not make heads or tails of Plaintiff’s strange

statements and testimony, including Plaintiff’s admissions that he was untruthful

at least twice on the night of Jodi’s death regarding where his gun was. It was not

particularly relevant whether Plaintiff’s gun was on his side or under his seat, but

the fact remains that Plaintiff was untruthful. Being untruthful obviously makes it

harder for the detectives to decipher which of Plaintiff’s statements are truthful,

and they had to spend time investigating them. Especially, in a cold case where any

apparent leads were already investigated, Plaintiff’s bizarre statements only

brought more attention to himself. Ultimately, Defendant concluded that he had

enough to clear the low bar of probable cause for perjury, and the prosecutor and

the fact finder could determine whether Plaintiff had in fact perjured himself.

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Here, Prosecutor McDonough testified that if the magistrate had rejected

Defendant’s affidavit for probable cause for perjury, he would have had Defendant

amend his affidavit, or he simply could have directed a police officer to arrest

Plaintiff because he believed that Plaintiff perjured himself. In other words, even if

Defendant did not submit the affidavit, Prosecutor McDonough had already

exercised his independent discretion to charge Plaintiff with perjury.

As to the second reason Defendant should prevail at trial, he is entitled to

qualified immunity on the Fourth Amendment claim. Significantly, even if

Defendant provided inaccurate testimony, “false testimony is not actionable as

malicious prosecution unless deliberate—i.e., given with knowledge or, or reckless

disregard for, its falsity.” Johnson v. Moseley, 790 F.3d 649, 655 (6th Cir. 2015).

Indeed, “[a]llegations of negligence or innocent mistakes are insufficient.”

Robertson v. Lucas, 753 F.3d 606, 617 n7 (6th Cir. 2014) (citation omitted).

When Plaintiff’s allegations are evaluated in light of this clearly established

law, they will fail to pass muster at trial. Defendant will testify that, at the time he

pursued the perjury charged against Plaintiff, he believed his statements were

truthful. And Defendant’s interpretation of the Creamery Video are, at most,

negligence or an innocent mistake. In any event McCann’s defense attorney had

the video and should have examined it and come to his own conclusions about what

it depicted, especially since McCann is the only one who actually knows where he

went that night. Further, as noted above, Prosecutor McDonough will testify that

he, too, believed Plaintiff repeatedly perjured himself irrespective of the Creamery

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video, which demonstrates the good-faith nature of Defendant’s action. For these

reasons, Defendant’s alleged false testimony was not deliberate—Defendant was

just trying to do his job.

In sum, probable cause existed to charge Plaintiff with perjury. This is true

regardless of whether the allegedly false or omitted statements are considered.

Moreover, because any alleged mistaken or false evidence provided was not

deliberate, Defendant is entitled to qualified immunity. Accordingly, Plaintiff

cannot demonstrate his Fourth Amendment claim, and Defendant is entitled to

dismissal.

B. Plaintiff will not succeed on his state-law malicious

prosecution claim against Defendant.

For the reasons explained above, Plaintiff cannot establish his state-law

malicious prosecution claim. And malicious prosecution claims under state-law

require one additional element: that Defendant initiated or continued the

proceeding with malice or a primary purpose other than that of bringing an offender

to justice. M Civ JI 117; Walsh v Taylor, 263 Mich App 618, 632-33 (Mich. 2004)

(explaining that a plaintiff must demonstrate that “the action was undertaken with

malice or a purpose in instituting the criminal claim other than bringing the

offender to justice”). Plaintiff will also be unable to demonstrate this additional

element at trial, and thus, the jury should return a verdict for no cause of action.

There will be no evidence that Defendant was motivated by anything other than to

see justice done.

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Ultimately, Plaintiff had a long list of bizarre statements that didn’t match

objective evidence and didn’t match with other witness statements. On the night of

the murder before Jodi was found dead, Plaintiff lied to Officer Donker about where

his gun was located. Later that night after Jodi’s body was found, Plaintiff repeated

the same lie about the location of his gun to another police officer. Plaintiff

admitted at his deposition and during his investigative subpoena testimony that he

lied when he was asked a question that shocked him or threw him off. Defendant

made the reasonable assumption that Plaintiff was not being truthful and he wrote

an affidavit to establish that there was probable cause that Plaintiff perjured

himself. What is more, if Defendant had any sort of malice towards Plaintiff it

defies logic that he would have reexamined the Creamery video when Plaintiff was

seeking relief from judgment and bring it to the prosecutor’s attention that he

thought he noticed a light in the video that could have been Plaintiff’s truck lights

near the tumble dam path.

For these reasons and those stated in Part I(A), Plaintiff will be unable to

succeed on his state-law malicious prosecution claim.

