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					      Case 2:10-cv-02533-CM -DJW Document 1                Filed 10/01/10 Page 1 of 16




                 IN THE UNITED STATES DISTRICT COURT FOR THE
                             DISTRICT OF KANSAS


RODNEY TURNER,                                   )
Kansas City, Kansas,                             )
                                                 )
                              Plaintiff,         )
                                                 )
v.                                               )   Case No. 10-2533-CM-DJW
                                                 )
WILLIAM “BILL” DELANEY,                          )   JURY TRIAL DEMANDED
Topeka, Kansas, in his                           )
individual and official capacities,              )
                                                 )
and                                              )
                                                 )
JOHN DOE I and II, in their individual and       )
official capacities,                             )
                                                 )
                              Defendants.        )


                                           COMPLAINT

       COMES NOW Plaintiff, Rodney Turner, and for his cause of action against

Defendants William “Bill” Delaney and John Doe I and II, states and alleges as follows:

                                  PRELIM INARY STATEM ENT

       1. This case alleges that Defendant Delaney, acting under color of law, deprived

Plaintiff Turner of his federal constitutional rights under the Fourth, Fifth, and Fourteenth

Amendments to the United States Constitution when Delaney, with reckless disregard for and

deliberate indifference to Plaintiff’s rights, testified to false and misleading information about

Turner’s alleged involvement in the unsolved murder of Charles W. “Chuck” Thompson,

testimony that influenced the decision of a grand jury and caused it to indict him for alleged

theft and presentation of false claims. The indictment was later dismissed on the basis that
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Delaney poisoned the grand jury by his frequent references to Delaney’s investigation of

Turner for the murder of Thompson. No other significant testimony would have supported

the indictment. Defendant maliciously abused his position to induce the indictment and

prosecution of Turner in violation of the U.S. Constitution.

                                           PARTIES

                                           Plaintiff

       2. Plaintiff Rodney Turner is a resident of Kansas City, Wyandotte County, Kansas.

He is a semi-retired Wyandotte County attorney who has been involved in Wyandotte County

politics and has at times performed legal services for the Board of Public Utilities (“BPU”)

for over three decades. At the time of the Thompson murder, he was the County Counselor

of Wyandotte County.

                                          Defendants

       3. Defendant William (“Bill”) Delaney is an investigator for the Kansas Attorney

General’s Office (“KAGO”) who has also been employed by the Kansas Bureau of

Investigation (“KBI”).

       4. Delaney has claimed that he was a case agent working on the investigation of the

murder of Chuck Thompson from its inception, but, on information and belief, he in fact was

not assigned to the case until after the Metro Squad disbanded and the case was sent to the

KBI. He later continued investigating the Thompson murder while working for the KAGO.

       5. At all times pertinent to this complaint, Delaney was acting under color of state

law. Delaney is sued in his individual and official capacities.

       6. The John Doe Defendants are officials or employees with the KAGO whose


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responsibilities include training and supervision of Defendant Delaney.

       7. At all times pertinent to this complaint, the Doe Defendants were acting under

color of state law and they are sued in their individual and official capacities.

                                  JURISDICTION AND VENUE

       8. This Court has jurisdiction of Plaintiff’s federal constitutional claims pursuant to

42 U.S.C. § 1983, 28 U.S.C. § 1331, and 28 U.S.C. § 1343.

       9. Venue is proper in this Court because all of the acts and omissions giving rise to

Plaintiff’s cause of action occurred in Kansas City, Wyandotte County, Kansas. As alleged,

supra, Plaintiff is a resident of Kansas City, Kansas, and the grand jury testimony given by

Defendant was given in Kansas City, Wyandotte County, Kansas, all within the federal

District of Kansas.

                                   G ENERAL ALLEGATIONS

       10. On Monday, December 21, 1987, at approximately 8:15 a.m., Charles (“Chuck”)

W. Thompson, a Kansas City, Wyandotte County, Kansas, attorney, was found dead on the

sidewalk in front of Jalisco’s Restaurant at 5000 State Avenue, in Kansas City, Kansas. He

had been shot numerous times in the upper torso. At the time of the murder, Thompson was

active in politics and was the Democratic Chairman of the Wyandotte County Central

Committee.

       11. The initial investigation into the murder was handled by the Kansas City Metro

Squad and was later turned over to the Kansas Bureau of Investigation (“KBI”). The murder

has never been solved.

