V.

MEMORANDUM AND ORDER

MARLENE LYNCH FORD, THOMAS F.

KELAHER, JAMES W. HOLZAPFEL, RONALD

F. DELIGNY, SAMUEL J. MARZARELLA, E.

DAVID MILLARD, JAMES A. CHURCHILL, and

DANIEL T. MAHONY.

Defendants.

SHERIDAN, U.S.D.J.

This matter comes before the Court on a motion for summary judgment by Defendants

Marlene Lynch Ford, Thomas F. Kelaher, James W. Holzapfel, Ronald F. DeLigny, John Mercun,

Samuel J. Marzarella, E. David Millard, James A. Churchill, and Daniel T. Mahony (hereinafter

“Defendants”) (ECF No. 155); and a motion to supplement the record brought by Plaintiff (ECF

No. 224). The case arises from an alleged wrongful prosecution and incarceration of Plaintiff, Paul

Kamienski, for the murders of Henry (Nick) and Barbara DeTournay committed on September 19,

1983. The history ofthis case has previously been set out in a number of issued opinions by several

courts, and the Court incorporates herein the facts and procedural history as set forth in those

opinions. See, Kamienski v. Hendricks, 332 F. App’x 740, 744 (3d Cir. 2009)’.

The motion for summary judgment was filed more than two years ago, and the delay in

deciding it is due to supplemental briefing and updating the record. More specifically, at the time

Note: The reader should read this cited opinion initially because this Memorandum focuses on trial issues

raised by the parties.
original filing, Defendants did not address each of the sixteen acts or omissions. As a result, theCourt requested that each of these sixteen allegations be addressed in supplemental briefing.

For organizational purposes, a summary of the applicable law is set forth initially,

followed by the identification of each Defendant to understand his or her role in the prosecutionof Kamienski, then a separate section on each of the sixteen allegations with corresponding factsand legal analysis.

Summary judgment is appropriate under Fed. R. Civ. P. 56(c) when the moving party

demonstrates that there is no genuine issue ofmaterial fact and the evidence establishes the moving

party’s entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant,

and it is material if, under substantive law, it would affect the outcome of the suit. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary judgment, a

district court may not make credibility determinations or engage in any weighing of the evidence;

instead, the non-moving party’s evidence “is to be believed and all justifiable inferences are to bedrawn in his favor.” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting

Anderson, 477 U.S. at 255).

2
issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier

Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). “[U]nsupported allegations. . . and pleadings

are insufficient to repel summary judgment.” Schoch v. First Fidelity Bancorp, 912 F.2d 654, 657

(3d Cir. 1990); see also Fed. R. Civ. P. 56(e) (requiring nonmoving party to set forth specific facts

showing that there is a genuine issue for trial). Moreover, only disputes over facts that might affect

the outcome of the lawsuit under governing law will preclude the entry of summary judgment.

Anderson, 477 U.S. at 247-48. If a court determines, after drawing all inferences in favor of the

non-moving party, and making all credibility determinations in his favor “that no reasonable jury

could find for him, summary judgment is appropriate.” Alevras v. Tacopina, 226 Fed. App’x. 222,

227 (3d Cir. 2007).

II.

As noted, this case revolves around the alleged deprivation of civil rights in the

investigation and prosecution of Kamienski. Section 1983 states:

Every person who, under color of any statute, ordinance, regulation,custom, or usage, of any State or Territory or the District of

Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action

at law, suit in equity or other proper proceeding for redress.

42 U.S.C. § 1983. “By its own terms, the statute does not create substantive rights. Instead, it only

provides remedies for deprivations of rights established elsewhere in the Constitution or federal

3
See Section 1983, Federal Judicial Center, at 133 (Third Ed. 2014); see also West v. Atkins, 487

U.S. 42, 48 (1988).

The Fourteenth Amendment to the United States Constitution states “[njo State shall

deprive any person of life, liberty, or property, without due process of law.” U.S. Const. Amend.XIV, § 1. “The touchstone of due process is protection ofthe individual against arbitrary action of

government. . . .“ Cniy. ofSacramento v. Lewis, 523 U.S. 833, 845, 118 5. Ct. 1708, 1716 (1998).

Thus, to establish a substantive due process claim under §1983, a plaintiff must prove that: (1) theparticular interest at issue is protected by the Fourteenth Amendment, and (2) the government’s

deprivation of that protected interest shocks the conscience. Connection Training Servs. v. City of

Phila., 358 Fed. App’x 315, 319 (3d Cir. 2009).

Generally, to show such deprivation of a Fourteenth Amendment due process right

“requires the Plaintiff to establish that a state [actor] . . . intentionally or deliberately caused the

deprivation of’ the right. Section 1983 Litigation, Federal Judicial Center, at 12-13 (3d Edition

2014). “The Due Process Clause is simply not implicated by a negligent act of an official causing

unintended loss of or injury to life, liberty, or property.” Daniels v. Williams, 474 U.S. 327, 328

(1986) (emphasis in original).

Through sixteen allegations, Kamienski alleges that Defendants violated his Fourteenth

Amendment right to due process by: (1) not conducting a full and fair investigation; (2) failing to

provide exculpatory evidence; (3) creating false or misleading statements; (4) coercing witnesses

4
process, and at most, “Kamienski’s criticisms consist of second guessing as to additional areas of

investigation which could have been conducted. Lacking any evidence of intentional or bad faith

acts, Kamienski essentially accuses the OCPO [Ocean County Prosecutors Office] Defendants of

negligence.” (Def. Supp. Br., ECF No. 194, at 13-14). Defendants also assert qualified immunity

and absolute prosecutorial immunity apply to their actions. Both prosecutorial and qualifiedimmunity are explained below.

III.

Prosecutorial immunity applies when a prosecutor advocates for the state by engaging in

conduct that is “intimately associated with the judicial phase of the criminal process.” Imbler v.

Fachtman, 424 U.S. 409, 430 (1976). “A prosecutor bears the ‘heavy burden’ of establishing

entitlement to absolute immunity.” Odd v. Malone, 538 F.3d 202, 207-08 (3d Cir. 2008). The

presumption is that qualified immunity, rather than absolute immunity, “is sufficient to protect

government officials in the exercise of their duties.” Burns v. Reed, 500 U.S. 478, 486-87, 111 5.Ct. 1934, 1939 (1991). In order to overcome this presumption, a “prosecutor must show that heor she was functioning as the state’s advocate when performing the action(s) in question.” Odd,

538 F.3d. at 208 (citing Yarns v. Cnty. ofDel., 465 F.3d 129, 136 (2006)). Thus, courts evaluate

whether a prosecutor may assert absolute immunity by engaging in a “functional analysis” of the

prosecutor’s actions. Giuffre v. Bissell, 31 F.3d 1241, 1251 (3d Cir. 1994). The functional analysis

looks to the nature of the function performed, not the actor who performed the function. Buckley

5
proceedings or for trial, and which occur in the course of his [or her] role as an advocate for the

State, are entitled to the protection of absolute immunity.” Buckley, 509 U.S. at 273. “This includes

activity taken while in court, such as the presentation of evidence or legal argument, as well as

selected out-of-court behavior intimately associated with the judicial phases” of litigation.

Kuiwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992). The Supreme Court considers the

following factors in deciding whether to extend absolute immunity under § 1983: whether ‘(1)

there is a common law tradition of according immunity in similar situations; (2) denying immunitywould subject the prosecutor to the chilling influence of vexatious lawsuits; and (3) there exist

adequate checks on prosecutorial abuse other than individual suits against the prosecutor.” Odd,

538 F.3d at 216 (first citing 1mb/er, 424 U.S. at 42 1-29; then citing Burns, 500 U.S. at 492-96;

then citing Kulwicki, 969 F.2d at 1463).

However, “the actions of a prosecutor are not absolutely immune merely because they are

performed by a prosecutor.” Buckley, 509 U.S. at 273. Instead, prosecutorial immunity does not

apply to “[a] prosecutor’s administrative duties and those investigatory functions that do not relate

to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings. “Id. at

273 (1993) (citing Burns, 500 U.S. at 494-96). “The key is whether or not a prosecutor is

functioning in ‘his role as advocate for the State’ when undertaking the actions in question. If the

answer to this question is yes, then absolute immunity applies. If not, then the prosecutor is entitled

to only qualified immunity, ‘the norm for executive officers[.]” Murphy v. Middlesex Cnty., No.

6
The Supreme Court has explained that when a prosecutor performs the investigative

functions normally performed by a detective or police officer,

[t]here is a difference between the advocate’s role in evaluating evidence and

interviewing witnesses as he prepares for trial, on the one hand, and the detective’s

role in searching for the clues and corroboration that might give him probable cause

to recommend that a suspect be arrested, on the other hand. When a prosecutor

performs the investigative functions normally performed by a detective or police

officer, it is “neither appropriate nor justifiable that, for the same act, immunity

should protect the one and not the other.” Hampton v. Chicago, 484 F.2d 602, 608

(7th Cir.) (internal quotation marks omitted), cert. denied, 415 U.S. 917, 39 L. Ed.

2d 471, 94 S. Ct. 1413, 94 5. Ct. 1414 (1974). Thus, if a prosecutor plans and

executes a raid on a suspected weapons cache, he “has no greater claim to complete

immunity than activities of police officers allegedly acting under his direction.” 484

F.2d at 608-609.

Buckley, 509 U.S. 259, 273-74, 113 S. Ct. 2606, 2616 (1993). Accordingly, “[wjhen the functions

of prosecutors and detectives are the same, . . . the immunity that protects them is also the same.”

Id. at 274.

The Supreme Court has declined to establish bright-line rules to determine whether a

prosecutor is acting as an advocate, subject to absolute immunity, or as an investigator or an

administrator, subject only to qualified immunity. Odd v. Malone, 538 F.3d 202, 210 (3d Cir.

2008). Instead, in determining the nature of a prosecutor’s actions, courts have found relevant thetiming of the actions. Odd, 538 F.3d at 213; see also Murphy, 2017 U.S. Dist. LEXIS 56663, at

*20. For example, “pre-indictment and post-conviction actions are more likely administrative than

advocative,” Odd, 538 F.3d at 213, and a “prosecutor neither is, nor should consider himselfto be,an advocate before he has probable cause to have anyone arrested.” Buckley, 509 U.S. at 274.

7
support of a motion for a search warrant -- clearly involve the prosecutor’s ‘role as advocate for

the State,’ rather than his role as ‘administrator or investigative officer.” Id. at 491. In contrast,the Court disallowed absolute immunity for “advising the police in the investigative phase of a

criminal case” because that role was not “intimately associated with the judicial phase of the

criminal process.” Id. at 493.

In Buckley, the Supreme Court considered whether prosecutors were absolutely immune

for allegedly fabricating evidence during the preliminary investigation of a crime and making false

statements at a press conference announcing the return of an indictment. Addressing the first issue,

the Court found that in allegedly fabricating evidence during preliminary investigation of the

crime, prosecutors were not entitled to prosecutorial immunity because during the period of the

alleged fabrication of evidence, “[t]he prosecutors [did] not contend that they had probable cause

to arrest petitioner or to initiate judicial proceedings during that period. Their mission at that time

was entirely investigative in character.” Buckley, 509 U.S. at 274. Because the prosecutors were

performing the functions normally performed by investigators, they were entitled only to qualified

immunity. Id. at 276. Regarding the prosecutors statements during a press conference, the Court

determined that these statements were not entitled to absolute immunity, as “[t]he conduct of a

press conference does not involve the initiation of a prosecution, the presentation of the State’s

case in court, or actions preparatory for these functions.” Id. at 278. Instead, the Court explained

8
impeachment related information, and failed to create a system for prosecutors that handled

criminal cases to access information “pertaining to the benefits provided to jailhouse informantsand other impeachment information.” Van de Kamp v. Goldstein, 555 U.S. 335, 341 (2009). The

plaintiff characterized this failure to disclose as an “administrative procedure” not subject toabsolute immunity, because it is related to the training and supervision of prosecutors. Id. at 339.

The Supreme Court disagreed, explaining that “prosecutors involved in such supervision or

training or information-system management enjoy absolute immunity from the kind oflegal claims

at issue here, [which] focus upon a certain kind of administrative obligation — a kind that itself isdirectly connected with the conduct of a trial.” Id. at 344. The Supreme Court distinguished these

administrative functions from other administrative duties, such as payroll administration orworkplace hiring, because these administrative functions “required legal knowledge and the

exercise of related discretion, e.g. in determining what information should be included in training,

supervision, or information-system management.” Id. at 344. In short, the Supreme Court did not

wish to see an “end run around prosecutorial immunity” by restyling a complaint as an

administrative or information-system activity rather than as a prosecutorial action. Section 1983Federal Judicial Center, at 137 (Third Ed. 2014).

