On 27 October 2004, investigators from the Will County, Illinois Sheriff's Office coerced a false confession from Kevin Fox to the sexual molestation and murder of his four-year-old daughter following a polygraph "test" administered by polygrapher Richard Williams. As a result, Fox spent nearly eight months in prison on a capital murder charge before being exonerated by DNA evidence. The following civil complaint should serve as a cautionary tale to anyone considering whether or not to agree to a polygraph "test" in a criminal investigation. Fox's suit recently withstood a motion to dismiss. The following text is from Google's cache of the website, www.kevinfoxisinnocent.com. The polygraph is addressed specifically at paras. 29-34. Quote:
SECOND AMENDED COMPLAINT
_____________________________________________________________________
NOW COMES Plaintiff, KEVIN FOX, by and through his attorneys, Kathleen T. Zellner & Associates, P.C., and complaining of Defendants, OFFICE OF THE SHERIFF OF WILL COUNTY, DETECTIVE EDWARD HAYES, DETECTIVE MICHAEL GUILFOYLE, DETECTIVE SCOTT SWEARENGEN, DETECTIVE JOHN RUETTIGER, DETECTIVE BRAD WACHTL, DETECTIVE DAVID DOBROWSKI and RICHARD WILLIAMS, states as follows:
Introduction
On October 27th, 2004, the Defendants wrapped up what can be best characterized as a botched investigation of the murder of 4-year-old Riley Fox. Having made critical mistakes in the early stages of the investigation resulting in the destruction of key evidence, Defendants, in a last desperate effort to close the case on the eve of an election, made their move on an easy target - the 27 year old father of Riley Fox. A young man with no knowledge of the criminal justice system in Illinois and its shameful history of false confessions and wrongful convictions, Kevin Fox was best known for being a great father to his children and a bit too trusting of authority figures. Seeing no need for an attorney because he had “nothing to hide”, Kevin walked into a locked room from which he may never return. After hearing hours of threats, lies about the evidence, and promises about a ”deal”, Kevin Fox fell victim to a lethal game of bait and switch.
Believing he had only two options, a 30 year to life sentence with the promise of daily sexual assaults and years of separation from his family or, the bait, a 3-5 year sentence for involuntary manslaughter and immediate release on bond, he chose the later, at the price of agreeing to a fabricated story.
The switch occurred on October 27th when Kevin Fox learned he had not only been tricked into a first degree murder charge but the lethal game ended in the coveted prize for the State - a chance to get a lethal injection.
Cause of Action
1. This action is brought pursuant to 42 U.S.C. Section 1983 to redress the deprivation under color of law of Plaintiff’s rights as secured by the United States Constitution.
2. Specifically, as a result of egregious misconduct conduct by law enforcement, Plaintiff, Kevin Fox, was wrongfully arrested for a heinous crime he did not commit.
3. DETECTIVE EDWARD HAYES, DETECTIVE MICHAEL GUILFOYLE,
DETECTIVE SCOTT SWEARENGEN, DETECTIVE JOHN RUETTIGER, DETECTIVE BRAD WACHTL, DETECTIVE DAVID DOBROWSKI and RICHARD WILLIAMS (“Defendants”) conspired to secure his arrest and imprisonment by means of coercion.
Jurisdiction and Venue
4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. Section 1331.
5. Venue is proper pursuant to 28 U.S.C. Section 1391 (b). All parties reside in the judicial district, and the events giving rise to the claims asserted herein occurred within the district.
The Parties
6. Plaintiff, Kevin Fox, was at all relevant times a citizen of the United States and a resident of Will County, Illinois.
7. Defendant, The Office of the Sheriff of Will County, is an Illinois municipal corporation, and is and or was the employer of each of the defendants.
8. All of the individual defendants are detectives employed by The Office of the Sheriff of Will County. Richard Williams was an agent of the Sheriff of Will County.
Factual Background
9. Prior to June 5, 2004, Plaintiff Kevin Fox resided with his wife, Melissa Fox, their son and their daughter, Riley Fox, in Wilmington, Illinois.
10. At no time were Kevin and Melissa Fox ever accused of abusing or mistreating their children. Both Kevin and Melissa Fox were regarded as loving and kind parents to their children.
