12/02/10 — Goldsboro responds to lawsuit from Dail

View Archive

Goldsboro responds to lawsuit from Dail

By Matthew Whittle
Published in News on December 2, 2010 1:46 PM

The city of Goldsboro has responded to the lawsuit filed by recently exonerated Dwayne Dail and asked that the man's claims be dismissed.

The lawsuit, filed in Wayne County District Court in August by Dail, has since been removed to federal court as Dail, who spent 18 years in prison for a crime he didn't commit, is alleging that his constitutional rights to due process and the right to not be subject to improper deprivations of liberty and the pursuit of happiness were violated by the city and several police officers also named in the suit, including Chief Tim Bell, former Chief Jackie Warrick, officer John Wiggins, officer Ronald Melvin, and the estate of former Chief Chester Hill.

The suit, which is seeking compensatory damages in excess of $10,000 and recovery of costs, alleges that as a result of the "defendants' willful, wanton, reckless, and deliberately indifferent acts and omissions, Mr. Dail sustained injuries and damages, including, among others, the following: personal injuries, physical injuries, physical pain and mental suffering, severe mental anguish, emotional distress, loss of income, humiliation, indignities and embarrassment, degradation, and restrictions on all facets of personal freedom including but not limited to diet, sleep, personal contact, educational opportunity, vocational opportunity, personal fulfillment, family relations, reading, enjoyment of life, and expression of his own desires and interests."

Dail's suit explains that in 1995 -- he was convicted in 1988 -- when his attorney requested any physical evidence be preserved for DNA testing, he was told that the Wayne County Clerk's Office had destroyed the rape kit in 1994. The suit goes on to say that in subsequent years when the Innocence Project teams and the N.C. Center on Actual Innocence inquired about the evidence, they were told that the rape kit had been destroyed and that no physical evidence remained.

However, in June 2007, an officer with the Goldsboro Police Department's evidence team told the Center that some evidence did exist, and in August 2007, after DNA testing, Dail was exonerated.

Dail's suit alleges that the defendants through "neglect, misconduct, and the adherence to unconstitutional policies, customs, and practices, obstructed justice by falsely representing that the evidence had been destroyed, and preventing Plaintiff Dail from having access to evidence that would have exonerated them."

The suit also alleges that the defendants failed to take all appropriate action to disclose the evidence that could have proven Dail's evidence, despite repeated requests for access to the evidence.

Additionally, the individuals are named because of their roles in the process, and because the chiefs "created, promulgated, and maintained" the policies that deprived Dail of constitutional rights.

In its response, the city, which includes the individually named officers, argues first that recent U.S. Supreme Court rulings hold that there is "no freestanding right under the due process clause to obtain postconviction access to evidence for DNA testing."

Second, the city argues that because there is no right to postconviction DNA testing, there is no liability by the city, which can only be found liable if it is has deprived a person of his or her constitutional rights. Additionally, the city argues that there is no state constitutional right for postconviction access to evidence.

Third, the city argues that because all the individuals named in the suit were acting in their official capacities, they cannot be sued as individuals, only in their official capacities.

Fourth, the city argues that while later found innocent, probable cause did exist and that Dail's arrest and conviction were not false -- that the eyewitness identification and the physical evidence that existed were "sufficient in 1987 to reasonably conclude that probable cause existed," and that the Constitution "does not require infallibility or hard and fast certainty from law enforcement officers." Basically, the city is arguing that from the grand jury indictment all the way through the sentencing and later appeals, everything was done in the proper, legal manner.

And fifth, the city is arguing that Dail's claims of negligence and obstruction of justice are barred by the three-year statute of limitations -- that too much time passed between the time Dail was notified in June 2007 of the existence of possible DNA evidence and his decision to file suit in August 2010.

Attorneys on both sides declined to comment on the pending litigation, although a follow-up response from Dail is expected to be filed shortly after Jan. 1.