Even more, the Third Circuit has acknowledged that a prosecutor may not enjoy

prosecutorial immunity for deliberately destroying exculpatory evidence or for failing to preserve

exculpatory evidence, but is entitled to absolute immunity for these types of actions “so long as

9
Rose v. Bartle, 871 F.2d 331, 344 (3d Cir. 1989) (explaining that prosecutorial immunity applies

even where “a federal prosecutor and a cooperating witness had conspired to use perjured

testimony. . . in order to convict appellants”).

Overall, prosecutors may assert absolute immunity when engaged in the following

activities:

• deciding whether to prosecute;• engaging in pretrial litigation activities concerning applications for arrest

and search warrants, bail applications and suppression motions;

• appointing special prosecutor;

• making decisions concerning extradition;

• preparing for trial, including interviewing witnesses and evaluating

evidence;

• failing to turn over exculpatory material to defense;

• introducing evidence;

• plea bargaining;• entering into release-dismissal agreement;

• making sentencing recommendations; and

• failing to disclose exculpatory material to defense in post-conviction

proceedings.

Section 1983, Federal Judicial Center, at 133 (Third Ed. 2014).

Iv.

Qualified immunity protects executive officials who violate a petitioner’s federally

protected right, so long as the right was not clearly established by law. Harlow V. Fitzgerald, 457

U.S. 800, 818 (1982). Whether government officials can assert qualified immunity is resolved by

a two-part test: (1) whether the facts that a plaintiff has alleged or shown make out a violation of

a constitutional right and, if so; (2) whether the right at issue was “clearly established” at the time
“[T]he clearly established right must be defined with specificity.” City of Escondido v.

Emmons, 139 S. Ct. 500, 503 (2019). Thus, “[a] clearly established right is one that is ‘sufficiently

clear that every reasonable official would have understood that what he is doing violates that

right.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Reichie v. Howards, 132 S. Ct. 2088

(2012)). Qualified immunity is designed to allow government officials to make reasonable

judgments, even if they are mistaken, about open legal questions. It is intended to protect “all but

the plainly incompetent or those who knowingly violate the law.” Kisela v. Hughes, 138 S. Ct.

1148, 1152 (2018) (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)). Qualified immunity has

been defined as a “fair warning” standard by the Supreme Court, meaning that if the federal right

is clearly established, the official is sufficiently on notice and may be held monetarily liable. Hope

v. Peizer, 536 U.S. 730, 741 (2002). Qualified immunity “will attach ifthe official can demonstrate

his conduct was ‘objectively reasonable.” Davis v. Malitzki, 451 F. App’x 228, 232 (3d Cir. 2011).

A right is clearly established when precedent exists that is similar to the case at hand,

although the facts of the precedent do not need to be “materially similar.” Anderson v. Creighton,

483 U.S. 635, 640 (1987); Hope, 536 U.S. at 739. While there is no need for a “case directly on

point . . . existing precedent must have placed the statutory or constitutional question beyond

debate,” and the “violative nature of particular conduct” must not be defined at a “high level ofgenerality.” Ashcrofl v. Al-Kidd, 131 5. Ct. 2074, 2083-84 (2011). To determine whether a right is

clearly established, “we look first for ‘applicable Supreme Court precedent.’ If none exists, we

11
164, 169 (3d Cir.), as amended (Mar. 21, 2016)). “The clearly established law must be

‘particularized’ to the facts ofthe case. . . . {o]therwise, plaintiffs would be able to convert the rule

of qualified immunity.. . into a rule of virtually unqualified liability simply by alleging violationof extremely abstract rights.” White, 137 S. Ct. at 552 (quoting Anderson, 483 U. S. at 640).

However, “the unconstitutionality of outrageous conduct obviously will be unconstitutional,” and

“officials can still be on notice that their conduct violates established law in novel factual

circumstances.” Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364, 378-79 (quoting Hope,

536 U.S. at 741).

Accordingly, some of the actions that prosecutors and investigators may assert qualified

immunity include:

• holding a press conference;

• engaging in investigative activity prior to the establishment of probable

cause to arrest;

• providing the police with legal advice during the investigative phase;

• ordering police to conduct warrantless arrests; and

• participating in execution of material witness warrant.

Section 1983, Federal Judicial Center, at 134 (Third Ed. 2014).

V.

Since the Defendants are named independently throughout the sixteen allegations but are

not clearly identified as to their role within Kamienski’s prosecution, each Defendant is identified

below by their role and responsibilities in the prosecution.

12
deposition, Churchill acknowledged that during the investigation of the DeTournay murders anddrug transactions, he “basically. . . was in charge of the investigators from the Prosecutor’s office

who worked on the case.” (Id. at ¶ 238). He performed supervisory duties during the investigation,

from September 1983, through the grand jury indictment in 1988, as well as the trial and post-trial

motions in 1988. (Id. at ¶ 237). He continued these supervisory duties throughout the appeals

process between 1989 and 1992, during the filing of Kamienski’s habeas petition between 2002

and 2006, and through the Third Circuit appeal in 2006. (Id.)

Churchill also performed investigative functions for the OCPO from 1970 through 1995,

and from 1997 to 2006. These duties continued throughout the Kamienski investigation. (Id. at ¶239-40). The investigative functions performed by Churchill included interviewing witnesses,

reviewing evidence, meeting daily with the team of agents conducting other aspects of the

investigation, conducting a polygraph test, and choosing what evidence should be analyzed

through forensic examination. (Id. at ¶ 240).2 Plaintiff submitted an additional “corrected” response and counter-statement of material

facts. See ECF No. 169. It is not clear what, if any, difference there is between Plaintiffs originalresponse and counter-statement of material facts and the corrected version. Further, it is not clearwhether Plaintiff sought leave from the Court to file the corrected version. Defendants have not

responded to the corrected version. Accordingly, the Court reviews the original response and

counter-statement of material facts. See ECF No. 158.

13
Mahony also held supervisory positions, including being a sergeant from 1988 to 1990, a lieutenant

from 1990 to 1995, and the chief of investigators from 1997 to 2007. (Id. at ¶ 279). Mahony

initially stated he did not participate in drug investigations after 1980, but later explained that he

participated in arresting Donna Duckworth3 on drug charges in 1985 and participated in searching

Kamienski’s boat for controlled drug substances at that time. At the time of his deposition in

March 2017, he could not recall what probable cause the OCPO had to obtain the warrant for

search of Kamienski’s boat. (Id. at ¶ 280). Mahony testified that he would generally discard any

notes he had created. (ECF No. 166, ¶ 282).

E. David Millard

Defendant E. David Millard became a part-time prosecutor at the OCPO beginning in May

1987 and continuing for about eight years, during which time he served as a trial team leader. (Ex.

D, Dep. Of E. David Millard, T12:9-14:7). Millard was then the Ocean County Prosecutor from

September 1997 until January 2002 and was involved in the Kamienski matter during the Grand

Jury proceedings, during the trial and post-trial motions, and Kamienski’s sentencing. (E. David

Millard Answers to Interrogatories, ECF No. 155-19, Ex. Q, at ¶ 4).

At the time of the investigation, Donna Hmielewski was known as Donna Duckworth.

Subsequently, she has changed her name to Donna Hmielewski. (Dep. of Donna Hmielewski, ECF

No. 155-5, at T14: 1-20). For the purpose ofthis Memorandum, the Court will refer to her as Donna

Duckworth or Duckworth.

14
handled the prosecution of Donna Duckworth on an unrelated drug charge that had been initiatedprior to his arrival. (Def. Response to Statement of Material Facts, ECF No. 166, at ¶ 130-135).

James W. Holzapfel

Defendant James W. Holzapfel was the Ocean County Prosecutor from May 1987 to the

fall of 1992. The County Prosecutor is the highest executive position in the office, and Holzapfel

directly supervised Terrance Farley, the First Assistant County Prosecutor (on legal issues) and

also supervised Chief of Detectives, Palmer Herbert and James A. Churchill (on investigativeissues).

Assistant County Prosecutor Farley oversaw trials and appeals. During his tenure, the

OCPO’s office, undertook the following activities: (1) investigated Kamienski’s allegedinvolvement in the DeTournay murders and drug charges; (2) tried Kamienski on murder and drug

charges; (3) opposed Kamienski’s post-trial motion for judgment of acquittal; and (4) filed theappellate brief seeking reinstatement of the murder charges which the trial judge had dismissed.

Plaintiff alleges that no other person at the OCPO had oversight over ethical issues or ethics

training during Holzapfel’s tenure. (ECF No. 166, ¶ 42-45).

Thomas F. Kelaher

Defendant Thomas F. Kelaher was the Ocean County Prosecutor from January 2002 to July

2007, during which time the OCPO opposed Kamienski’s habeas petition. (Id. at ¶ 62). During

most of Kelaher’s tenure, Terrance Farley was the First Assistant County Prosecutor. Defendant

15
Defendant Marlene Lynch Ford was the Ocean County Prosecutor from June 27, 2007 to

March 22, 2013, which included the time period during which Kamienski’s habeas petition appeal

was pending in the Third Circuit. During most of Lynch Ford’s tenure, Defendant Ronald F.

DeLigny was the First Assistant County Prosecutor. William Heisler was the Executive County

Prosecutor. In addition, DeLigny was the designated ethics officer, and Samuel J. Marzarella was

the head of the appeals unit. Charles Kyle was the chief investigator. (Id. at ¶J 76, 79-83).

Ronald DeLigny

Ronald DeLigny was employed as an Assistant County Prosecutor from September 1987

to July 1, 2012. DeLigny claims he was never the ethics officer. However, this contradicts

Defendant Marlene Lynch Ford’s testimony (see above). DeLigny also alleges that his first and

only involvement in the Kamienski matter occurred after the Third Circuit’s reversal, when the

OCPO was considering filing a petition for certiorari to the U.S. Supreme Court. He claims that

he was unaware of any aspect of the Kamienski investigation, trial, appeal, or habeas litigation.

(ECF No. 166, ¶ 117-118).

Samuel J. Marzarella

Defendant Samuel J. Marzarella is or was the head attorney in the Appeals Unit at the

OCPO from September 1986 to 1991, and then again from March 2002 until at least 2017. During

the latter period he became a Supervising Attorney (circa 2006/2008) and then Chief of Appeals

(201 5). (P1. SOF at ¶ 3 55-56). Marzarella drafted the brief seeking to reverse Judge Perskie’s

16
VI.

This section presents the sixteen allegations engendered by Plaintiff in response to the

motion for summary judgment based on qualified immunity and prosecutorial immunity.

Organizationally, each allegation4 will be addressed in numerical order except one. Allegation

fifteen will be presented first because it focuses on the essential facts and the most pertinent issue

giving rise to this case.

Allegation 15:

Defendant Marzarella filing false and misleading briefs on direct appeal, in opposition toKamienski’s habeas petition and in opposition to Kamienski’s federal appeal. DefendantMarzarella attempting to mislead the United States District Court and Court of Appeals at oralargument with unsupported and/or false statements as to the record in the underlying trial.

And, Defendant Millard not stepping in to correct matters once he became County Prosecutor

and knew or should have known Marzarella had completely distorted the trial record, claimingfor instance that the evidence showed Kamienski had “premeditated” the murders whenMillard at trial and during post-trial motion said there was no evidence Kamienski knew in

advance of his co-defendants’ plan to commit a drug robbery, much less a dual murder.

In the supplemental briefing, Plaintiff reframes Allegation 15 as follows:

Attorney Marzarella filed false briefs on the direct appeal, during

the habeas litigation and in the federal appeal. When Marzarella’s

misconduct was finally exposed for what it was the Third Circuit

reacted by becoming, in the words of a member ofthe panel, “almost

apoplectic.” The Third Circuit further excoriated Marzarella forfiling “misleading” and “totally improper” briefs in order to try to

perpetuate Kamienski’s murder convictions, which had been

wrongful secured from the beginning. Kamienski v. Hendricks, 332

F. App’x 740, 744 n.8 and n. 9 (3d Cir. 2009) and Ex. 12 at 20:3-

Each allegation is quoted from Plaintiff’s brief. On many of the allegations, Plaintiff substantively reframed

them in his supplemental brief to which defendants may not have responded fully.

17
(P1. Supp. Br., ECF No. 186, at 32-33).

By way of background, Kamienski was tried on an indictment alleging conspiracy to

distribute drugs and murders of the DeTournays, and he was convicted on both counts. Judge

Perskie found his instruction of murders as it applied to Kamienski was flawed, and he ruled on a

judgment notwithstanding the verdict (JNOV) to set aside the murder convictions based on the

improper charge. On appeal, Judge Stephen P. Perskie’s ruling was reversed, and the murder

conviction was reinstated, On remand, Judge Perskie imposed a sentence of two life sentences

with thirty years parole ineligibility for the murder convictions, and consecutive terms of twelve

years imprisonment for the drug conspiracy convictions. Kamienski v. AG for N.J., Civil Action

No. 11-3056 (PGS), 2012 U.S. Dist. LEXIS 130046 (D.N.J. Sept. 12, 2012). Kamienski was

confined from 1988 through 2007, at which time the Third Circuit found that Perskie’s JNOV wascorrect and it set aside the Appellate Division’s decision. As a result, Plaintiff alleges that theactions of the trial attorneys of the Ocean County Prosecutor’s Office culminated in Marzarella’s

allegedly misleading appellate and habeas briefs.