11. At approximately 7:50 a.m. on June 6th, 2004, Kevin Fox was awakened by his son Tyler.
12. Shortly thereafter, Kevin Fox discovered that his daughter, Riley Fox, was missing. He also discovered that the front door was ajar. His wife, Melissa, was not present, having spent the night in Chicago for a breast cancer charitable event.
13. A massive search was undertaken for Riley Fox. At approximately 3:30 p.m. on June 6, 2004, the body of Riley Fox was found in Forked Creek, a stream that runs through the Forsythe Woods Preserve about four miles from the Fox home.
14. An investigation was undertaken by the Wilmington Police and the Will County Sheriff’s Department. Melissa and Kevin Fox fully cooperated. Kevin Fox provided his DNA and articles of clothing that he had worn on June 5th and June 6th. Both parents met with investigators and answered all of their questions.
15. From June 6th to October 26th, 2004, no arrests were made based upon any forensic or other evidence developed by investigators. The investigation was at a standstill without any viable leads, in large measure because the initial investigation was botched. The bridge at Forked Creek was not secured. The public was allowed to climb all over the bridge, destroying potentially vital evidence. The creek was drained, without proper mapping of the creek bed. The hooks used to search the creek bed distorted the crime scene. Instead of questioning everyone present in the crime scene, area authorities evacuated the area, allowing potential suspects to escape. The only real “suspect” in the case was Kevin Fox, who became the focus of the investigation because the detectives “had a feeling” he did it. It is noteworthy that not one viable piece of evidence was developed against Kevin Fox from June 6th to October 26th, when the defendants tricked him into agreeing with their fabricated story.
16. It is significant that the Defendants proceeded to arrest Kevin Fox on October 26th-27th, just 6 days before the election for the Will County State’s Attorney, without having all the forensic results of the investigation and without having investigated other significant leads in the case. There is not, and will not be, any DNA evidence linking Kevin Fox to any crime against his daughter Riley Fox. On January 28, 2005, State’s Attorney James Glasgow disclosed, in open court, that there was no DNA evidence in the case. Furthermore, S.A. Glasgow stated “We do have some analysis of some videotapes that’s being done by a laboratory, so we don’t know an exact date when that will be available ...”. Assistant State’s Attorney Phillip Mock stated “some items were sent to the FBI that they are sending back to us that they claim a report is done. We haven’t received it yet.” Clearly, Kevin Fox was arrested and charged on his uncorroborated statement given on October 26 - 27, 2004. The Will County State’s Attorney has no DNA evidence and had not received any other reports at the time of the alleged “confession” of Kevin Fox.
17. A strikingly similar case in La Porte, Indiana was never examined by the Defendants. La Porte is only 96 miles from Wilmington. In the La Porte case the victim, an 8-year-old-girl, was taken from her home after the intruder entered through a cut window screen. Her mouth was taped shut and her pajama pants and underwear were removed. The suspect dropped her after being startled by a dog barking. In the Riley Fox case, her underwear was removed and her mouth was taped shut. The intruder entered from the garage and laundry room doors, which had broken locks, and exited through the front door. Significantly, that same night, the neighbor directly across the street from the Fox home had a screen cut.
18. Defendant’s police dogs went immediately from sniffing Riley Fox’s clothes to a specific house in the neighborhood. The dogs entered the house. The neighbor lied to the police claiming that Riley Fox and her brother had been to his house several times. Riley Fox had never been allowed to visit this neighbor’s house. The investigator failed to confirm this fact with the Fox family.
19. Witnesses, who had been at the creek at the exact location the body was found, are certain the body was not there until shortly before it was found. These witnesses were never interviewed by the police, but their observations would make it impossible for Kevin Fox to have disposed of the body, since he was with authorities from approximately 8:30 a.m. to 3:30 p.m. on June 7, 2004.
20. The time of death of Riley Fox is much more likely to have occurred between 4-6 hours prior to her body being found than between 1:30 a.m. and 7:50 a.m., according to the pathological findings made pursuant to the autopsy.
21. There is no physical evidence linking Kevin Fox to the crime.
22. Other statements by the County Coroner that Riley Fox was conscious when thrown into the water are false and medically incorrect.
