Date: 03-30-2006

Case Style: Arvin McGee v. City of Tulsa

Case Number: 4:03-cv-00704-CVE-PJC

Judge: Claire V. Eagan

Court: United States District Court for the Northern District of Oklahoma, Tulsa County

Plaintiff's Attorney:

Tom Seymour, Scott Graham and Bob Burton of the Seymour Law Firm, Tulsa, Oklahoma

Defendant's Attorney:

Deputy City Attorney Larry Simmons and Assistant City Attorney Mike Romig

Description:

On October 29, 1987 Cyndi Doe was kidnapped and raped in Tulsa, Oklahoma. She reported the kidnapping and rape to the Tulsa police department immediately after it occurred. On March 7, 1998, Plaintiff, Arvin McGee, was arrested by the Tulsa police department for the rape and kidnapping Cyndi Doe. On June 22, 1989 Arvin McGee was convicted of the crimes alleged, and received a sentence of 125 years. Arvin McGee spent just shy of 14 years in jail as the result of his conviction of the rape and kidnapping charges. On February 26, 2002, Arvin McGee was exonerated of the crimes, but Judge Linda Morrissey citing DNA testing. Arvin McGee contended that he was unfairly tried and convicted of the kidnapping, rape and related charges in violation of Due Process of Law as guaranteed by the Constitution of the United States. He further contended that a proximate cause of his wrongful convictions and his wrongful imprisonment was the failure of the City of Tulsa's police department to adopt policies on police conduct in rape investigations. The City of Tulsa denies that its failure to adopt policies on police conduct in rape investigations was a proximate cause of the wrongful convictions and wrongful imprisonment of Plaintiff.

Plaintiff's Contentions

On October 29, 1987, Cyndi Doe was employed and working in a laundry located at 4914 East 21st Street, in Tulsa, Oklahoma. Cyndi Doe was in the process of sweeping the floor of the laundry when she was grabbed from behind and shoved to the floor. Cyndi Doe was then dragged to the bathroom of the laundry, bound at her ankles and wrists and gagged. Cyndi Doe was then carried to her own automobile and driven to a remote wooded area where she was raped and sodomized in the back of her car. She was then locked in the truck of the car. Ms. Doe managed to escape from the locked trunk and drove her car back to the laundry. There were police officers investigating an apparent robbery at the laundry when she drove-up to the laundry honking her horn. She parked her car, jumped out of the car, and screamed hysterically that she had been raped.

Arvin McGee was wrongfully convicted of the kidnapping and rape of Cyndi Doe, on June 22, 1989, and sentenced to 125 years for the kidnapping, rape, and related charges. McGee was wrongfully seized, unfairly tried, denied Due Process of Law as guaranteed by the Constitution of the United States, wrongfully convicted of the kidnapping, rape and related charges, wrongfully imprisoned for almost 14 years. A proximate cause of the wrongful convictions was the failure of the City of Tulsa's police department to adopt policies on police conduct in rape investigations.

McGee always maintained that he was an innocent man and did not commit any of the crimes. In accordance with the DNA Forensic Testing Program, a slide containing spermatozoa (Cervical Mucosa Slide) from the sexual assault rape kit, taken on the night of the rape at St. Francis Hospital was sent to the DNA Reference Laboratory, Inc. for nuclear DNA testing. The results of the DNA testing revealed that McGee was not the contributor of the spermatozoa. Therefore, it was definitively proved that McGee did not commit the offenses for which he had been convicted and sentenced.

On February 26, 2002, the Honorable Linda G. Morrissey, "ordered, adjudged, and decreed that [McGee's] convictions and sentences ,,, are vacated, set aside and held for naught." An action asserted under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States, pursuant to the Civil Rights Act, Title 42 of the United States Code, Section 1983, that calls into question the lawfulness of a criminal conviction or confinement does not accrue until the conviction or sentence has been reversed on direct appeal, expunged by executive order, or declared invalid by a state tribunal authorized to make such determination.

Defendant's Contentions

Cyndi Doe was able to view her attacker off and on in both lighted and unlighted conditions for nearly two hours on October 29, 1987. She gave initial descriptions of her attacker to police on December 8, 1987, directed an artist for the Oklahoma State Bureau of Investigation as he prepared a sketch of the suspect. The sketch was posted on bulletin boards throughout the Tulsa Police Department

On December 26, 1987, a Tulsa police officer contacted the detective assigned to the case, Randy Lawmaster, and advised him the sketch looked like Arvin McGee. On February 16, 1988, Lawmaster presented a photo line-up containing five photographs including the Plaintiff to the victim. At that time, the victim identified McGee as her attacker. On March 2, 1998, Lawmaster signed an affidavit requesting a warrant for the Plaintiff's arrest describing the crime and the fact the victim had identified the Plaintiff as the perpetrator from a photo-lineup.

On March 4, 1988, a state district judge entered an order finding probable cause and directing that a warrant be issued for the Plaintiff's arrest. On March 5, 1988, the state's district attorney filed an information charging the Plaintiff was rape and other crimes.

On March 25, 1988, Plaintiff's lawyer, Mark Graziano, filed a motion to suppress seeking to prohibit witnesses from identifying Plaintiff as the perpetrator of the offenses charged because of allegedly improper pretrial identification procedures. The motion to suppress was under advisement during Plaintiff's preliminary hearing that was held on March 31, 1988. At the hearing, the victim unequivocally identified the Plaintiff as her attacker. Having hear the evidence, a special judge of the state district court overruled Plaintiff's motion and found there as probable cause to bind Plaintiff over for trial on the rape and other charges.

The cases against Plaintiff was presented to three separate juries. The Plaintiff was found guilty by the first jury. A new trial was ordered and the second jury hung. The third jury again found Plaintiff guilty beyond a reasonable doubt. On each occasion, the rape victim appeared and testified under oath. In all, she was cross-examined by Plaintiff's lawyers on four separate occasions and unequivocally identified the Plaintiff as her attacker each time. Plaintiff's conviction before Judge Clifford Harper was affirmed by the Oklahoma Court of Criminal Appeals.

The City of Tulsa denied wrongdoing on the part of its police officers.

Outcome: Plaintiff's verdict for $14.5 million.

Plaintiff's Experts:

Michael Lyman, Ph.D.

Defendant's Experts: Unknown

Comments: Editor's Note: There is little question that numerous African-American males have been convicted and sentenced to long prison terms for sexual crimes that they did not commit on weak evidence by Tulsa juries.