Initially, this is the most significant issue because in order to prove a § 1983 case one must

establish (1) conduct by a person; (2) who acted under the color of law; (3) proximately causing;and (4) deprivation of a federally protected right. Here, Kamienski’s loss of liberty (incarcerated

for nearly 20 years) was proximately caused by the reversal ofJudge Perskie’s JNOV to set aside

the murder conviction by the Appellate Division allegedly due to Marzarella’s brief.

18
and misleading briefs, Marzarella denied him his due process right to a fair trial. (Id. at 33). Even

more, according to Kamienski, if these false and misleading briefs were not filed, the Appellate

Division would not have reinstated his murder conviction, and it is “highly unlikely the District

Court would have denied” his habeas petition. (Id.)

In support of this proposition, Kamienski points to the Third Circuit’s decision in

Kamienski v. Hendricks, 332 F. App’x 740, 745 (3d Cir. 2009), and comments made by ThirdCircuit Judges during oral argument for the habeas petition. Kamienski argues that one member

of the panel “excoriated Marzarella for filing ‘misleading’ and ‘totally improper’ briefs in order to

try to perpetuate Kamienski’s murder convictions . . . .“ (Id.) Kamienski highlights portions of

both the briefs on direct appeal and the briefs before the Third Circuit, in an effort to show specific

instances where the briefs were misleading. (See PSOF, ECF No. 169, at ¶ 371-388; 400-407;

412; 423). Regardless, Kamienski rightly notes that “[tjo permit Kamienski to go forward on thisclaim, the Court would have to determine that an appellate attorney opposing a federal habeas

petition is not entitled to absolute immunity.” (Id. at 33). Rather, Plaintiff argues that Marzarella’s

conduct “shocks the conscious” and absolute immunity should not apply. (Id). However,

Kamienski’s arguments are without merit.

As previously explained, the Third Circuit has held that “{a]bsolute immunity applies to

the adversarial acts of prosecutors during post-conviction proceedings . . . where the prosecutor is

personally involved.. . and continues his role as an advocate. . . .“ Yarns, 465 F.3d at 137 (quoting

19
1mb/er, 424 U.S. at 430. Accordingly, Marzarella is entitled to prosecutorial immunity for filing

allegedly false and misleading briefs before the courts.

More so, the Court declines to find that Marzarella’s conduct here “shocks the conscious.”

First, the comments made by counsel or a judge at oral argument for the habeas petition must be

viewed in light of the Third Circuit’s opinion. See Kamienski, 332 F. App’x at 745. Second,

Kamienski mischaracterizes the Third Circuit’s comments regarding “misleading” aspects of the

briefs. The first comment discusses Duckworth’s testimony regarding the knots Kamienski would

tie and the knots used to tie the bodies to the cement blocks. Id. at 744. The Third Circuit explained:

[t]he government makes much of this testimony on appeal .

However, the state’s selective reliance on that testimony is

misleading because Duckworth conceded on cross examination that

there was nothing unique about the knots, and that the hitch knot is

a common boater’s knot. . . Accordingly, the fact finder could only

conclude from that portion of her testimony that Kamienski knew

how to tie a common “hitch knot,” used in boating.

Id. at 744 n.8.

The second comment discusses how, throughout the brief before the Third Circuit, the

government:

used the term “defendants” in a manner that included Kamienskiwithout specifying which ofthe three defendants the evidence refers

to. In several of those references, the evidence being discussed

pertained only to Marsieno and/or Alongi, and not to Kamienski.

Moreover, the government’s brieffrequently includes facts based on

testimony that was admitted only against Marsieno and/or Alongi.

Although counsel does note that such evidence was admitted only

against the other defendant(s), it is clearly irrelevant in determining

20
While the Third Circuit expressed disapproval, neither of these comments rise to the level

of conscience-shocking activity that Courts have previously found to be violative of due process.

Courts have consistently held that “[fjor behavior by a government officer to shock the conscience,

it must be more egregious than ‘negligently inflicted harm,’ as mere negligence ‘is categorically

beneath the threshold of constitutional due process’ . . . Instead, ‘only the most egregious officialconduct can be said to’ meet that standard.” Haberle v. Troxell, 885 F.3d 171, 177 (3d Cir. 2018).

Kamienski has failed to show how Marzarella’s actions “shock the conscience” such that he should

be denied absolute immunity. Accordingly, because prosecutors are absolutely immune for actions

in presenting the Governments case, i.e., drafting briefs and presenting arguments at argument, the

Court finds Marzarella and Millard is immune. In addition, there is little evidence presented in

this allegation related to Millard’s failure to “step in.”

Although the Court will analyze, separately, the merits of Plaintiffs fourteen remaining

allegations, the Court notes at the outset that there is some doubt as to whether the deprivation of

Kamienski’s liberty (i.e. his period of incarceration) was proximately caused by any of the

remaining allegations against the defendants. As explained above, see Section II, the AppellateDivision’s reversal of the JNOV entered by Judge Perskie appears to be the leading cause of

Plaintiffs alleged deprivation of his liberty interests. A more in-depth analysis of the

deficiencies of Plaintiffs remaining allegations follows.

21
Churchill and Mahony and Attorney cum Investigator Millard failed to fully investigate the

DeTournays’ murders by creating a legitimate timeline as to Kamienski’s involvement in the

murders.” (P1. Supp. Br., ECF No. 186, at 17). Plaintiff argues that the failure to create a timeline

was a violation of his Constitutional right to due process secured by the Fourteenth Amendment,in violation of his right for a full and fair investigation. (ECF No. 186, at 7). Plaintiff alleges that

several facts warranted the creation of a timeline by Defendants Millard, Churchill and Mahony.

(ECF No. 158, at ¶294-315). Although Plaintiff’s claim is akin to a claim for reckless investigation

or for failure to investigate, he specifically alleges the failure to develop a timeline. Most of the

facts that Plaintiff alleges in support ofthis claim relate to timing impossibilities or improbabilities

that would have become evident had a timeline been created; such a timeline would have shown

that it was unlikely, if not impossible, for Plaintiffto have been at the murder scene. (Id. at 18-19).

Defendants, on the other hand, argue, inter alia, that there is no constitutional right to such

a timeline, that Plaintiffs theory relies on speculation rather than evidence, that the evidence of

the case establishes Plaintiff as the middleman to the drug conspiracy (which implies that he was

present at the scene), and that Duckworth’s testimony placed him at the scene ofthe murders. (ECF

No. 194, at 2). Moreover, if a timeline was applicable to the case, it may have been the duty of

Kamienski’s trial counsel to create and display it during the trial, not the investigators. (Id.)

Most of the facts alleged by Plaintiff pertaining to the timeline allegation involve

Defendant Mahony (ECF No. 158, at ¶ 294-315), who was assigned to investigate the deaths of

22
DeTournay case specifically.” (Id. at ¶ 294). To be clear, Defendant Mahony testified in his

deposition that he did create a timeline ofthe case; he just did not remember exactly how he createdit, or when he created it. (Ex. C., of Dep. of Mahony, T34:2-18). However, Plaintiff still alleges

that Mahony “never tried to ascertain the travel times between the various places where key events

took place on the day of the murders” (e.g. Toms River Holiday Inn and Lakewood Holiday Inn,

Alongi residence, Oceanside Marina and O’Donnell residences) and further an outline would have

shown that Plaintiff could not have been present at the scene of the murders. (EFC No. 158, at ¶

3 12).

Specifically, Plaintiff argues that trial witness Jeffrey reported seeing Barbara DeTournay

alive in a room at the Toms River Holiday Inn at 6:15 p.m., but that Duckworth reported seeing

both DeTournay bodies on the boat at 6:45 p.m. (Dep. Of Mahony, ECF No. 155-24 at T189:22 — 190:8). Plaintiff has provided Google Map directions that purport to show the distance between

the Toms River Holiday Inn and the Alongi residence. According to Plaintiff, because Google

estimates the drive time to be eight minutes from the Toms River Holiday Inn (not including the

time it would take Barbara to walk from her room to the vehicle) to the Alongi residence (Ex. C,

Google Map: 617 Baron Street, Toms River, NJ to 290 Highway 37, Toms River, NJ, P165), it

would have been nearly impossible for Duckworth to have seen the bodies at 6:45 p.m. if Barbara

had only just arrived at the Alongi residence around 6:30 p.m. (Dep. of Mahoney, ECF No. 155-24 at T190: 3-8). Moreover, Plaintiff alleges that Mahony did not take into account the ten to

23
Rentals, P357).

Regarding Defendant Churchill, Plaintiff alleges in a different section of his statement of

material facts that Churchill simply “cannot recall preparing a timeline with the Kamienski

investigative team and never discussed with them the strengths and weaknesses of the evidence asit came in.” (ECF No. 158, ¶ 243).

Regarding Defendant Millard, Plaintiff argues in a separate section of his statement of

material facts that Millard argued to the jury that Plaintiff drove his boat to Alongi’s house on the

night of the murders and later picked up Duckworth at her friend’s house in his car and brought

her back to Alongi’s house where she saw the bodies, and that Millard mistakenly believed that

Plaintiff could have made that trip in 10-15 minutes. (ECF No. 158 at ¶ 145-146). Plaintiff alsoalleges that Millard failed to prepare a sufficiently detailed timeline/chronology of the events that

occurred on the day of the murders. (Id. at ¶ 144).

The Supreme Court has explained that such due process violations must not be defined at

a “high level of generality.” Ashcroft, 131 S. Ct. at 2083-84. Kamienski’s argument that failure todevelop a sufficiently detailed timeline is a due process violation does not support the argument.

In fact, none ofthe cases cited by Kamienski hold same. See generally Wilson v. Lawrence County,260 F.3d 946, 957 (8th Cir. 2001); Gardenshire V. Schubert, 205 F.3d 303, 318 (6th Cir. 2000);Sanders v. English, 950 F.2d 1152, 1162 (5th Cir. 1992); Whitley v. Seibel, 613 F.2d 682, 686 (7th

Cir. 1980); Briscoe V. Jackson, 2. F Supp. 3d 635, 644 (E.D. Pa. 2014); Whitley v. Allegheny Cty.,

24
result is the same. The court in Thomas v. City ofPhila., 290 F. Supp. 3d 371, 386 (E.D. Pa. 2018)

explained:

There is “no constitutional right to a police investigation.” E.g.,

Whitehead v. City of Phila., No. 13-2 167, 2014 U.S. Dist. LEXIS

21000, 2014 WL 657486, at *2 (E.D. Pa. Feb. 19, 2014). As this

Court put the matter in Wright, “[i]t certainly remains to be seen

whether there is an independent cause of action under the FourteenthAmendment . . . for ‘failing to conduct a constitutionally adequate

investigation,’ and the Court will not affirmatively recognize one

here at this time.” 229 F. Supp. 3d at 332 n.3 (emphasis added)....

[T]he Third Circuit Court of Appeals has not recognized such a

cause of action. Even if such a constitutional cause of action exists,

it is not and certainly was not in the mid-1990s — clearly

established, meaning that the defendants are (or would be) shielded

by qualified immunity anyway. See, e.g., Ashcroft v. Al-Kidd, 563

U.S. 731, 741, 131 5. Ct. 2074, 179 L. Ed. 2d 1149 (2011);

Mammaro v. NJ. Div. of Child Protection, 814 F.3d 164, 169 (3d

Cir. 2016).

Moreover, even ifthis Court were to construe this claim as one for “reckless investigation,”

the Third Circuit recently noted that a claim for “reckless investigation” has not yet beenrecognized; accordingly, “no such constitutional right . . . was ‘clearly established’ at the relevant

time, as required to overcome qualified immunity.” Geness v. Cox, 902 F.3d 344, 354 n.5 (3d Cir.

2018). As explained in Section II, supra, a Plaintiff must show that 1) a constitutional right hasbeen violated, and 2) the right was clearly established to defeat qualified immunity. See Walker,

905 F.3d at 144. Here, there is simply no precedent that an investigator must create a timeline.

Even viewing the facts in a light most favorably to Plaintiff, and thus assuming that Mahony stated

25
Mahony and Churchill are entitled to qualified immunity for this claim. (See Section IV, p. 10-

12).

With regard to Defendant Millard, he is entitled to absolute immunity because his

statements at trial clearly fall within his role as an advocate for the State, i.e. the judicial phase.

See Imbler, 424 U.S. at 430. Among the facts alleged by Plaintiff relating to the timeline, the only

facts that implicate Millard involve his closing argument at trial. (ECF No. 158, at ¶J 145-46).Utilizing the functional analysis test, only the function of Millard’s statement needs to be evaluated

regarding this allegation. Buckley, 509 U.S. at 269. The function of a closing argument clearly

falls within the judicial phase of a case as opposed to an investigative or administrative phase, and

therefore Millard is entitled to absolute immunity. (See, Section III, pp. 5-10).