       12. One of the individuals investigating the Thompson murder case was Defendant


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Delaney, a non-lawyer investigator who, on information and belief, was assigned to the case

once it was assigned to the KBI. More recently, as an investigator for the Kansas Attorney

General’s Office (“KAGO) Delaney has continued working on the Thompson investigation.

       13. A few years after the Thompson murder, Delaney began publicly investigating

Turner for the murder in ways that came to Turner’s attention, but because Turner was not

involved in the Thompson murder, nothing ever came of it.

       14. On information and belief, between the end of his employment by the KBI and

the commencement of his employment by the Kansas Attorney General (“KAG”), Delaney

allegedly told others that he was going to write a book that solved the Thompson murder.

       15. While working for the KAGO, Delaney was allowed to continue investigation of

the Thompson murder.

       16. In the course of his interviews and re-interviews of people, Delaney persistently

told people that Plaintiff Turner and three other men, Pat Scherzer, Tom Lynch, and Marc

Conklin all had something to do with or knew something about the murder.

       17. All four men consistently denied having any knowledge from the outset.

       18. Years later, circa early 2008, however, a grand jury proceeding concerning the

Board of Public Utilities (“BPU”) was commenced following the submission of a citizen

Petition.

       19. The Petition sought investigation into nine charges of what can be characterized

as alleged corruption and falsification of documents and records.

       20. Defendant Delaney testified before the grand jury as the complaining witness as

to Turner, testifying on multiple occasions, including the first day on which testimony was


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heard.

         21. On the first day of testimony, March 5, 2008, Delaney began discussing the

unrelated, unsolved murder of Thompson indicating that he was working on a twenty year

old murder case; Delaney told the grand jury he was interested in BPU people because of his

interest in another case but that he probably should not discuss it.

         22. Despite knowing that the issues before the grand jury were the issues related to

the BPU, on the first day of testimony and throughout the pendency of the grand jury,

Delaney – despite appearing to recognize that he should not discuss the unsolved murder to

the grand jury – nevertheless repeatedly discussed the Thompson murder in the grand jury’s

presence, falsely implicating Turner and the others.

         23. Delaney returned to testify before the grand jury again on April 2, 2008.

         24. In his testimony on April 2, 2008, Delaney told the grand jury that he had become

interested in the BPU because some of the people he had heard were involved in the BPU

case were people that he thought were involved in the Thompson murder and he specifically

named Pat Scherzer, a Wyandotte County Commissioner at the time of the Thompson

murder, and Rod Turner.

         25. Delaney told the grand jury that he had an interest in Turner’s role in the BPU

matters because Turner supposedly had information on the murder case. Delaney told the

grand jury that the same names kept coming up as having behind the scenes involvement in

both the BPU case and the Thompson murder.

         26. In response to a grand juror’s inquiry about whether Delaney would want to

question him on something else besides the BPU matter, Delaney told the grand jury that he


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wanted to ask Turner about the Thompson murder.

       27. Delaney admitted that his primary interest was in solving the Thompson murder

and that issues concerning the BPU were secondary concerns to him.

       28. Delaney stated that when he interviewed individuals on the BPU issues, and

Turner was mentioned, he would ask them if they knew anything about the Thompson

murder.

       29. On April 16, 2008, Delaney testified again before the grand jury about the

Thompson murder.

       30. In response to a grand juror’s question about whether there was a relationship

between the Thompson murder and the BPU issues, Delaney stated that the same names that

came up in the murder case were coming up in the BPU investigation.

       31. Delaney further implied that if Turner were indicted in the BPU case, it might

cause him to cooperate on the Thompson murder.

       32. Delaney went so far as to tell the jury that they ought to have Turner testify, but

that he did not think that Turner would talk, and that he thought Turner would not be

forthcoming with the grand jury; Delaney referred to Turner not having talked to authorities

about the Thompson murder.

       33. Delaney testified falsely to the grand jury (and lied to others repeatedly over the

years) by stating that Turner would never talk to him, would never cooperate, and would

never say anything about the Thompson murder; in fact, Delaney had called Turner several

times over the years; Turner had always taken his calls, but told Delaney that he was not

involved in the Thompson murder, knows nothing about it, and has nothing to tell about it.


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       34. On April 30, 2008, Delaney testified before the grand jury again.

