42 USC § 1983; Disclosure obligations under Brady v Maryland; A forensic serologist’s failure to disclose his notes before trial; Whether the court had jurisdiction to review this appeal involving a “mixed” question of law & fact; Gregory v City of Louisville; Whether Brady’s applicability to scientists was “clearly established” for forensic scientists in 1995; Moldowan v City of Warren

The court held that it lacked jurisdiction to review defendant-forensic scientist’s (Thurman) argument “that his notes were neither exculpatory nor material under Brady[.]” It also concluded that “it was clearly established in 1990 that a scientist could violate Brady by failing to disclose material exculpatory evidence.” Thus, that rule sufficed “to rebut Thurman’s qualified-immunity defense under our caselaw.” Plaintiffs-Hardin and Clark were tried for murder. During their trial, Thurman testified “that a hair found at the crime scene was ‘similar’ to a sample of Hardin’s hair.” They were convicted and each spent over 20 years in prison before DNA testing proved that this hair was not Hardin’s. The convictions were vacated, and they sued. Thurman’s working notes were obtained in discovery and revealed that there were doubts about the hair’s identification. Plaintiffs alleged that he “had fabricated evidence” and committed a Brady violation by not disclosing the notes before trial. The district court granted him summary judgment based on qualified immunity on all but Hardin’s Brady claim. Thurman argued that this claim failed on the merits and that Brady caselaw in 1995 did not clearly establish that a forensic scientist had a duty to disclose observation notes. As to his first argument, the court considered its jurisdiction under the “collateral order doctrine.” It noted that here, there was a “‘mixed’ question of law and fact; Would the historical facts (when interpreted in Hardin’s favor) rise to the level required to meet the ‘favorability’ and ‘materiality’ elements of Hardin’s Brady claim?” The court noted that it held in Gregory that in the Brady context, mixed questions are “unreviewable at this stage.” Gregory foreclosed Thurman’s challenge. He asserted “that his observation notes were not exculpatory and that his failure to disclose [them] did not prejudice Hardin because they were not material. But the district court held that a reasonable jury could find for Hardin on both of these elements of his Brady claim. . . . Just as in Gregory, the elements ‘are beyond our reach at this juncture.”’ As for his second argument, the court has “held that pre-1990 cases clearly established that the police also have a ‘Brady-derived’ duty to disclose material exculpatory evidence to the prosecution.” Even though this caselaw involved claims against police officers and not forensic scientists, “‘every reasonable’ scientist would have recognized that this extension of Brady covered them too.” Once the court had made “the leap beyond prosecutors, we see no reasonable argument why this leap should apply only to police officers in the field and not those in the lab.” Affirmed in part and dismissed in part for lack of jurisdiction.