26
Plaintiff reframes this issue in his supplemental brief as “Investigating Officers Churchill

and Mahony and Attorney cum Investigator Millard failed to fairly and fully debrief State trial

witnesses Sidney Jeffrey, III, and George (“Skip”) Hunt.” (P1. Supp. Br., ECF No. 186, at 19).Plaintiff also alleges that Defendants Millard, Churchill and Mahony violated his constitutional

due process right to a full and fair investigation by failing to “fairly and fully debrief State trial

witnesses Sidney Jeffrey, III and George (“Skip”) Hunt.” (ECF No. 186 at 19). Most notably,Plaintiff argues that Defendants failed to ask Hunt if Alongi was operating his boat alone on the

evening of the murders. (Id. at 20). Defendants argue, in turn, that Plaintiffs trial counsel had

“ample opportunity” to debrief these witnesses at trial, and assert that Duckworth’s testimony

placed Plaintiff at the scene. (ECF No. 194, at 3).

Mr. Hunt resided directly across the street from the Alongi residence. (Ex. C., OCPO Supp.

Invest. Rep., at 166). Plaintiff alleges that Skip Hunt contacted Detective Peter Fitzsimmonsshortly after the homicides were discovered and advised Fitzsimmons that he observed Nick

DeTournay at the Alongi residence shortly before the murders occurred. (P1. SOF at ¶ 316). Hunt

also conducted some type of surveillance of the Alongi residence after the murders at the request

of the OCPO. (Id. at ¶ 317). Hunt told Detective Fitzsimmons that, on occasion, he previously hadseen Plaintiffs distinctive and loud Avanti car, or his large yacht with a fly bridge at the Alongi

residence during the summer or fall of 1983. (Id. at ¶ 323-24). Moreover, in 2008. Plaintiffsubmitted as part of his habeas petition a report of a telephone interview of Skip Hunt by Plaintiffs

27
320). He alleges that Mahony “waited four years after Skip Hunt contact[ed] DetectiveFitzsimmons to interview him, and Mahony cannot explain the delay.” (Id. at 322). In addition, he

alleges that Mahony cannot recall asking Hunt whether he had seen Plaintiffs car or yacht at the

Alongi residence on the day of the murders. (Id.) Plaintiff alleges that Mahony’s record of his

interview with Hunt, is silent about other details of Hunt’s observations. From this, Plaintiff

deduces that Mahony asked about the details of Hunt’s observations, but he did not record them

because the replies did not support the prosecutor’s theory. (Id. at ¶ 328-30). Moreover, Plaintiff

alleges that there is another similar incident. In that incident, Plaintiff argues that Hunt claimed to

have twice seen Alongi operating his boat in the lagoon leading to Barnegat Bay around the times

ofthe murders in an unusual manner, and Mahony cannot recall asking Hunt whether Alongi was

alone. (Id. at ¶ 326-27). Plaintiff deduces that since Mahony’s report of the interview is silent,Mahoney did not record same because it does not support the prosecutor’s theory. (Id. at ¶ 330).

Moreover, Plaintiff alleges that Mahony has no recollection that Skip Hunt was the last person to

see Nick DeTournay alive. (Id. at ¶ 334). Mahony is not implicated in any facts regarding Mr.

Jeffrey.

Defendant Churchill is vaguely implicated for failing to debrief Hunt or Jeffrey. Plaintiff

on’y alleges that Churchill “performed investigative functions on the Kamienski case specifically

during the pre-trial indictment investigation, including interviewing witnesses, [etc.j...” (ECF No.

158, at ¶ 240). This is insufficient to show any violation of an established right because not only

28
DeTournay investigation.” (ECF No. 158, at ¶ 335). More specifically, Plaintiff alleges that

Millard spoke with Hunt between two and four times during the Kamienski investigation and trial

preparation (Id. at ¶ 319), that Millard never asked, and was never told that Hunt he did not see

Plaintiffs car or yacht at the Alongi residence on the day of the of the murders. (Id. at ¶ 148)

Plaintiff further alleges that Millard met with Mr. Jeffrey (Id. at ¶ 149), and that Millard called

Jeffrey as a witness in the State’s case to show that Jeffrey was the last person to have seen Barbara

DeTournay alive, but he never asked what time Jeffrey witnessed DeTournay leave the Holiday

Inn with one of the participants of the drug deal. (Id. at ¶ 208-09).

Again, Plaintiffs claims that Millard and Churchill failed to adequately debrief witnesses

are not violations of a due process right. In an analogous case, the court rejected the plaintiffsclaim that an arresting officers’ failure to take “reasonable” steps to investigate whether the

perpetrator had been trespassing, because the officer did not interview witnesses, violated the

Plaintiffs constitutional rights. Briscoe, 2 F. Supp. 3d at 644. The court held that the claim only

amounted to an accusation of negligence, and noted that officers do not need to investigate every

claim of innocence. Id. Here, too, Plaintiffs allegations only constitute a claim of negligence, and

do not illustrate conduct which is an intentional violation of due process or shocks the conscience

of the Court.

The Court concludes that Defendants Mahony and Churchill are entitled to qualified

immunity because there is no clearly established constitutional right that investigators must

29
see also Thomas, 290 F. Supp. 3d at 386. Accordingly, the failure to adequately debrief witnesses

was never recognized by the courts as an established right. As such, qualified immunity applies.

Finally, Defendant Millard is entitled to absolute immunity for those acts associated with

his role as an advocate for the State, i.e. his use of Jeffrey’s testimony as the last person to see

Barbara DeTournay alive and his failure to elicit the time he saw Barbara Delournay leave the

Holiday Inn. As for other the alleged facts regarding Millard, specifically that he spoke with Hunt

during the Kamienski investigation and trial preparation (ECF No. at 158, ¶ 319), he failed to ask

and was never told that Hunt said he did not see Plaintiff on the day ofthe murders (ECF No. 158,

at ¶ 148), and that he met with potential witness Jeffrey (ECF No. 158, ¶ 149), it is not clear that

absolute immunity is applicable because meeting with witnesses during the investigative phase

may not be associated with his role as an advocate for the state, especially given the “heavy

burden” to establish absolute immunity. Light v. Haws, 472 F.3d 74, 80-8 1 (3d Cir. 2007).

However, this Court does not need to answer same because Millard is protected by qualified

immunity for the same rationale as Defendants Mahony and Churchill.

30
administered. (See P1. Supp. Br., ECF No. 186, at 20; P1. SOF, at ¶ 250). Specifically, Plaintiffargues that the polygraph examination did not demonstrate any deception of Plaintiff with respect

to his answers to questions about whether he committed the DeTournay murders, whether he had

any knowledge of plans to murder the DeTournays or whether Plaintiff helped others to murder

the DeTournays. (Id. at 20). Plaintiff argues that, from the day the polygraph was administered,

Churchill knew, or strongly believed, that Plaintiff did not have anything to do with the murders,

even though he may have suspected that Plaintiff had something to do with the related drug

transaction.

Plaintiff alleges that Churchill administered a polygraph examination on April 30, 1984

and the only possible “deception” that Churchill noted is with respect to Plaintiff’s claim “that he

was not specifically told that there was a drug deal between Alongi and the Delournays just prior

to the DeTournays being shot.” (ECF No. 158, at ¶ 250). Additionally, Plaintiff’s counsel asserts

that that Kamienski passed Churchill’s polygraph concerning the question of whether he had

participated in in the murders of the DeTournays or was present at the scene when they occurred.

(Id. at ¶ 251). On the other hand, Defendants argue that the polygraph showed Plaintiffto be “bothdeceptive and concealing information about the murder.” (ECF No. 194, p.3).

Plaintiffrelies on the same cases cited for the timeline allegation (Allegation 2), and draws

particular attention to Whitley v. Allegheny County, No. 7-403, 2010 U.S. Dist. LEXIS 21262

(W.D. Pa., Mar. 9, 2010). In Whitley, the issue involved “actionable investigative conduct

31
of ignorance of exculpatory evidence as Plaintiff argues that Churchill ignored the results of thepolygraph test. In Whitley, however, the court granted a motion for summary judgment fordefendants based on qualified immunity. Id. at *107. It did so even while reasoning that theallegations of due process violations could reasonably be viewed as reckless by ajury. Id. at * 106.

Significantly, the court found that there was no precedent establishing that the federal right at issue

was clearly established at the time of investigation, and stated that it was not “a violation of the

Constitution for defendants to conduct recklessly the investigation of Malloy’s murder.” Id. at

*107. Moreover, the polygraph issues in Whitley focused on failure to administer or lack oftraining

in administering. Id. at *22, *39 Here, however, it is clear Churchill competently administered a

polygraph test, and, unlike Whitley, he was qualified to do so as he had been declared an expert bya court several times. (Dep. of Churchill, ECF No. 155-21, 131:6-8). Given the similarity of factsbetween Whitley and this case, which Plaintiff points out by stating that it involved “improper use

of, and failure to use, polygraph examinations. “Although Plaintiff believes that Whitley and thiscase are analogous, the facts are substantially different and distinguishable.

Plaintiff also relies on Sanders v. English, which held that an investigator may not

knowingly and willingly ignore substantial exculpatory evidence. Sanders v. English, 950 F.2d

1152, 1162 (5th Cir. 1992). In that case, an investigator was accused of ignoring multiple credible

alibi witnesses, a negative identification by a witness who helped compose a police sketch, and a“belated identification ofthe victim under peculiar circumstances.” Id. The court held this evidence

32
that Kamienski “knew more information about the circumstances surrounding the death of the

DeTournays [sic] than he had already told the police,” (Dep. of Churchill, ECF No. 155-21,T31:18-21), which is far from “patently exculpatory.” As such, Defendant Churchill is entitled

to qualified immunity because there are no facts showing that he knowingly and willingly ignored

substantial exculpatory evidence. (See, law on qualified immunity, Section IV, pp. 10-1 1).

Finally, considering the merits of Plaintiffs claim, there is no evidence in the record that

Churchill’s administration ofthe polygraph test and his interpretation ofthe results that Kamienskiwas answering in a deceptive manner constituted a due process violation.

33
Churchill, Mahony, and Millard failed to “fairly and fully analyze crime scene evidence.” (P1.

Supp. Br., ECF No. 186, at 20-2 1). In support, Plaintiff argues that Defendants Mahony, Churchill,

and Millard did not review the significance of the items collected from with the bodies, and did

not properly test the crime scene evidence that was recovered. (P1. Br. ECF No. 158-1 at 26). In

furtherance of this allegation, the Plaintiff states:

Among other things, it would have ruled out Duckworth’s incorrect and

unsupportable claim that three items found among all the other things recovered

with the bodies came from Kamienski’s boat, namely, two blankets and a towel.

Not only did the misuse of Duckworth’s testimony most likely contribute to

Kamienski’s wrongful conviction, but the blankets and towel were critical facts in

the eyes of the Appellate Division [of New Jersey] and U.S. District Court inreinstating Kamienski’s murder convictions and denying his habeas petition,respectively. Without Duckworth’s false trial testimony as to these items, and the

OCPO’s subsequent misuse of this testimony, it is highly unlikely that the jury

would have convicted Kamienski of murder, the Appellate Division [of NewJersey] would have reinstated the murder charges, or if it did, that the District Courtwould have denied Kamienski’s habeas petition. The significance of Duckworth’sfalse and misleading testimony as to the two blankets and towel cannot beoverstated.

In response to this allegation, Defendants claim that all the related physical evidence was collected

and sent to the FBI lab for examination. (See ECF. No 155-1 at 3 1-2; ECF No. 194 at 4).

Though Plaintiff alleges Defendants failed to fully and fairly investigate the crime scene

evidence, this was not a constitutional right that was clearly established at the time of the

investigation, as required to overcome qualified immunity. See Geness, 902 F.3d at 354 n.5; see

also Thomas, 290 F. Supp. 3d at 386. Viewing this allegation most favorable to the non-moving

party, this allegation is nothing more than a claim of negligent investigatory practices. In reviewing

34
clearly established right at the time of this investigation for a full and fair investigation.

Accordingly, because there is no “clearly established” right that was violated, qualified immunity

applies to these Defendants. (See, law on qualified immunity, Section IV, pp. 10-1 1).

35
and Millard (acting as an investigator) failed to fully and fairly analyze FBI lab reports. (P1. Supp.Br., ECF No. 186, at 21-22). Plaintiff avers that failure to adequately consider both FBI reports

violated his due process right to a full and fair investigation. (Id.) As far as the Court can tell, there

were at least two requests for analysis of the evidence that were sent to the FBI for testing which

resulted in two FBI lab reports: the 1984 and 1988 reports.

Regarding the 1984 report, two blankets were obtained from Plaintiff’s boat, which in turn

were sent to the lab for testing in October of 1983, along with two other blankets recovered fromthe victims’ bodies. (P1. SOF, at ¶‘J263-65). Several month later, an FBI report dated May 2, 1984

stated that according to Special Agent Andy Podalak the blankets recovered from the victims had

not come from Plaintiff’s boat. (Id. at ¶266-67).