       35. During his testimony of April 30, 2008, in response to having been asked if

Turner had any connection with Doug Spangler, Delaney testified falsely that Turner had

been under surveillance for the Thompson murder.

       36. Delaney testified that Spangler had been seen with Rod Turner and Pat Scherzer

at a restaurant near the Kansas Speedway.

       37. On June 12, 2008, Turner was subpoenaed to appear before the grand jury and

thereafter, on June 19, 2008, his counsel advised the State that Turner would invoke his Fifth

Amendment right not to answer questions and reminded the State that the law prevented

comment on Turner’s invocation of his Fifth Amendment right and that no adverse inference

could be drawn from it. His counsel asked that Turner not be required to appear.

       38. Turner’s request not to appear notwithstanding, the State required his appearance

on June 25, 2008.

       39. During Turner’s appearance, the grand jury was instructed about a person’s

invocation of the Fifth Amendment right and Turner’s counsel again advised the state that

Turner would invoke his Fifth Amendment right.

       40. Turner’s counsel also objected under American Bar Association rules regarding

prosecutorial officials calling before the grand jury witnesses who are subject to investigation

and under Rule 3.8 (e) of the State of Kansas Rules of Professional Conduct concerning the

Special Responsibilities of the Prosecutor that a prosecutor shall not subpoena a lawyer in a

grand jury proceeding to present evidence about a client.

       41. The State posed at least 140 questions to which Turner asserted the Fifth


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Amendment.

       42. After Turner had been called to testify and exercised his Fifth Amendment right,

on July 30, 2008, Delaney returned for more testimony before the grand jury during which he

commented on Turner’s invocation of his Fifth Amendment right and, in particular, asserted

that Turner should show proof of the work he was doing for the BPU.

       43. On July 30, 2008, Delaney also testified about being asked if the KBI was using

the BPU case to solve the Thompson murder.

       44. Delaney again testified before the grand jury on August 13, 2008, and he again

testified that he was still trying to solve the Thompson murder and spoke about the names of

individuals involved in that murder coming up in the BPU investigation as well.

       45. Delaney told the grand jury that his questioning of BPU case witnesses about the

Thompson murder had provoked at least one member of the BPU to suggest that a complaint

to Delaney’s supervisor was in order.

       46. On August 27, 2008, the grand jury returned a sealed indictment charging

Plaintiff with two counts of theft in violation of K.S.A. § 21-3701 and fifty-five counts of

presenting false claims in violation of K.S.A. § 21-3904.

       47. Delaney’s false testimony became one of the inseparable or determinative bases

for the grand jury returning the sealed indictment charging Plaintiff with two counts of theft

and fifty-five counts of presenting false claims.

       48. Subsequently, on October 3, 2008, the indictment was unsealed and Turner was

arraigned.

       49. On March 6, 2009, Turner filed a Motion to Dismiss the Indictment for Grand


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Jury Abuse and Violation of Rights and Incorporated Memorandum in Support (“Motion to

Dismiss”).

       50. The Motion to Dismiss argued that Delaney’s grand jury testimony injected into

the grand jury process improper and prejudicial comments about the unrelated murder

investigation and Turner’s exercise of his constitutional right against self incrimination,

prejudicing Turner.

       51. On August 28, 2009, the District Court, Hon. Jack Lively presiding, heard

evidence and argument on the Motion to Dismiss, including testimony by Delaney.

       52. Delaney testified that the Thompson murder would be his interest for the rest of

his career.

       53. Delaney admitted that his interest in Turner came from his belief that Turner may

have information that could have been helpful to him in the murder investigation but that

there had been no actual allegation that Turner had committed the murder.

       54. Delaney also admitted that the grand jury had not been exposed to information

about the Thompson murder until he testified about it.

       55. Other witnesses at the hearing testified that Delaney had told them that solving

the Thompson murder was “going to be [his] swan song” and that he was or would be writing

a book about it.

       56. At the hearing on the Motion to Dismiss, the State indicated that Delaney most

likely would not be a witness in the prosecution of Turner on the charges in the Indictment

and that Delaney’s purpose in giving testimony before the grand jury was to provide

background and present documents.


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       57. The District Court sustained the Motion to Dismiss and made specific, detailed

findings of fact including that the State and its investigating officer undermined the grand

jury process and deprived Turner of due process and his Fifth Amendment right.

