Petitioner, Jeremiah Goodwin, was visiting a friend in Shepherdstown, West Virginia. Together they visited bars, restaurants and Super Bowl-themed events throughout the area. During this same timeframe, a Shepherdstown University student was sexually assaulted on campus. Petitioner was questioned and later arrested for the sexual assault. Petitioner alleges that Respondents intentionally falsified the victim’s description of the assailant and used an improper, suggestive photo array in an attempt to justify his arrest. Petitioner also alleges that the owner of a Shepherdstown restaurant read about Petitioner’s arrest in the newspaper and notified police that Petitioner was, in fact, at the restaurant when the victim was assaulted. Respondents falsely informed the owner that the time of the arrest was incorrectly reported in the newspaper and also failed to inform Petitioner or his attorney that an alibi witness had come forward.
The prosecuting attorney made several failed attempts to indict Petitioner, but was eventually successful. After a year, however, the state voluntarily dismissed the charge. Petitioner then sued Respondents for malicious prosecution and intentional infliction of emotion distress (i.e., outrage.) Respondents filed a motion to dismiss. The trial court granted Respondents’ motion, finding that the underlying charge was not terminated favorably to Petitioner because the dismissal was “without prejudice.” The trial court also found that the underlying charge was supported by probable cause. With regard to the outrage claim, the trial court found that a police officer had no duty to disclose information discovered in the course of an investigation--even exculpatory information.
Was the trial court right in dismissing Petitioner’s claims of malicious prosecution and outrage?
Even though the case had been placed on the Rule 20 docket, the Supreme Court did not, in fact, write any new syllabus points. Instead, the Court applied the traditional test for proving malicious prosecution. In its analysis, however, the Court did reach a few issues that could make it more difficult to prove malicious prosecution in the future.
The elements necessary for proving malicious prosecution in West Virginia were summarized almost 100 years ago in Radochio v. Katzen, 92 W.Va. 340 114 S.E.2d 746 (1922):
“(1) That prosecution was set on foot and conducted to its termination, resulting in plaintiff’s discharge; (2) That it was caused or procured by defendants; (3) That it was without probable cause; and (4) That it was malicious. If plaintiff fails to prove any of these, he cannot recover.”
Regarding the first element, the Court gave special attention to the fact that the dismissal of the criminal charge was “without prejudice.” Citing cases from New York and the Fourth Circuit, the Court found that the underlying criminal proceeding must be determinated in “such a manner that they cannot be revived.” Because the charges against Petitioner could--theoretically, at least--be reinstituted by the prosecuting attorney, they were not “terminated.”
The second element requires that the criminal charges be “procured” by the defendant. West Virginia case law says that procurement “requires more than just the submission of a case to a prosecutor; it requires that a defendant assert control over the pursuit of the prosecution.” Despite the allegations of misconduct involving the city and campus police, the Court found that the arrest warrant was issued before the police report and the interview of the potential alibi witness. Furthermore, even after being informed of the alibi witness, it was the prosecuting attorney who continued the prosecution--a fact that was specifically pled as part of Petitioner’s complaint.
Regarding the third element, i.e., probable cause, the Court noted that probable cause determinations had been made (1) by the magistrate when issuing the arrest warrant, (2) by the magistrate at the conclusion of the preliminary hearing, and (3) by the grand jury when issuing the indictment. Notably, the probable cause finding at the warrant stage occurred “prior to any alleged police misconduct.”
Nor did the Court find that the complaint met the malice requirement. Specifically, the Court held that it was unaware of any “requirement that the police must directly inform the defense of exculpatory or alibi evidence found during the course of a criminal investigation.” Furthermore, the Court noted that if Petitioner “had an alibi defense, he would certainly have been the best person to possess the information.” Accordingly, any information regarding Petitioner’s alibi defense that was not directly relayed to Petitioner was otherwise available to Petitioner. Therefore, Petitioner’s allegations “fail[ed]…to meet the level of malice required to sustain a malicious prosecution claim.”
In addition, the Court briefly addressed Petitioner’s claim of outrage. According to the Court’s analysis, even if the government concealed information regarding the alibi witness, the government did not prevent Petitioner from learning the identity of that witness through due diligence, especially in view of the fact that the witness was the owner of the restaurant where Petitioner alleged he was at the time the crime was committed.
Justice Workman dissented. In particular, Justice Workman was critical of the Court’s analysis of the first element. Where the dismissal of a criminal charge “does not clearly address the merits of the charge,” the underlying facts must be examined. Here, the Court’s rule will have unintended consequences. First, it “naively shields persons who file criminal charges which should be known to be baseless.” Second, prosecuting attorneys across West Virginia “will be encouraged to seek dismissals without prejudice to evade defending malicious prosecution claims.”
Regarding the element of procurement, Justice Workman noted that it was sufficient for a defendant to play “an active role in [a person’s] arrest and prosecution.” Here, the city and the campus police “set in motion a predictable change of events leading to [Petitioner’s] prosecution.”
The third and fourth elements are closely related. As a general rule, a finding of probable cause by a grand jury will negate any allegation that the charge lacked probable cause. There is, however, an exception “where probable cause can be demonstrated to be based on intentional, knowing, or reckless falsehood.” Furthermore, “a lack of probable cause for the prosecution generally raises an inference of malice.”
In light of all of these factors, the claims for malicious prosecution and outrage were sufficient to withstand a motion to dismiss.
Justice Workman’s concerns certainly seem valid. The rule adopted by this case will likely have the dire consequences she predicts. Number 1, it will shield police officers who engage in blatant forms of misconduct in the course of their investigations. Number 2, it will simply encourage prosecutors to insert “without prejudice” language into their dismissal orders, knowing that it will immunize all concerned from liability for any future claims of malicious prosecution. It is also troubling that the Court failed to recognize that probable cause findings tainted by fraud or falsehood are not binding in a malicious prosecution case. All in all, this case is a clear setback for those seeking recourse for abuses involving the filing of criminal charges.