Regarding the 1988 report, Defendants Churchill and Mahoney requested that the floral

towel found with Nick Delournay’s body be tested for petroleum distillates (wax) because

Duckworth claimed that the floral towel resembled the rag that Plaintiff used to polish his boat.(Id. at ¶J26O-61). The FBI report dated February 1, 1988 found that the floral towel tested negative

for petroleum distillates. (Id. at ¶263). According to Plaintiff, “[t]he February 1, 1988 FBI Report

suggests (with proper analysis), among other things, that the towel had not been used regularly as

a polishing cloth on Kamienski’s boat.” (Id. at ¶263). Plaintiff argues that if the FBI analyzed the

hair and fibers in addition to the petroleum distillates, it would have shown the floral towel most

likely came from the DeTournay automobile, as opposed to Kamienski’s boat because the hair

36
this would have discredited Duckworth’s testimony.

According to Plaintiff, “the FBI hair and fiber analysis actually suggests that the blankets

came from the victims’ own car. . . and the lack of petroleum distillates on the towel contradicted

Duckworth’s testimony that Kamienski had used that very towel to polish his boat with polishing

wax.” (ECF No. 186, at 22). In this instance, Plaintiff alleges these claims against Millard (as an

investigator), Mahony, and Churchill. Accordingly, the Court examines whether these Defendants

are entitled to qualified immunity. As explained above, there is no constitutional claim to a failure

to investigate or to properly analyze hair and fiber evidence. See Geness, 902 F.3d at 354 n.5; see

also Thomas, 290 F. Supp. 3d at 386. As such, there is no established due process right that

Defendants Churchill, Mahoney, and Millard violated, thus qualified immunity applies. (See, law

on qualified immunity, Section IV, p. 10-1 1).

37
Plaintiff reframes this allegation in his supplemental brief, arguing that “Attorney Millard

instructed the Ocean County Sheriffl’s] Office criminalist Jeffrey Thompson to not bringexculpatory FBI hair and fiber and petroleum distillate reports to court, even though Thompson

had reviewed these reports with Millard as part of his trial testimony preparation, [they] were

maintained in his office and both he and Millard knew Thompson was going to testify aboutreceiving the FBI reports and their lack of significances to the investigation.” (P1. Supp. Br., ECF

No. 186, at 22). Plaintiff is essentially arguing that such conduct constitutes a Brady violation of

the due process right “to not interfere with defense counsel’s access and use of exculpatory

evidence.” (See P1. Supp. Br., at 22-23). More specifically, Plaintiff alleges that Defendant Millardhad several conversations with Thompson in preparation for his testimony in order to discuss the

FBI lab reports. As a result of discussions with Defendant Millard, Thompson did not bring theFBI lab reports to trial. (P1. SOMF, ECF No. 158 at ¶l5l-l55). At trial, Plaintiff alleges that

Thompson deceptively testified that he did not have copies of the Reports at the time of his

testimony when in fact he deliberately left the FBI lab reports in his office. Moreover, Thompsonresponded to questions regarding to the FBI lab Reports, even though the FBI lab Reports were

not marked or introduced themselves. (Id. at ¶l56-57, see also Ex. B SAO7IO, SA 0725-26). In

addition, Thompson also concluded that the results of the FBI lab Reports were inconclusive. (Id.

at ¶158, see also Ex. B SAO7IO). Based upon the record before the Court, it does not appear there

was any objection to Thompson’s testimony by Kamienski’s attorney regarding the failure to bring

38
material to a defendant’s guilt. 373 U.S. 83, 87 (1963). The Supreme Court, in Giglio v. United

States, 405 U.S. 150, 154 (1972), has extended the Brady rule to include “evidence regarding

impeachment ofwitnesses and the government’s obligation to produce to the defense impeachment

material.” United States v. Walton, 430 F. App’x 141, 148 (3d Cir. 2011); see also United States

v. Bagley, 473 U.S. 667, 676 (1985) (“Impeachment evidence, however, as well as exculpatory

evidence, falls within the Brady rule.”). “[E]vidence is material only if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result ofthe proceeding would

have been different.” Bagley, 473 U.S. at 682. Evidence is not suppressed if the Plaintiff could

have obtained it “from other sources by exercising reasonable diligence” or “either knew or should

have known of the essential facts permitting him to take advantage of any exculpatory evidence.”

United States v. Ferdomo, 929 F.2d 967, 973 (3d Cir. 1991). Moreover, “{t]he purpose of Brady

is not to require the prosecution to disclose all possibly favorable evidence to the defense but to

make certain that the defendant will not be denied access to evidence which would ensure him a

fair trial.” Wilson v. Beard, 589 F.3d 651, 659 (3d Cir. 2009). However, “[ut is well settled that

prosecutors are entitled to absolute immunity from claims based on their failure to discloseexculpatory evidence, so long as they did so while functioning in their prosecutorial capacity.”

Yarns, 465 F.3d at 137. Regarding the Brady obligations of police officers or investigators, those

obligations were not clearly established until 1995, when the Supreme Court decided Kyles v.

39
suggests that the blankets wrapping the victims’ bodies came from their car and ‘not from the

blond-haired Plaintiffs boat.” (Id. at ¶ 159). In response, Defendant argues that “this claim standslogic on its head,” indicating that just because Thompson testified that the Reports wereinconclusive, it does not equate to innocence. (ECF No. 194 at ¶ 5). Moreover, as Defendantsstated previously, Plaintiffs trial counsel had the FBI Lab Reports and cross-examined Thompsonin reference to the results. (Id.; see supra Allegation 5).

Plaintiff avers that this allegation relates to Defendant Millard regarding his questioning of

Thompson. Mr. Peduto cross-examined Thompson about the reports:

Q. Mr. Thompson, do you have all of your reports that were made with respect to

this case in front of you?

A. I have pages 1 through 16 . . . of the report. And I have the report on the

fingerprint work and the report on the board.

Q. . . . [D]id your signature appear on any other reports, as far as you know, with

this case?A. Only the submissions to the FBI.

Q. And where are those?

A. I don’t have a copy of them.

Q. You mean you don’t have a copy of them with you, but—

A. That’s correct, sir.

Q. So there are some submissions to the FBI. And how about their response back

to you; do you have those?

40
Q

A. I myself do not, sir.

(Ex. B., SAO71O; SA0725-0726).

According to Millard, this report was provided to defense counsel for the criminal

defendants prior to the 1988 criminal trial as part of the initial discovery package. (See Millard’s

Responses to Second Request for Admission and Second Set of Interrogatories, ECF No. 155-29,

at 2). Even further, in Millard’s deposition dated March 1, 2017, he testified that the FBI Report

was “absolutely” sent to defense counsel, relating to the DNA found at the scene, because he

recalled, “they summed up — they opened up — they repeatedly stated to the jury that the report in

question — or that there was no forensics, no positives. They know that we submitted the documents

to the — to the FBI...” (Dep. Of Millard, ECF No. 155-18, at T25:9-23). Thus, all allegedexculpatory evidence had been produced and disclosed to Plaintiffs trial counsel. Accordingly, no

Brady violation has been alleged.

41
g

Investigator Laurel Hester on or about September 28, 1983. (Ex. 66).

(P1. Supp. Br., ECF No. 186, at 24). Plaintiff avers that the withholding of Investigator Hester’s5notes violates Kamienski’s “due process rights to exculpatory evidence in possession of

investigating officers.” Brady v. Maryland, 373 U.S. 83 (1963); (P1. Supp. Br. at 29). According

to Plaintiff,

At the time of the trial in 1988, the Ocean County Prosecutor’s Office possessed

handwritten notes of an initial interview with Jeffrey, which had been conducted

and memorialized by Investigator Hester in 1983. Hester’s notes indicate thatJeffrey said he and Barbara DeToumay were together at the window in his room at

the Holiday Inn and saw the car that Barbara DeTournay was waiting for pull into

the hotel parking lot at “exactly 6:15 pm” [double underscored in original]. Hester’snotes further indicate that Jeffrey was confident about this because at the time he

was “looking at [his] watch.”

(P1. SOFat21O).

At Kamienski’s trial, the report filed by Hester of the interview with Jeffrey was disclosed

to Kamienski; but the investigation notes of Hester were not disclosed. Hester did not testify at

trial. Millard called Sidney Jeffrey, III as a witness in the State’s case in chief, and used Jeffrey

to testify as to the last time Barbara DeTournay was seen alive. (ECF No. 169, 208). Accordingto Plaintiff, Millard elicited testimony from Jeffrey that Barbara DeTournay arrived “about five

o’clock in the afternoon” at the Holiday Inn where Jeffrey was hiding the three kilos of cocainethat were to be sold later that evening. (Ex. B, 5A1474). Millard also elicited testimony that Jeffrey

Laurel Hester has died since the time of the investigation.

42
when Barbara DeTournay was last seen alive because, according to these notes, Jeffrey was

standing with her in a bedroom at the Toms River Holiday Inn and looking at his watch at the time,

which showed 6:15 p.m., “exactly.” (P1. supp. Br. at 24-25). According to Plaintiff, without these

interview notes, his trial counsel

was not aware of, and thus not able to pin down, the precise time when Barbara

DeTournay was last seen still alive by a witness, and, thus, defense counsel was

unable to show Barbara could not have been already murdered and stowed in

Alongi’s boat in his back yard at around 6:45 p.m., which is when Duckworth

claims she and Kamienski arrived at Alongi’s house and saw the bodies.

(Id.)

In response, Defendants argue that Plaintiff’s trial counsel never requested any of the notes

used to formulate reports. (Def. Rep., ECF No. 194, at 4). According to Defendants, though

Kamienski asserts that he did not have information that Barbara DeTournay was picked up at 6:15

p.m. and the time was misrepresented to be 6:00 p.m., this central allegation by Kamienski is

completely untrue because Mahony submitted affidavits in support for search warrants which

disclose same. It states:

On Sunday, September 18, 1983, the victims visited Sidney Jeffrey at the HolidayInn. They advised Jeffrey that the deal was being delayed until Monday, September

19, 1983, as the purchasers would not be able to assemble the necessary cash until

that time. On Monday afternoon, September 19, 1983, Barbara DeTournay arrived

at the Holiday Inn, Toms River, and went to the room of Sidney Jeffrey. She advisedhim that the transaction was under way and that Henry N. DeTournay was at the

time meeting with the people who were going to purchase the cocaine. She further

advised that if all went well, she would be picked up outside the lobby door of the

Holiday Inn at 6:15 P.M. and transported to the meeting place to deliver the cocaine.

At approximately 6:15 P.M., Barbara DeTournay looked out of the window and

informed Jeffrey that the car which was to transport her to the meeting place was

43
when Barbara DeTournay was last seen alive. Moreover, Jeffrey testified at trial, and Plaintiffs

counsel had opportunity to cross-examine him on the time that he last saw Barbara DeTournay

alive. There is no cited reference by Plaintiffthat Plaintiffs trial counsel sought to clarify this fact

at trial.

Second, regarding whether the failure to turn over these allegedly exculpatory investigator

notes violated Brady, no such due process right existed at the time of the investigation (1983-

1989). Plaintiff primarily relies on State v. Dabas, 215 N.J. 114 (2013) and State v. W.B., 205

N.J. 588 (2011) to support the proposition that “rough witness notes must be maintained so that

they can be made available to the defense for use at trial” and that defendants failure to maintain

these notes, and withholding of these potentially exculpatory notes violated his due process. (P1.

Supp. Br., ECF No. 186, at 24).

More specifically, in 2004, the New Jersey Supreme Court first expressed disapproval of

law enforcement officer’s destruction of notes from interrogation sessions, explaining it is “a

practice that is apparently common, but one that we disapprove of.” State v. Cook, 179 N.J. 533,

542 n.3, 847 A.2d 530, 535 (2004). Since then, in 2011, the New Jersey Supreme Court relied on

New Jersey Court Rule 3:13-3(b), which provides for pre-indictment discovery, and held that “law

enforcement officers may not destroy contemporaneous notes of interviews and observations at

the scene of a crime after producing their final reports.” W.B., 205 N.J. at 607. The Supreme Court

44
destruction of interview notes, and in determining that the preservation of interview notes was nota clearly established right, explained

WB. is not a decision of from the United States Supreme Court and

does not interpret the United States Constitution. Therefore, it does

not reflect a federal constitutional right. In addition, it does not

appear that WB., or the cases to which it cites, relied on any New

Jersey constitutional provisions in determining that law enforcement

officers must preserve notes. Instead, the New Jersey Supreme

Court ruled that the preservation was required pursuant to the New

Jersey Rules of Court. Id. at 608-09. Thus, the preservation of notes

does not even appear to be a New Jersey constitutional mandate.

While not raised by Plaintiff, the Court also notes that in the Third

Circuit, federal agents as well as state or municipal officers working

with federal agents on a federal investigation are required to

preserve their rough notes from interviews with prospective trial

witnesses. See United States v. Vella, 562 F.2d 275, 275-76 (3d Cir.