       58. In addition, the District Court found:

              a. That the grand jury was repeatedly subjected to unsupported statements

              concerning the Thompson murder over twenty years before;

              b. That the murder was irrelevant to the alleged BPU violation that the grand

              jury had been charged with investigating, but that information and speculation

              about the murder were thrust into the hands of the grand jury;

              c. That Delaney attempted to link Turner to the murder or at least give the

              illusion that he was connected to it, which was highly improper, tainted the

              grand jury, and violated Turner’s due process rights;

              d. That when Turner was caused to appear before the grand jury even though

              it knew he would exercise his Fifth Amendment right and would not waive his

              attorney-client privilege arising out of his relationship with the BPU, Delaney

              infringed on Turner’s constitutional rights by commenting that Turner should

              come forward with information about the Thompson murder and about his

              dealings with the BPU.

              e. That the grand jury proceeding was not conducted fairly and that Delaney

              presented information to the grand jury in a manner that caused the grand jury

              to become prejudiced against Turner.

       59. The District Court concluded that Turner’s rights were prejudiced by the grand


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jury abuses and the violation of his rights.

       60. In granting Turner’s motion, the District Court would not consider whether the

dismissal of the indictment was with or without prejudice and deferred to the court of appeals

to determine “if there’s any orders that are final.”

       61. The Journal Entry was entered on April 29, 2009, and the State filed its Notice of

Appeal on May 2, 2009.

       62. The State’s appeal is pending despite the State’s admission of the errors that

underpinned Turner’s successful Motion to Dismiss.

       63. Turner has asked that the appellate court affirm the granting of his Motion to

Dismiss and that the Indictment be deemed dismissed with prejudice.

                                   COUNT I
   DEPRIVATION OF FOURTH AM ENDM ENT RIGHT TO BE FREE FROM UNREASONABLE
SEIZURE AND FIFTH AM ENDM ENT RIGHTS TO DUE PROCESS AND FREE EXERCISE OF THE
  PRIVILEGE AGAINST SELF -INCRIM INATION AS SECURED AGAINST THE STATE BY THE
                           FOURTEENTH AM ENDM ENT
                                42 U.S.C. § 1983

       64. Plaintiff incorporates by reference paragraphs 1-62 as if fully set forth herein.

       65. The Fourth Amendment right to be free from unreasonable seizure and the Fifth

and Fourteenth Amendment right not to be deprived of liberty without due process of law

extends to grand jury proceedings.

       66. Delaney’s testimony as a complaining witness repeatedly testifying falsely that

Turner was involved in the Thompson murder – which was irrelevant to the BPU

investigation – and Delaney’s suggestion that the grand jury indict Turner as leverage in the

Thompson murder investigation poisoned the grand jury and, thus, denied Turner of due

process and fundamental fairness.

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       67. Delaney’s commentary to the grand jury about Turner’s invocation of the

privilege against self-incrimination after Turner was forced to appear before the grand jury

and invoke the privilege over 100 times deprived Turner of the Fifth Amendment right not to

incriminate oneself.

       68. Delaney’s false testimony linking Turner to the Thompson murder and his failure

to testify to exculpatory evidence exonerating Turner of any connection to the Thompson

murder constitutes active participation in continuing criminal proceedings against Turner.

       69. As alleged, supra, Delaney’s false and misleading testimony became an

inseparable or determinative basis for the grand jury’s indictment.

       70. In the absence of Delaney’s testimony, there was insufficient evidence from

which the grand jury could have concluded that an indictment should issue.

       71. Delaney’s testimony before the grand jury was reckless conduct, engaged in with

deliberate indifference to the rights of Turner.

       72. The criminal proceeding against Turner has been terminated in favor of Turner in

that the indictment has been dismissed.

       73. Delaney’s falsification of inculpatory evidence and/or suppression of exculpatory

evidence was necessary to the grand jury’s decision to indict and to any finding of probable

cause; i.e., without the falsified testimony or with the withheld exculpatory evidence, there

would have been no probable cause for Turner’s continued prosecution.

       74. Delaney’s false testimony and his commentary on Turner’s exercise of the

privilege against self-incrimination were malicious.