23. On October 26th, 2004, Defendant Swearengen requested that Melissa and Kevin Fox come to the sheriff’s office because he had something “important” to tell them.
24. Melissa and Kevin Fox arrived at 7:00 p.m. They were immediately separated and never saw each other alone for the next 14 2 hours. Their two brief encounters over these hours were in the presence of the Defendants.
25. Despite Kevin Fox’s repeated claims of innocence, a systematic effort was made by Defendants to intimidate, coerce, confuse, mislead and trick Kevin Fox into implicating himself in his daughter’s death.
26. Mr. Fox was kept in a locked room in a locked area for 14 2 hours. He attempted to leave several times but was ordered to sit down by the Defendant Wachtl and Defendant Hayes.
27. Mr. Fox asked several times to contact his father for the purposes of obtaining an attorney. Each time, he was told by the Defendants that he was 27 years old and that he did not need a lawyer or his father.
28. Mr. Fox was subjected to hours of confrontational and aggressive interrogation by the Defendants who tried to convince Kevin Fox that his situation was hopeless and that the evidence would inevitably lead to his arrest and conviction for first degree murder and a 30 year to life sentence unless he implicated himself in the accidental death of his daughter.
29. Mr. Fox was told that a polygraph test was “absolutely reliable” and “good evidence” in Illinois, that if he took the test and passed, he would be cleared of any involvement in his daughter’s death, otherwise, he would be charged with first degree murder. Kevin Fox was never told that polygraphs are not admissible in Illinois and have never met threshold requirements of reliability.
30. The Defendant, Richard Williams, told Kevin that he had given “thousands of polygraphs” and “never made a mistake.” A thorough review of Mr. Williams’ credentials as a polygraph examiner were not investigated prior to using him on this assignment.
31. During the polygraph exam, Defendant, Richard Williams, used polygraph equipment that is well-known to give incorrect results and is not even used by many police departments.
32. After the exam, Defendant, Richard Williams, yelled at Kevin Fox, “you did it. It’s alright to say you did it.” At best, the test results were inconclusive and highly questionable.
33. Defendant Hayes yelled at Melissa Fox, “Your crappity smacking husband killed your crappity smacking daughter and he doesn’t love you or her.” Melissa told him to stop talking that way about her daughter and her husband.
34. After the polygraph test, Defendant Hayes had begun to fill out, in Kevin Fox’s presence, an arrest sheet for first degree murder. Defendant Guilfoyle began hitting handcuffs on the table in front of Kevin Fox. Defendant Hayes told Kevin Fox you don’t have much time. If I finish the sheet, you are being charged with first degree murder with 30 years to life. He told Kevin Fox to empty his pockets, trying to make him believe he was about to be arrested for first degree murder.
35. Defendant Hayes told Kevin Fox that Hayes “knew people” at the jail and that he would “make sure” that Fox was “crappity smacked” everyday in the jail unless he told them what they wanted to hear.
36. The Defendants told Kevin Fox his family had abandoned him, his wife was going to divorce him and that another man would be raising his son.
37. Specifically, Defendant Ruettiger, told Kevin Fox that after showing his father the evidence, his father stormed out of the jail saying, “Do what you want with him.” This was a lie. Mr. Curt Fox flatly denies ever making this statement. He has never changed his belief in Kevin Fox’s innocence.
38. Defendants Ruettiger and Dobrowski made impermissible physical contact with Kevin Fox. Defendant Ruettiger straddled Fox’s legs, pressing his testicles into Fox;’s knee. He grabbed the back of Fox’s shirt and pulled his face to him, saying, “your family doesn’t love you, so just say you did it.” Defendant Dobrowski, at various times, rubbed Kevin Fox’s shoulders, arms and leg. These actions made Kevin Fox very apprehensive.
39. Kevin Fox was told by Defendant Ruettiger that his wife, Melissa was shown “the evidence” and she left the jail saying, “I had a feeling he did it.” Melissa denies ever saying this. She has never abandoned her belief in Kevin Fox’s innocence. Kevin Fox was told his 7-year-old son Tyler thought he was guilty - another lie.