1977). Vella, however, does not apply to state, county, or municipal

officers’ conduct in the course of a state, county, or municipal

investigation.

Zisa v. Haviland, No. 17-5551, 2018 U.S. Dist. LEXIS 180823, at *5152 (D.N.J. Oct. 19, 2018).

Here, at the time of the investigation (1983 to 1988) and trial (1988), there was no clearly

established right to maintain interview notes, or to produce such interview notes. Accordingly,

Churchill, Mahony, and Millard are entitled to qualified immunity.

45
Hester of an interview with Arthur (Buddy) Lehman. (P1. Supp. Br., ECF No. 186, at 26). Plaintiff

argues that the trial testimony of Lehman was significant in that Lehman testified that he had

spoken with Plaintiff in person after Nick DeTournay’s body had been discovered, but before

Barbara DeTournay’s body had been recovered. (P1. Supp. Br. at 27). According to Plaintiff,

“Lehman further testified that during this meeting Kamienski told him that both ofthe DeTournays

(‘my friends,’ plural) had been killed and disposed of in the Barnegat Bay.” (P1. SOF at ¶ 196,

SA2692). According to Plaintiff, this testimony was false, because Hester’s interview notes reflect

that Lehman and Plaintiff spoke on the phone, not in person, and only after both bodies had been

recovered by the OCPO. (Id. at 198). From Lehman’s trial testimony, Plaintiff argues that theProsecution was inferring to the jury that Kamienski was present at the murders because he knew

both victims had been killed. (ECF No. 169, ¶ 196, 198).

Hester’s interview notes reflect the following:

;C1. (1QL)PLE

ç.

1JL CLUO Ar4L- JJ{b -

I kW?L

I 9N

(Notes of Laurel Hester, ECF No. 192-5).

46
maintain interview notes, or to produce such interview notes at the time ofthe investigation (1983

to 1988) and trial (1988). See Zisa, No. 2018 U.S. Dist. LEXIS 180823, at *51..52. Accordingly,

Churchill, Mahony, and Millard are entitled to qualified immunity.

47
not draft or handwritten) of an interview of a confidential informant by Investigator Laurel Hester,

which memo was created and filed on April 28, 1986. (Ex.64). The memo specifically references

setting up a follow up meeting between the confidential informant and Churchill.” (P1. Supp. Br.,

ECF No. 186, at 27). According to Plaintiff, Buddy Lehman was a confidential informant andMillard, Churchill, and Mahony failed to disclose this key witness’s status as a confidential

informant during the underlying criminal trial, and affirmatively and repeatedly misled the

criminal trial judge and Plaintiffs trial counsel about the Lehman’s status as a confidential

informant (“CI”) in violation of Giglio. (P1. Third Supp. Br., at 1).

On June 7, 2013, Plaintiff filed motion to compel discovery in this matter. (ECF No. 72-

15, at 8). Plaintiff states that as a result of that motion, the OCPO produced a memorandum of an

interview that had been produced to defense counsel. (P1. Third Supp. Br., at 3). Plaintiff relies

primarily on this memorandum captioned “Debriefing of CI 85-13,” dated March 15, 1985, and is

addressed to Prosecutor Turnbach from Investigator Hester. (Confidential Informant (“CI”)

Memo., Mar. 15, 1984, ECF No. 192-4). Plaintiff contends CI 85-13 is Buddy Lehman, but the

memo does not identify Lehman as the CI. The memo states that, following the Cl’s arrest onMarch 12, 1985, the CI has agreed to “cooperate jointly with the New Jersey State Police and the

Ocean County Prosecutor’s Office.” (Id.) The memo then discusses the DeTournay homicide:

48
y 

ation where cocaine

was distributed following the homicide, was at Island Heights Condominiun

where Joseph Màrzeno was staying. According to the CI, Marzeno had

half pound blocks of cocaine, and carried a 38 revolver.

It should be noted that Marzeno had been identified previously by a

New Jersey State Police informant was nducting illegal business withAlongi at a “safe house” located at 1895 Monitor Drive, Torns River. The

bayfront house, owned by Joseph lannuzzi, a politician from Newark, was

the scene of a search warrant execution on October 29, 1984. At thattime, the house was observed to be gutted.

(Id. at 2). It also discusses the Cl’s contacts with Plaintiff Alongi:

CI 85-13 was ,also questioned regarding a threatening type phone call

made by Alongi to Kaminski. The CI stated he had met Alongi at.a restaurE

at which time Alongi stated he felt Kaminski was avoiding him. At that

point, the CI made the call to Kaminski in Florida on Alongi’s behalf.

CI- 85-13 further states that subsequent to Alongi’s arrest by DEA, approx: mately two months after the DeTournay homicide, Alongi had bragged to

the CI that he had a substantial quantity of cocaine in his house, consealedin a video cassette recorder.

Presently, CI 85-13 is re-establishing contact with Anthony Alongi, who

is believed to be presently distributing cocaine, as well as bookmaking

with an unknown subject. Also, it was reported that Alongi’s present

girlfriend, in addition to Jackie Sullivan, is Joni Wilbert.

According to CI 85—13, Alongi is hanging out at Bobby G’s, the restaurant

bar at Bey-Lea Golf Course. The undersigned learned from a reliable

source that Roger Munson plays in a band at Bobby G’s.

(Id. at 3). According to Plaintiff, “[tjhere are just too many coincidences to reasonably conclude

otherwise” that Lehman was a CI. (P1. Third Supp. Br. at 3). In further support, Plaintiff points to

his own declaration. (Id.) In his declaration, Plaintiff claims that on October 28, 1985, Mahony

conducted a search of his boat, pursuant to a search warrant to look for “illegal drugs/pills.” (P1.Deci., ECF No. 192-2, at ¶ 2). During the search, Duckworth turned over 100 pills that Plaintiff

believed to have been Quaaludes, but were instead Valium. (Id. at ¶ 5-6). After this, Plaintiff and

Duckworth were arrested, and the boat was seized. (Id. at 7). Plaintiff essentially claims that he

49
to Plaintiff, Lehman was present during the transaction, and because Plaintiff did not have the

money to pay for the pills, Lehman paid, with the understanding that Plaintiff would repay Lehman

at a later date. (Id.) According to Plaintiff, he learned at trial that Lehman was arrested on March

12, 1985, for possession of cocaine. (Id. at ¶ 11). This is the same date that the CI identified in the

Debriefing of CI 85-13 memo, dated March 15, 1985, was arrested.

Plaintiff also points to an additional C.I. Debriefing memo, from Hester to Prosecutor

Turnbach, dated April 28, 1986, of another CI (whose identity is unknown to this Court), which

reported

Prior to the’ interview taking place, the source had indicated

to the F.B’. I. that he could identify a subject whom’ he believesknows about the DeTournay homicide and how that individual could

be induced to cooperate. He identified this subject as being •-.A-R’U !-BUDD,Y!’ LEHNAN (if). Lehman.hsbe.an..,interview previously concerning his knowledge of the homicide. ‘It should be’ emphasized that the source i’s in need o assistance and may be professing to know more that he does or may be holding back information inorder to grandstand at.a more opportune time.

(CI Memo, April 28, 1986, ECF No. 192-6). The CI further discusses his contacts with Lehman,

and the memo states that “Lehman has implied to the source that he is a paid informant.” (Id. at

3).

Defendant insists whether Lehman was “an informant is speculative . . .“ and “he was

definitively not an informant for the OCPO.” (ECF No. 194, at 10); and furthers there is no evidence

that Lehman was an informant. (Def. Third repl br., ECF No. 205, at 9). According to Defendants,

Lehman testified that his arrest could have been either March 12, 1985 or March 15, 1985, and

50
At trial, Lehman testified on cross-examination that he was not a police informant, but that

he “gave some information to the Prosecutor’s Office on this case.” (Ex. B, Sa274 1). The following

exchange also occurred: “Q. [Y]ou never were a paid informant for the Ocean County Prosecutor’sOffice? A. No, sir. No, sir.” (Ex. B, Sa2742).

First, it is important to note that Laurel Hester has died, and the documents Plaintiff alleges

are attributed to Hester are subject to an authentication argument. Moreover, based on the evidence

in the record, it is not clear whether Lehman was a confidential informant. That is, without

corroboration that Lehman was the CI, the allegation is speculative at best. There is nothing within

that memo that clearly identifies Lehman as CI 85-13. The CI memo dated April 28, 1986 of theunknown CI specifically alleged that Lehman had told the unidentified informant that Lehman was

aCT. (See CI Memo, April 28, 1986, ECF No. 192-6, at 3). In such an instance, the Supreme Court,

in Giglio, has extended the Brady rule to include “evidence regarding impeachment of witnesses

and the government’s obligation to produce to the defense impeachment material.” Walton, 430 F.

App’x at 148; see also Giglio, 405 U.S. at 154-55. During this case, Plaintiff never explored the

issue of either the unknown confidential informant or persons other than Hester who may have

knowledge of it during the discovery period.

However, while this may be a Brady violation, “[i]t is well settled that prosecutors are

entitled to absolute immunity from claims based on their failure to disclose exculpatory evidence,

so long as they did so while functioning in their prosecutorial capacity.” Yarns, 465 F.3d at 137.

51
Mahony and Churchill are entitled to qualified immunity.

52
Investigators Churchill and Mahony and Attorney Millard withheld an

exculpatory investigative memorandum dated November 3, 1983 of an

interview taking place on September 29, 1983 of a boating supplier

employee, which memorandum was created by Investigator Edward

Murphy for Defendant Churchill’s attention, as well as a handwritten draft

of a similar memorandum from Investigator Hester for Churchill’s

attention, dated October 24, 1983, reflecting her interview of a boat yardemployee. (Ex. 79 and OCPO-0241-43).

(P1. Supp. Br., ECF No. 186, at 28). In weighing this allegation, the Court reviewed a

section of the statement of facts captioned “Kamienski Boat Repair.” (ECF No. 158 at 55-56).

Plaintiff argues that Mahony “deliberately withheld both sets of interview notes of the supplier

and worker (DeRouville) from the defense.” (Id.) Plaintiff frames the withholding as a violationof Kamienski’s due process right to exculpatory evidence. According to Plaintiff, the disclosure

of these notes would have essentially rebutted Millard’s closing argument declaring that

Kamienski pulled his boat from the bay in an effort to hide his personal involvement in the

murders; when, instead, the OCPO had actually received statements from a yacht parts supplierand the boatyard worker stating that the boat had been previously scheduled for removal for repair.

Conversely, Defendants argue this claim as nonsensical because: (1) Kamienski testified and failed

to explain the rationale behind the removal of his boat; (2) Kamienski’s trial counsel never

conducted any investigation regarding the boat; (3) Mahoney’s supplemental report, dated

November 4, 1983, referenced that the boat (For Play 111) was in for repairs; and (4) Kamienski

53
individuals testified as witnesses during the trial. However, during closing statements at trial,

Millard referenced Kamienski’s boat being removed from the boatyard:

•

. . Ten-thirty the night of the nineteenth the deal went down.

The twentieth Paul Kamienski’s boat is hauled out of the water or is

taken to the Toms River Boat Works. Mr. Kamienski told us that, he

admitted that on the stand. You look at that, the twentieth, its right

on top ofthe nineteen. But that’s not the boat that Donna Duckworth

saw the bodies in. I did not put any witnesses that it was any boat

other than the boat in Tony Alongi’s yard. That’s another reason,

that he got his boat out of the water, because he knew what

happened. He knew those bodies were dumped out in the bay and he

was going to get his boat out of the water just as fast as possible

because he didn’t know if those bodies were going to be found or

not, or whether they were going to be found, if they were found at

some point, maybe they didn’t know exactly what day, they were in

the water, and he’d be able to say, hey, look at it, don’t talk to me,

my boat was out of the water.

(Ex. B, SA4327-4328).

As discussed in Allegation 7, supra, the Court in Zisa clarified that the preservation of

interview notes was not a clearly established right at the time of the investigation. Zisa, No. 2018

U.S. Dist. LEXIS 180823, at *51..52. At the time, note-preservation, in particular, has been

construed as neither a federal nor state constitutional mandate. id. (emphasis added). Importantly,

Millard was acting as an advocate delivering his argument. As such, Millard has absolute immunity.

(ECF No. 158 at 37-38). Millard was the “sole prosecutor who tried the case” and was responsible

for selecting witnesses, physical evidence, and conducting both the opening and closing. (See, law

on prosecutorial immunity, Section III, pp. 5-10). Prosecutors may successfully invoke the

54
subject to qualified immunity. Kamienski did not seek the production of Defendants’ investigative

notes. (ECF No. 194 at 12). As noted above, qualified immunity is warranted where the

investigative conduct did not amount to a violation of a clearly established right. With respect to

the actual withholding, such concealment will only give rise to violation of a clearly establishedright if “[Plaintiff], in the exercise of diligence, could not have discovered [the] evidence himself.”

