Cops involved in Davontae Sanford lawsuit denied immunity

Detroit — Two former Detroit officers who are accused in a federal lawsuit of fabricating evidence that put 14-year-old Davontae Sanford in prison for nearly nine years will not be granted immunity.

The U.S. Sixth Circuit Court of Appeals ruled unanimously Thursday that former DPD deputy chief James Tolbert and former homicide lieutenant Michael Russell will be held liable if a jury rules in favor of Sanford in the lawsuit.

Attorneys for Sanford, now 27, filed the suit against Russell, Tolbert and the city of Detroit after Sanford was released from prison in June 2016. The lawsuit claims Russell and Tolbert fabricated evidence against Sanford.

In the five-page ruling, the federal appeals court slammed the two ex-cops.

"Russell and Tolbert argue that they are entitled to qualified immunity against Sanford’s

claim that they fabricated evidence against him," the ruling said. "In doing so, they brazenly seek to have us revisit the district court’s assessment of the relevant evidence, which in this interlocutory appeal we will not do."

City officials representing Tolbert and Russell did not return an email Friday seeking comment. The city's Law Department generally declines to discuss ongoing litigation.

William Goodman, one of Sanford's attorneys in the suit, said Friday he was pleased with the appellate court's ruling.

"The 6th Circuit did absolutely the right thing, and they properly admonished the city for bringing a frivolous appeal, wasting taxpayer money to go through a useless process" Goodman said. "The court once again underscored the injustice that Davontae has suffered throughout his life."

Sanford's case attracted national attention when, two weeks after he pleaded guilty to second-degree murder and was sentenced to 37 to 90 years in prison, hit man Vincent Smothers confessed to the same 2007 quadruple homicide for which Sanford had just been convicted. 

Sanford claims he was tricked by Tolbert and Russell into confessing to the killings, and coerced to plead guilty by Sanford's attorney Robert Slameka, who was disbarred in 2018 after multiple ethics violations.

After years of appeals, Sanford was freed from prison in June 2016, following a Michigan State Police report that alleged Tolbert had lied on the witness stand about a sketch of the crime scene, a drug house on Runyon Street on Detroit's east side.

Tolbert claimed during a July 3, 2010 appeal hearing that Sanford had drawn the diagram by himself. But during a September 2015 interview, Tolbert told state investigators he had drawn part of the sketch.

According to a transcript of the interview, Tolbert balled up the sketch and tried to throw it away, but state police detectives intercepted him and preserved the diagram.

Wayne County Prosecutor Kym Worthy said the decision to drop the charges against Sanford was made because the question of who drew the crime scene sketch tainted the case. State detectives submitted a warrant request seeking perjury charges against Tolbert, but Worthy later declined to prosecute him after the statute of limitations ran out.

State police also submitted warrants asking for murder charges against Smothers and the man he claimed was his partner, Ernest Davis, but Worthy never charged the two men.

Tolbert left Detroit in 2013 to become Flint's police chief. He was fired in 2016, and took a job as a deputy chief in Highland Park, although he resigned last year after multiple protests.

After Russell retired from DPD earlier this year, the Detroit Board of Police Commissioners at its March 5 meeting read into the record a resolution honoring him for his "lifelong contributions and commitment to excellence."

U.S. District Judge David Lawton, who is presiding over the lawsuit, had a different opinion of Russell, saying during a hearing last year that the entire case against Sanford was based on "lies that were told over and over" by Russell and Tolbert.

After the judge made those comments, Detroit police chief James Craig put Russell on restricted duty, confiscating his gun and badge. Russell, who spent 25 years on Detroit's police force, was working in the Real Time Crime Center at the time of his resignation.

In Thursday's ruling, the federal appeals court pointed out that the 14th Amendment bars officers from knowingly creating false evidence to obtain a conviction, adding that jurors in the lawsuit should be allowed to hear arguments that Sanford's constitutional rights were violated.

"Specifically, the evidence would allow a jury to find that Tolbert fabricated a misleading sketch, that Russell drafted a false confession, and that together they attributed both pieces of evidence to Sanford when they gave evidence for the case to the

prosecutor," the ruling said. "The officers therefore are not entitled to qualified immunity on this claim."

The city had also sought immunity for Tolbert and Russell on the claim that Sanford's confession had been coerced, violating the Fifth and 14th Amendments. The appellate court shot down that request, as well.

"Here, a jury could find that Russell and Tolbert questioned a 14-year-old boy in the middle of the night, for hours at a time, without a parent or attorney present; that they did so for two nights in a row; that Russell falsely told Sanford that officers had found blood on his shoes; and that Russell falsely promised that Sanford could go to school the next day if he hurried up and confessed," the ruling said.

"The law made clear enough that these tactics, under these circumstances, were likely

coercive," the ruling said.

Another element of the lawsuit from which the officers sought immunity was the claim of malicious prosecution; the appeals court ruled against granting the indemnification.

"A jury could find that Russell and Tolbert fabricated critical evidence, which they passed off to prosecutors as authentic, which in turn caused Sanford to be imprisoned for nine years," the ruling said.

"Russell and Tolbert 'cannot seriously contend that a reasonable police officer would not know' that these actions would violate Sanford's constitutional rights," said the ruling.

After Sanford was released from prison, he moved to Arizona, where he was charged in 2018 with aggravated assault after firing an AR-15 rifle near his Phoenix home. He pleaded guilty in Maricopa County Superior Court to reckless discharge of a firearm, and received probation.

Sanford still lives in Phoenix with his infant son, his attorney said Friday.

 ghunter@detroitnews.com

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Twitter: @GeorgeHunter_DN