40. Defendant Swearengen told Kevin Fox that his hands matched the lumps on his daughter’s head. This was flatly untrue since no valid scientific comparison is possible between lumps and hands. Furthermore, there were no lumps on Riley Fox’s head according to the autopsy report.
41. In a further effort to manipulate and coerce Kevin Fox into making a statement, Defendant Guilfoyle stated to Kevin, “Riley is in the room with you right now. She is in pain and needs closure.” Kevin Fox was also in pain at that point and needed closure of what he perceived to be a hopeless situation.
42. Defendant Swearengen burst into the room and said that he had talked to the State’s Attorney (Jeff Tomazck) and the State’s Attorney said, “Hurry back. I can help this kid if he acts now. I can make a deal for him.” Defendant Swearengen says, “Kevin, I am excited about this. It’s now or never. Say it was an accident. Get your help from the State’s Attorney so you can go home to your family. If you pass it up, you will spend your life in prison. If you say it was an accident, it’s involuntary manslaughter with a 3-5 year sentence. You’ll serve half. Go home now on bond.”
43. Kevin Fox had been misled by the defendants into believing his situation was hopeless. Because he had been lied to about the existence of the evidence against him, he thought that there was no way out of being arrested. On the one hand, he could continue resisting and he would be charged with first-degree murder and face the possibility of life in prison. He had been guaranteed that Defendant Hayes would make sure that choice included being raped everyday. On the other hand, if he said it was an accident, he would get a few years for involuntary manslaughter, be bonded out immediately, and return to his family. There were no other choices.
44. Kevin Fox was fed an entire story by the Defendants. He was told to say that an accident occurred at home, which killed Riley. He was told to say he panicked and threw Riley’s body in the creek. The Defendants explained since she was dead when he put her in the creek, he could only be charged with involuntary manslaughter.
45. Once the Defendants had Kevin Fox’s statement, they would claim that Riley Fox was alive when she went in the water, so they could charge Kevin Fox with first degree murder.
46. Prior to the videotaped statement, Defendant Hayes, showed Kevin a picture of Riley with duct tape on her mouth. Hayes told Kevin Fox to say he taped her to make it look like an abduction. Defendant Hayes also told Kevin Fox that “something had been put in Riley’s vagina” so Kevin should say he slipped his finger in her to make it look like an abduction.
47. Kevin Fox’s last recollection of the Defendants on October 27, 2004 is hearing them laughing and congratulating themselves in the hallway after they completed their videotape.
48. The Defendants grossly and intentionally misled Kevin Fox as to the amount and strength of the evidence against him. Defendants falsely persuaded Kevin Fox that his chances of avoiding conviction were hopeless. Defendants used extreme physical and psychological manipulation to intimidate Kevin Fox into agreeing with the Defendant’s fabricated story about the death of Riley Fox. Kevin Fox did not voluntarily give any statements implicating him in his daughter’s death.
COUNT I
(Due Process B 42 U.S.C., Section 1983)
1-48. Plaintiff realleges, restates and incorporates by reference, paragraphs 1-48 of this Complaint at Law as and for paragraph 1 of this Count I.
49. Defendants, while acting under color of law and within the scope of their employment as detectives and/or as a polygraph examiner, deprived Plaintiff of his constitutional right to due process. Each of the Defendants deliberately fabricated false statements, thereby causing the false arrest of Plaintiff, causing him to be falsely imprisoned and causing him to be prosecuted.
50. Defendants provided false allegations that were the basis of the criminal complaint and withheld exculpatory evidence.
51. Absent this misconduct, the arrest and prosecution of Plaintiff could not and would not have been pursued.
52. As a result of the violation of his constitutional right to due process Plaintiff suffered and continues to suffer injuries.
53. The misconduct that occurred in this Count was objectively unreasonable and was undertaken intentionally with willful indifference to Plaintiff’s constitutional rights.
COUNT II
(False Arrest B 42 U.S.C., Section 1983)
1-53. Plaintiff realleges, restates and incorporates by reference, Count I of this Complaint at Law as and for paragraphs 1 -53 of this Count II.