Munchinski v. Solomon, 747 F. App’x 52, 61-62 (3d Cir. 2018). Here, at the time of the

investigation (1983 to 1988) and trial (1988), there was no clearly established right to maintain

interview notes, or to produce such interview notes. Zisa, 2018 U.S. Dist. LEXIS 180823, at *5J

52. Moreover, Kamienski signed a consent to search his boat, (Ex. D, Supp. Investigation Rep.,

Ex. D, ECF No. 194-4, at 3), and was privy to, the investigative work being performed by Churchill

and Mahoney, and could have pursued a production of the interview notes, but he failed to do so.

In sum, the motion is denied because Mahoney and Churchill are subject to qualified

immunity. That is, they did not violate any clearly established right at the time of the subjectconduct, State v. Cook, 179 N.J. 533, 542 n.3, 847 A.2d 530, 535 (2004), and Millard is subject to

prosecutorial immunity.

55
Plaintiff reframes the Allegation in his supplemental brief as:

In a September 18, 1987 witness interview memorandum, Investigator

Mahony fabricated statements by Duckworth saying that she said she could

positively identify the suspect blanket and towel recovered with the

DeTournays’ bodies as belonging to Kamienski and further she couldconfirm that the knot on the rope around Nick’s body has been tied by

Kamienski. The word Mahony ascribed in his report to Duckworth for the

blankets and towel was “identical,” and the word he said she used for the

knot was “unique.” (Ex. 47) (ECF No. 186, at 28).

Plaintiff asserts that the alleged statements within the subject memorandum were

‘fabricated,” and, as such, violated Plaintiffs “due process right to a fair trial, and to not have

investigative officers create false or tainted statements of evidence in possession of investigating

officers or prosecutors.” Napue v. Illinois, 360 U.S. 264, 269 (1959); (ECF No. 186 at 29-30).Defendants assert that Duckworth provided eyewitness testimony regarding Kamienski’s

involvement in a drug conspiracy, and Mahony’s report “speaks for itself.” (ECF No. 166, ¶ 178-

79). However, Plaintiff alleges, “Duckworth repeatedly told Mahony that the towel and blankets

were ‘similar’ to, or ‘like’ ones she had seen on Kamienski’s boat; but she never stated that they

were identical.” (ECF No. 158 at ¶ 287). Plaintiff argues that “a jury could infer that Mahony

created this false memorandum to coerce Duckworth into giving similar false testimony at trial”

or “it conveyed to the defense” that Duckworth’s testimony “was stronger than it really was.” (ECF

No. 186 at 30). This was an essential issue during discovery. So, it was exposed at Mahoney’s

deposition. The deposition states:

56
Q. She never said that’s the identical blanket.

A. Not to me.

Q. Not to you?

A. Not to me.

Q. She said they were identical?

A. They were similar.

Q. Did she say they were identical?A. She could’ve.

(Dep. of Mahony, Ex. D, T131:2-9).

As noted with regard to prior allegations, a constitutional due process violation cannot be

triggered by way of negligence. Daniels, 474 U.S. at 328. The misuse of the word “identical”

instead of “similar” connotes a minor negligent statement (at most). “[A] clearly established right

is one that is ‘sufficiently clear that every reasonable official would have understood that what he

is doing violates that right.” Mullenix, 136 S. Ct. at 308 (emphasis added).

This allegation relates solely to Mahony in an investigative capacity. Whether Mahony

used the words “identical” or “the same” or “similar” in describing the blanket and towel in thereport, it appears that he was characterizing Duckworth’s representation. There is no proof of an

intentional misstatement. Plaintiff argues that the jury could “infer” a fraudulent interest, however,he has not shown any facts that cold support such an inference. The Plaintiff has not submitted

57
section IV, pp. 10-1 1).

58
Investigator Mahony cannot establish probable cause for the search ofKamienski’s boat in 1985 that led to Duckworth’s arrest and conviction fordrug possession, and which, a reasonable juror could later be influenced by

her decision to cooperate with the OCPO against Kamienski.

(P1. Supp. Br., ECF No. 186, at 30). This argument is difficult to understand, but, as best

as the Court can comprehend it, it is as follows:

Plaintiff argues that Mahony’s failure to recall the substance of the probable cause that was

set forth within the affidavit to obtain a search warrant for Plaintiffs boat sparked a string of

unlikely events including the cooperation of Duckworth to testify against Kamienski. (ECF No.

158 at 41). Specifically, Plaintiff states that Kamienski’s “due process right to not have

investigative officers coerce cooperating witnesses to give false testimony” was violated. Hyslerv. Florida, 315 U.S. 411, 413 (1942); (ECFNo. 186, p. 34-35).

This argument was previously addressed by Judge Stanley Chesler, U.S.D.J. Judge

Chesler rejected Plaintiffs probable cause argument, as Kamienski “could not muster a scintilla

of evidence,” and the ruling was not challenged before the Third Circuit. (ECF No. 194 at 12). The

Third Circuit has shaped its preclusion doctrine such that, following a final judgment, the same

acts, witnesses, and documentation which were at controversy in a prior proceeding are barredfrom future litigation. Davis v. US. Steel Supply, 688 F.2d 166, 171 (3d Cir. 1982). Because thisissue is intimately linked to one having already been decided (the nature of Duckworth’s perjuredtestimony), and it would require all of the same persons and materials to re-attempt proving the

59
60
give false testimony against Kamienski, particularly as to his

possible ownership of the blankets and towel found with the

DeTournays’ bodies (2) the possibility that he tied the rope around

Nick’s body and (3) certain events that occurred on the night the

DeTournays were killed concerning her supposed trip Bamberger’s

(which later obtained credit card records show occurred a week

before the murders, not the night of (4) the trial transcript itself

shows Duckworth’s reluctance to say things like, “I recognize the

knot and can confirm it was tied by Kamienski.” One can almost

feel Millard having to drag this kind of testimony out of a very

reluctant Duckworth. The same thing can be gleaned with respect to

the blankets and towel. And this dynamic occurred both at trial and

before the grand jury.

(P1. Supp. Br., ECF No. 186, at 31). In response, Defendants argue that Duckworth has

never retracted her trial testimony. (Def. Supp. Br., ECF No. 194, at 7).

Plaintiffs allegations regarding Duckworth’s testimony are as follows. At trial, Millard

elicited testimony from Duckworth that on the night of the murders she was sent by Kamienski

and his co-defendants to a Bamberger’s department store (by implication, to allow Kamienski andhis co-defendants time to dispose of the bodies clandestinely). (P1. SOF, ECF No. 158, ¶ 169).

According to Plaintiff, Duckworth made a purchase at Bamberger’s on September 13, 1983 and

not September 19, 1983, as she had testified at trial. (Id. at ¶ 170). Plaintiffprovided documentation

concerning the correct date of purchase in his habeas action. (Id.; Ex. D, P22, P23). Duckworthtestified that she cannot remember whether the OCPO’s investigators (Defendants Churchill and

Mahony) ever confirmed the exact date of her trip to Bamberger’s. (Dep. Of Duckworth, Ex. E,

ECF No. 194-5; T95:2-7; see P1. SOF, ECF No. 158 at ¶ 171).

61
Duckworth and he concludes “one can almost feel Millard having to drag this kind of testimony

out of a very reluctant Duckworth .. . and this dynamic occurred both at trial and before the grand

jury.” (P1. Supp. Br., ECF No. 186, at 31).

Without citing to the record, Plaintiff states that Duckworth retracted her testimony

regarding the towels and blankets found with the DeTournays’ bodies, the clothesline knot she

stated was “unique” to Kamienski, and Kamienski’s being at the scene of the murders. (P1. Sec.

Supp. Br., ECF No. 186, at ¶ 11, 13). Defendants discount Plaintiff’s argument by noting thatDuckworth never retracted her trial testimony. (Def. Sec. Supp. Br., ECF No. 194, at 7).

Churchill and Mahoney are entitled to qualified immunity regarding this allegation.

Plaintiff argues that “pressuring” is shown by the facts set forth in the reframed allegation, and

that this conduct violated Kamienski’s due process right “where false testimony is used to obtain

a conviction.” (P1. Sec. Supp. Br., ECF No. 186, at J 13). Freedom from conviction based on false

testimony obtained from a “pressured” witness is a clearly established constitutional right. Hysler

v. Florida, 315 U.S. 411,413 (1942). In Hysler, the Court stated:

If a state, whether by the active conduct or the connivance of the

prosecution, obtains a conviction through the use of perjuredtestimony, it violates civilized standards for the trial of guilt or

innocence and thereby deprives an accused of liberty without due

process of law. Equally offensive to the Constitutional guarantees of

liberty are confessions wrung from an accused by overpowering his

will, whether through physical violence or the more subtle forms of

coercion commonly known as ‘the third degree.’

Id.

62
194-5, at T116:20-25). Even if Duckworth’s testimony regarding Bamberger’s was knowingly

false, there is nothing in the facts to indicate that Duckworth was under any pressure from

Churchill or Mahoney to testify falsely, and both have testified that they did not believe Duckworth

testified untruthfully. (Churchill Resp. to Req. for Admiss., Ex. W, ECF No. 194-23; Mahoney

Resp. to Req. for Admiss., Ex. Z, ECF No. 194-26; see Def. Sec. Supp. Br., ECF No. 194, at 11).

Because the facts Plaintiff has alleged are insufficient to show a violation of a clearly

established constitutional right, Defendants Churchill and Mahoney are entitled to qualified

immunity. See Walker, 905 F.3d at 144; Saucier, 533 U.S. at 201. Defendant Millard is entitled toabsolute prosecutorial immunity because all ofthe allegations refer to her questioning of her during

trial. As such, he was acting as an advocate and was “intimately associated with the judicial phase

of the criminal process.” Imbler, 424 U.S. at 430.

63
Plaintiff reframes the allegation in his supplemental brief as follows:

Attorney Milliard’s improper closing in which he personallyvouched for Duckworth and Lehman’s credibility; sent a conspiracy

charge to the jury after acknowledging there was no factual basis forit; and misstated that murder is a continuing offense and Kamienskicould be found guilty of murder if he helped get rid of the bodies

afterwards, even if he had no knowledge beforehand and did nothingat the time of the murders to help commit them.

(P1. Sec. Br, ECF No. 186, at 32). Plaintiff argues that these alleged misstatements violated his

“due process right to a fair trial, untainted by false or misleading information being presented to

the jury.” (id). Plaintiff acknowledges absolute immunity may ordinarily control except that

Millard’s conduct was so far beyond the pale of what is expected of an aggressive, but fair,

prosecutor, that absolute immunity does not apply. (Id.).

Plaintiff cites to some facts to support his contention. First, Plaintiff argues that Millard

“vouched” for the truthfulness of Duckworth’s and Lehman’s testimonies. (Id.). With respect to

Duckworth, Millard stated the following:

I’m telling you that is an eyewitness account of what occurred. (Ex.

B., Tr. Of Criminal Tr., at T276:3-4).

She’s not out to get anybody. She’s telling the truth. You saw Donna

Duckworth on that stand for about two days, and I submit she poured

her heart out here. She was gone over by three defense attorneys

every conceivable way and manner in which somebody can be gone

over, and I submit to you that her testimony was credible, it was the

truth. (Id. at T292:2-1O).

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that Duckworth testified that Alongi told her Kamienski was involved in the murders, when there

was no such testimony. (P1. SOF, ECF No. 158, ¶ 219). Defendant denies this allegation. (Def.

SOF,ECFNo. 166,219).

Third, Plaintiff contends that Millard told the jury that Kamienski removed his boat from

the Barneget Bay to shield his involvement in the DeTournay murders, and the Court corrected

same. (P1. SOF, ECF No. 158, ¶ 219). Millard stated:

The twentieth. Paul Kamienski’s boat is hauled out of the water oris taken to the Toms River Boat Works You look at that, the

twentieth, it’s right on top of the nineteenth. But that’s not the boat

that Donna Duckworth saw the bodies in. I did not put any witnessesthat it was any boat other than the boat in Tony Alongi’s yard. That’s

another reason that he got his boat out ofthe water, because he knewwhat happened. He knew those bodies were dumped out in the bayand he was going to get his boat out of the water just as fast as

possible because he didn’t know if those bodies were going to be

found or not, or whether they were going to be found, if they were

found at some point, maybe they didn’t know exactly what day, they

were in the water, and he’d be able to say, hey, look at it, don’t talk

to me, my boat was out of the water.

MR. CAMMARATA: I object to all of these comments.

THE COURT: Ladies and gentlemen, there is no testimony about

any of that.

(Ex. B., Tr. of Criminal Tr., at 1278:20-279:2 1).

Fourth, Plaintiff argues that Millard’s comments were outrageous because the OCPO

investigators had statements from a yacht parts supplier and the boatyard saying that Plaintifftook

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158, ¶ 221, 223). More specifically, Millard closed:

And I’m going to say does Paul Kamienski necessarily know thatthey’re going to get killed? I don’t think so. Not from the evidence

and the testimony that I’ve heard.