       75. Delaney’s conduct as a complaining witness has caused Plaintiff actual damages


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including, but not limited to:

       a. attorney fees and other expenses of defense in the approximate amount of

       $300,000.00 to date;

       b. inconvenience, insult, embarrassment, humiliation, anxiety, mental distress, and

       emotional pain and suffering;

       c. severe financial difficulties; and,

       d. lost billings as an attorney for BPU and loss of all other clients for a total lost legal

       earnings in excess of $400,000 to date.

       76. Defendant’s actions were willful, wanton, reckless, and malicious, and further

show a complete and deliberate indifference to, and conscious disregard for the rights of

Plaintiff. Therefore, Plaintiff is entitled to an award of punitive or exemplary damages in an

amount sufficient to punish Defendant or to deter Defendant and other similarly situated from

like conduct in the future.

       77. Plaintiff is entitled to recover from Defendant reasonable attorneys’ fees and

expenses, as provided by 42 U.S.C. § 1988.

                                    COUNT II
            NEGLIGENT TRAINING /FAILURE TO TRAIN /INADEQUATE TRAINING
                    UNDER 42 U.S.C. § 1983 AGAINST JOHN DOES

       78. Plaintiff hereby adopts, realleges, and incorporates by reference the allegations

contained in paragraphs 1 through 76 above.

       79. The Doe Defendants had the authority to train, supervise, discipline, and

otherwise control Defendant Delaney.

       80. The Doe Defendants had a duty to train Delaney, an investigator under their


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supervision.

       81. The Doe Defendants had a duty to provide reasonable training on the bounds of

testimony that is permitted before a grand jury as expressed in clearly established Supreme

Court, Tenth Circuit, and Kansas constitutional and case law and how to stay within the

bounds of the law in giving grand jury testimony.

       82. The Doe Defendants negligently failed to train their subordinate Delaney in a

manner that reasonable supervisors and trainers would have under the circumstances, and,

thus, the Doe Defendants failed to exercise reasonable care.

       83. In not providing Delaney with additional or different training on the bounds of

permissible testimony before a grand jury, the Doe Defendants were grossly negligent and

demonstrated deliberate indifference to the risk of harm that Delaney could inflict by

testimony that exceeded those bounds.

       84. The Doe Defendants’ failure to provide Delaney with training on the bounds of

testimony permitted before a grand jury proximately caused a deprivation of Turner’s

constitutionally protected rights.

       85. Turner has been damaged as a direct and proximate result of the Doe Defendants’

acts and omissions in failing to provide Delaney with training on the bounds of testimony

permitted before a grand jury in that he has suffered injuries including, but not limited to:

       a. attorney fees and other expenses of defense in the approximate amount of

       $300,000.00 to date;

       b. inconvenience, insult, embarrassment, humiliation, anxiety, mental distress, and

       emotional pain and suffering;


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       c. severe financial difficulties; and,

       d. lost billings as an attorney for BPU and loss of all other clients for a total lost legal

       earnings in excess of $400,000 to date.

       86. The Doe Defendants’ failure to exercise reasonable care in training Delaney on

the bounds of permissible testimony before a grand jury, was willful, wanton, reckless, and

malicious, and further shows a complete and deliberate indifference to, and conscious

disregard for Turner’s rights. Therefore, Turner is entitled to an award of punitive or

exemplary damages in an amount sufficient to punish the Doe Defendants and/or to deter the

Doe Defendants and others from like conduct in the future.

       87. Plaintiff is entitled to recover from the Doe Defendants his reasonable attorneys’

fees and expenses, as provided by 42 U.S.C. § 1988.

                                   JURY TRIAL DEM ANDED

       88. Plaintiff hereby demands a jury trial on all claims herein presented.

                              DESIGNATION OF PLACE OF TRIAL

       89. Plaintiff hereby designates Kansas City, Kansas, as the place of trial.


                                                 Respectfully submitted,

                                                 ARTHUR BENSON & ASSOCIATES


                                                 By s/ Arthur A. Benson II
                                                 Arthur A. Benson II D.Kan. # 70134
                                                 Jamie Kathryn Lansford D.Kan #70220
                                                 4006 Central Avenue (Zip for Courier: 64111)
                                                 P.O. Box 119007
                                                 Kansas City, Missouri 64171-9007
                                                 (816) 531-6565
                                                 (816) 531-6688 (telefacsimile)

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                               abenson@bensonlaw.com
                               jlansford@bensonlaw.com

                               Attorneys for Plaintiff




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