II. Plaintiff will be unable to establish his Due Process claim at trial.

“Under the Due Process Clause of the Fourteenth Amendment, criminal

prosecutions must comport with prevailing notions of fundamental

fairness.” California v. Trombetta, 467 U.S. 479, 485 (1984); Lisenba v.

California, 314 U.S. 219, 236 (1941); Moldowan v. City of Warren, 578 F.3d 351, 379

(6th Cir. 2009).

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To prevail on a Due Process claim for fabrication of evidence, a plaintiff must

show: (1) that the defendant knowingly fabricated evidence against the plaintiff,

and (2) that “there is a reasonable likelihood” that the fabricated evidence affected

the outcome of the proceedings. Stemler v. City of Florence, 126 F.3d 856, 872 (6th

Cir. 1997); see also Avery v. City of Milwaukee, 847 F.3d 433, 439 (7th Cir. 2017)

(explaining that “[w]hat’s relevant is not the label on the claim, but whether the

officers ‘created evidence that they knew to be false.’ ”) (internal citation omitted).

Here, Plaintiff will not be able to establish that there was a Due Process

violation for two reasons. First, for the reasons explained in Parts I(A) and (B),

Defendant did not knowingly or otherwise fabricate evidence. At best, Defendant

misinterpreted evidence that was available to Plaintiff and his attorney. At all

times relevant to the investigation and prosecution of Plaintiff, Defendant acted

with good faith.

Second, also as explained above, even if we accept Plaintiff’s assertions that

some information in Defendant’s affidavit was knowingly fabricated, which it was

not, there is not a reasonable likelihood that the outcome would have changed. The

investigation subpoena was authorized based on largely uncontested facts, and

Plaintiff was bound over based on largely uncontested testimony. To be sure,

Plaintiff will argue that the testimony of those that testified at the preliminary

exam should be disregarded for various reasons, but Plaintiff was afforded his Due

Process rights at that hearing. For example, Plaintiff will likely argue that Jodi’s

mother was hysterical at the cemetery shortly after finding Jodi, and any

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statements she made about whether she had any physical contact with Plaintiff at

the cemetery should be disregarded. Plaintiff had the opportunity to challenge

Jodi’s mother’s testimony when she was on the stand at the preliminary exam.

Plaintiff will also likely argue that Donker’s statements about conversations

he had with Plaintiff are unreliable because he didn’t make contemporaneous notes

during his search for Jodi, and when he did make notes, the notes have

discrepancies between other statements or information. Plaintiff had the

opportunity to challenge Donker’s memory, or the fact that Donker didn’t make

contemporaneous reports while he was searching, when he was on the stand for the

preliminary exam.

Finally, Defendant will also assert that he is entitled to qualified immunity

for the Due Process claim at trial. The reasons he will succeed on this defense are

the same as those outlined in Part I(A). See also Jackson v. City of Cleveland, 925

F.3d 793, 826 (6th Cir. 2019) (noting that there is “no principled distinction, for

purposes of qualified immunity, between” a malicious prosecution claim and a due

process claim based on fabricated evidence).

III. Defendant is entitled to absolute witness immunity.

As both the U.S. Supreme Court and Sixth Circuit, “absolute immunity is to

be afforded to all grand-jury witnesses, even law-enforcement officers who have

‘conspired to present false testimony.’ ” King v. Harwood, 852 F.3d 568, 584 (6th

Cir. 2017) (quoting Rehberg v. Paulk, 566 U.S. 356, 367 (2012)). Thus, to the extent

Plaintiff’s claims are premised upon Defendant’s testimony at Plaintiff’s

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preliminary examination regarding the creamery video (a video which Plaintiff’s

criminal defense attorney had a copy of and seemingly chose not to review it and did

not play it at the preliminary exam), Defendant is absolutely immune from those

claims.

This Court seemingly acknowledged this fact in its April 20, 2023 opinion and

order, in which it dismissed Plaintiff’s claims against Donker premised on

testimony he made during the preliminary examination, (ECF No. 149,

PageID.3005-06), and noted that Defendant “will not benefit from absolute

immunity ‘for his actions that are prior to, and independent, of his [preliminary

examination] testimony[,]’ ” (id., PageID.3007). In other words, while Plaintiff may

have viable claims for Defendant’s alleged conduct prior to the preliminary

examination, any claims based on the testimony provided at the preliminary

examination must be dismissed.

CONCLUSION AND RELIEF REQUESTED

For these reasons, Defendant Fuller requests that this Court to enter

judgment in its favor after the parties have presented their proofs.

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Respectfully submitted,

/s/ Eric M. Jamison

Eric M. Jamison (P75721)
Assistant Attorney General
Attorney for Defendant Fuller
State Operations Division
P.O. Box 30754
Lansing, MI 48909
(517) 335-7573
jamisone@michigan.gov
Dated: September 1, 2023

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