(Ex. B., Tr. Of Criminal Tr., at T276:15-19).

Even ifsome constitutional right were implicated, Defendant Millard is entitled to absolute

immunity for all the preceding claims. There is no exception to absolute immunity for conduct “sofar beyond the pale of what is expected of an aggressive, but fair, prosecutor.” (P1. Sec. Supp. Br.,

ECF No. 186, at 32). Absolute immunity “protects a prosecutor from § 1983 liability for virtually

all acts, regardless of motivation, associated with his function as an advocate.” Dory v. Ryan, 25

F.3d 81, 83 (2d Cir. 1994) (explaining that absolute immunity covers even conspiracy to present

false evidence at trial, even though “such a conspiracy is certainly not something that is properly

within the role of a prosecutor”). Instead, the functional test applies, and what matters is the nature

of the function performed rather than the way it was performed. Buckley, 509 U.S. at 269.

Defendant Millard’s conduct described above was “intimately associated with the judicial phase

of the criminal process,” because each of the above actions are acts he took while he was acting asan advocate for the state during trial, i.e., statements he gave during his closing summations.

1mb/er, 424 U.S. at 430. As such, for these acts, Millard is protected by prosecutorial immunity.

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In Plaintiff reframes this allegation is his supplemental brief as:

Attorneys Holzapfel, Kelaher, Lynch Ford and DeLigny andInvestigator Churchill personally failed to supervise the

investigation and prosecution and post-conviction litigationinvolving Kamienski.

(P1. Sec. Supp. Br., ECF No. 186, ¶ 16). Plaintiff then alleges broad due process violations for

failure to supervise. (Id. at ¶ I 6b). Plaintiffs facts relevant to the claims above are summarized as

follows:Defendant Holzapfel

As Ocean County Prosecutor while his office investigated, indicted, and tried Kamienski,

and opposed the trial judge’s JNOV ruling. Defendant Holzapfel directly supervised the First

Assistant County Prosecutor Terrence Farley and the Chief of Detectives, Defendant Churchill.(P1. SOF, ECF No. 158, ¶ 42). Plaintiff states that during Holzapfel’s tenure there was no person

with oversight of the appeals unit or ethics issues. (Id. at ¶J 44-45). However, during Holzapfel’s

deposition, the following exchange occurred:

Q. How about in the appeals area, was there one person who was in

charge of it?A. I honestly don’t remember.

(Dep. of Holzapfel, Ex. 0, ECF No. 155-17, at T12:13-15). Holzapfel never learned that his office

was investigating Kamienski for the DeTournay murders, never spoke to Defendants Churchill or

Mahony about it, never communicated with Farley regarding the prosecution, never attended the

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Defendant Kelaher

Ocean County Prosecutor Kelaher held that during the time when Kamienski’s habeas

petition was pending, Defendant Kelaher directly supervised First Assistant County Prosecutor

Terrence Farley. (P1. SOF, ECF No. 158, ¶ 65). Defendant Marzareila was the head of the appeals

unit under Kelaher, and there was no one with oversight of ethics issues. (Id. at ¶J 65, 67). Kelaher

testified that he was unaware that Kamienski filed his habeas petition in June 2002, but learned

that Kamienski had filed an appeal of its denial before leaving office. (ld. at ¶ 69). Plaintiff states

that in May 2003, Kamienski’s counsel alerted Kelaher on several occasions of possible issues

with Kamienski’s conviction, and Kelaher refused to permit the OCPO staff to further

communicate with Kamienski’s counsel. (Id. at ¶ 71).

However, in Kelaher’s discovery responses, he states:

I was the Ocean County Prosecutor from 2002 until June 2007. In

May 2003 plaintiffs counsel Timothy Mcinnis contacted the Ocean

County Prosecutor’s Office and stated that he had been retained by

plaintiff to represent him in the pending habeas corpus petition. As

set forth in the attached letter dated October 23, 2003 from me to

then Attorney General Peter C. Harvey, then Executive Assistant

Prosecutor John J. Mercun allowed Mr. Mcinnis to view evidence

in the criminal case. When it was determined that Mr. Mcinnis was

not the attorney of record for Paul Kamienski, any further requests

from Mr. Mcinnis were denied. As per the attached letter dated

October 23, 2003, Mr. Mcinnis was advised that any further

dealings with him would be under the auspices of the court in

official pleadings.

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Defendant Lynch Ford

As Ocean County Prosecutor while Kamienski’s appeal was pending in the Third Circuit,

Defendant Lynch Ford directly supervised First Assistant County Prosecutor Defendant DeLigny

for most of her tenure. (Id. at ¶ 79). Defendant Marzarella was head of the appeals unit under

Lynch Ford, and Defendant DeLigny was the ethics officer. (Id. at ¶ 81-82). Lynch Ford received

two letters from Kamienski’s counsel at the beginning of his habeas petition. (Jd. at ¶ 77). Oneasked Lynch Ford to personally look into Kamienski’s case and included Kamienski’s opening

brief, and the other asserted that the OCPO had submitted a false and misleading brief on

Kamienski’s direct appeal and included backup documentation. (Id.). Lynch Ford denies receiving

these communications. (Id. at ¶ 78). Lynch Ford has no specific recollection of discussing

Kamienski’s appeal with Defendant Marzarella but recalls discussing the Third Circuit’s decision

and the OCPO’s petition for certiorari. (Id. at ¶J 84, 86). She never discussed the Third Circuit

litigation with Marzarella before he filed OCPO briefs. (Id. at ¶ 89). Lynch Ford had no formal

system in place for being briefed by her staff about pending criminal appeals. (Id. at ¶ 85). Lynch

Ford and Defendant DeLigny jointly decided not to act on Kamienski’s request that the OCPO

withdraw its appeal based on the claimed deficiencies. (Id. at ¶ 90).

Defendants admit most of the facts above, but deny that they are relevant to this action and

deny that Defendants submitted a false brief. (Def. SOF, ECF No. 166, ¶ 77-79, 8 1-82, 84-86,

120).

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at ¶ 117). DeLigny testified that his first and only involvement with Kamienski’s case was after

the Third Circuit’s reversal, when the office was considering filing a petition for certiorari withthe U.S. Supreme Court. (Id. at ¶ 118). As First Assistant County Prosecutor, DeLigny spoke with

Kamienski’s counsel about the Third Circuit appeal and evidentiary deficiencies including the knot

and rag testimony by Duckworth. (Id. at ¶ 119). After this call, Kamienski’s counsel sent

Defendant DeLigny two letters substantiating Kamienski’s assertions that the OCPO had

submitted a false and misleading brief on Kamienski’s direct appeal and including additional

exculpatory evidence. (Id. at ¶ 120). DeLigny denies receiving this documentation. (Id. at ¶ 124).

Kamienski’s counsel also sent DeLigny another letter requesting access, for supervised forensic

tests, to the towel used to convict Kamienski. (id. at ¶ 121). Defendant DeLigny did not respondto this request. (Id. at ¶ 121). After speaking to Kamienski’s counsel, DeLigny spoke with

Defendant Marzarella about the alleged evidentiary problems regarding Kamienski’s conviction.(Id. at ¶ 122). DeLigny did not ask Marzarella if the accusations had merit, and he did notindependently investigate, but he mentioned the call with Kamienski’s counsel to Defendant Lynch

Ford. (Id. at ¶ 123). DeLigny did not provide any supervisory oversight and was not involved with

Kamienski’s federal appeal in any way. (Id. at ¶ 129).

Defendants admit most of the facts above but deny that they are relevant to this action.

(Def. SOF, ECF No. 166, ¶ 116-124, 126, 129).

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murders until Kamienski’s habeas petition. (Id.). At his deposition, Churchill acknowledged that

during the investigation of the DeTournay murders and drug transactions, he “basically ] was in

charge of the investigators from the Prosecutor’s office who worked on the case.” (Dep. of

Churchill, Ex. U, ECF 194-2 1, at T16:10-12; see P1. SOF, ECF No. 158, ¶ 238). He performed

supervisory duties during the investigation (1983), the grand jury indictment (1987), and the trial

and post-trial motions (1988). (P1. SOF, ECF No. 158, ¶ 237). He continued these supervisory

duties throughout the appeals process between 1989 and 1992, during the filing of Kamienski’s

habeas petition between 2002 and 2006, and through the Third Circuit appeal in 2006. (Id.).

Churchill also performed investigative functions for the OCPO from 1970 through 1995, and from

1997 to 2006. (Id. at ¶ 239). These duties continued throughout the Kamienski investigation. (Id.

at ¶ 239-40). Churchill’s investigative functions included interviewing witnesses, reviewingevidence, meeting daily with the team of agents conducting other aspects of the investigation,

conducting a polygraph test, and choosing what evidence to run through forensic examination. (Id.

at ¶ 240). Churchill discarded all the notes he possessed from the investigation. (Id. at ¶ 242).

Plaintiff claims that Defendant Mahoney, under the supervision of Churchill and following the

policies and practices ofthe OCPO, deliberately withheld interview notes showing that Kamienski

had a legitimate reason for pulling his boat from the Barnegat Bay after the murders. (Id. at ¶J

252-54). Defendants deny this allegation, asserting that the reports based on these notes were

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due process rights, Defendants Holzapfel, Kelaher, Lynch Ford, and DeLigny are entitled to

absolute prosecutorial immunity. The Supreme Court has made clear that prosecutorial immunity

extends to supervisory and administrative duties which “require legal knowledge and the exerciseof related discretion, e.g. in determining what information should be included in training,

supervision, or information-system management.” Van de Kamp, 555 U.S. at 344. All the actions

and non-actions alleged above are closely related to the judicial process because they involve theconduction of ongoing criminal trials and a related civil suit. See id. The fact that they were

supervisory in nature is irrelevant. Id. at 344. Plaintiff attempts to create an “extreme indifference”

exception to absolute immunity, but such an exception does not exist. (P1. SOF, ECF No. 158 at

9). Absolute immunity exists to protect the independence of the prosecutor’s office, and the

Supreme Court has judged that it is better for some unscrupulous prosecutors to go unpunished

than to subject honest prosecutors to the constant fear of retaliation from disgruntled defendants.

Van de Kamp, 555 U.S. at 340, 345 (explaining that the purpose of prosecutorial immunity is to

protect the proper functioning of the office rather than individual prosecutors).

Investigator Churchill

Plaintiff has also failed to make out a claim against Defendant Churchill. Supervisory

officials “may not be held liable for the unconstitutional conduct of their subordinates under a

theory of respondeat superior.” Ashcrofl v. Iqbal, 556 U.S. 662, 676 (2009). Instead, supervisory

officials can only be held liable if they personally violate a constitutional right. Id. at 683. When

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would confront a particular situation; 2) the situation involves a difficult choice or a history ofimproper behavior; and 3) a supervisee’s wrong choice will often lead to a deprivation of

constitutional rights. Carter, 181 F.3d at 357.

A supervisor loses the protection of qualified immunity only if the supervisor’s failure to

train or supervise causes the violation of a constitutional right which was clearly established at the

time ofthe alleged violation. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). As explained above,

a “clearly established” right is one which is beyond debate and obvious to any reasonable official-- defined by applicable Supreme Court precedent, controlling authority in the jurisdiction, or a

robust consensus in the Courts of Appeals. Mullenix, 136 S. Ct. at 308; Ashcroft, 131 S.Ct. at 2083-

84; Barna v. Rd. ofSch. Dirs. ofthe Panther Valley Sch. Dist., 877 F.3d 136, 142 (3d Cir. 2017).

Although part one of the deliberate indifference test may be satisfied here (an investigator

likely knows that his underlings will confront the choice of which evidence to preserve and present

to the other side), there is little to no evidence of part two or part three. Carter, 181 F.3d at 357.

With regard to element two, Plaintiff has not detailed any history of similar bad behavior which

would have placed Churchill on notice that his investigators required more supervision.Additionally, on element three, at the time of the investigation (1983 to 1988) and trial (1988), thedestruction of investigatory notes was no clearly established (and there was no obligation to train

the officers differently). See, gcjjerally, Kisela, 138 5. Ct. at 1152 (quoting White, 137 5. Ct. at

551).

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This matter having come before the Court on Defendants Marlene Lynch Ford, Thomas F.

Kelaher, James W. Holzapfel, Ronald F. DeLigny, John Mercun, Samuel J. Marzarella, E. David

Millard, James A. Churchill, and Daniel T. Mahony’s (“Defendants”) Motion for Summary

Judgment, (ECF No. 155), and Plaintiffs motion to supplement the record (ECF No. 224) and the

Court having carefully reviewed and taken into consideration the submissions of the parties, as

well as the arguments and exhibits therein presented,

IT IS on this 17th day of September, 2019,

ORDERED that Defendants’ Motion for Summary Judgment (ECF No. 155) is granted;

and it is further

ORDERED that Plaintiffs Motion to Supplement the Record (ECF No. 224) is denied as

moot.

PETER G. SHERIDAN, U.S.D.J.

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