54. Plaintiff was improperly seized and arrested by Defendants without legitimate probable cause. Plaintiff was denied liberty without justification in violation of the Constitution.
55. As a result of the above-described wrongful infringement of Plaintiff’s rights, Plaintiff has suffered damages, including but not limited to substantial mental distress and anguish.
56. The misconduct described in this Count was undertaken with malice, willfulness,and reckless indifference to the rights of others.
COUNT III
(Intentional Infliction of Emotional Distress B State Law Claim)
1-56. Plaintiff realleges, restates and incorporates by reference, Counts I and II of this Complaint at Law as and for paragraphs 1 -56 of this Count III.
57. The acts and conduct of Defendants set forth above were extreme and outrageous. The Defendants intended to cause, or were in reckless disregard of the probability that their conduct would cause, severe emotional distress to the Plaintiff.
58. Said actions and conduct did directly and proximately cause severe emotional distress to the Plaintiff.
59. The misconduct described in this Count was undertaken with malice, willfulness, and reckless indifference to the rights of others.
60. As a proximate result of Defendants’ wrongful acts, Plaintiff suffered damages, including severe emotional distress and anguish.
COUNT IV
(False Imprisonment B State Law Claim)
1-60. Plaintiff realleges, restates and incorporates by reference, Counts I - III of this Complaint at Law as and for paragraphs 1 - 60 of this Count IV.
61. Defendants individually and/or jointly and in conspiracy, falsely imprisoned the Plaintiff without probable cause.
62. Defendants are liable for this false imprisonment because it was proximately caused by their unlawful actions as set forth above.
63. The false imprisonment of the Plaintiff by the Defendants continues from October 26, 2004 to present.
64. As a result of the wrongful acts of the Defendants in falsely imprisoning the Plaintiff, he has suffered the injuries and damages as set forth above.
COUNT V
(Respondeat Superior B State Law Claim)
1-64. Plaintiff realleges, restates and incorporates by reference, Counts I - IV of this Complaint at Law as and for paragraphs 1 - 64 of this Count V.
65. In committing the acts above, each of the Defendants were members of, and/or agents of, the Office of the Sheriff of Will County acting at all relevant times within the scope of their employment.
66. Defendant, The Office of the Sheriff of Will County is liable as principle for all torts committed by its agents.
COUNT VI
(Conspiracy)
1-66. Plaintiff realleges, restates and incorporates by reference, Counts I - VI of this Complaint at Law as and for paragraphs 1 - 66 of this Count VI.
67. Defendants together reached an understanding, engaged in a course of conduct, and otherwise jointly acted and/or conspired among and between themselves to falsely arrest and imprison and to intentionally inflict severe emotional distress on Plaintiff.
68. In furtherance of this conspiracy or conspiracies, Defendants named above, committed the overt acts set forth above including, but not limited to, the wrongful imprisonment and prosecution of the Plaintiffs, of knowingly concealing exculpatory evidence about Plaintiff, including but not limited to, the making of knowing misstatements and the presentation of this knowingly false and incomplete evidence to prosecutors and the filing of false and incomplete statements and reports.
69. Said conspiracy or conspiracies and overt acts were continued from October 26, 2004 to present.
70. Defendants’ acts, as set forth above, in action jointly and/or conspiring together to falsely imprison, maliciously prosecute and intentionally inflict emotional distress on Plaintiff constitutes the tort of conspiracy.
71. This conspiracy proximately caused the injuries to the Plaintiff as set forth above.
WHEREFORE, Plaintiff KEVIN FOX, respectfully requests that this Court enter judgment in his favor and against Defendants, awarding compensatory damages, costs, and attorneys’ fees, along with punitive damages against each of the Defendants in their individual capacities, as well as any other relief this Court deems just and appropriate.
JURY DEMAND
Plaintiff, Kevin Fox, hereby demands a trial by jury pursuant to Federal Rule of Civil Procedure 38(b) on all issues so triable.
Respectfully Submitted:
___________________________
Kathleen T. Zellner
Kathleen T. Zellner & Associates, P.C.
1717 North Naper Blvd.
Suite 203
Naperville, IL 60563
(630) 955-1212
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The Polygraph Interrogation of Kevin Fox (Read 28791 times)
