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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------------------------------------X COMPLAINT
CALVIN HARRIS,
Plaintiff,
-against-

DOCKET NO.:
3:17-cv-932 (DNH/DEP)

TIOGA COUNTY, TIOGA COUNTY DISTRICT ATTORNEY’S OFFICE,
FORMER TIOGA COUNTY DISTRICT ATTORNEY GERALD KEENE,
UNIDENTIFIED JANE/JOHN DOE #1-10 TIOGA COUNTY
EMPLOYEES, NEW YORK STATE POLICE INVESTIGATOR STEVEN JURY TRIAL
ANDERSEN, NEW YORK STATE POLICE INVESTIGATOR SUSAN DEMANDED
MULVEY, NEW YORK STATE POLICE INVESTIGATOR LESTER,
UNIDENTIFIED JANE/JOHN DOE #11-20 NEW YORK STATE POLICE
EMPLOYEES, and BARBARA THAYER,
Defendants.
--------------------------------------------------------------------------------------------X
COMPLAINT
1.

Plaintiff Calvin Harris was charged, prosecuted, and tried three times, over an

eleven year period for the death of his ex-wife who went missing on September 11, 2001. Mr.
Harris was targeted, hunted, and pursued; he was incarcerated for more than three and a half
years, removed from his four small children, demonized by scathing wide-spread local and
national media coverage that caused him to be reviled in his close-knit upstate community,
suffered the loss all of his businesses and associated enterprises, and, even after his acquittal,
continues to be labeled a murderer as a result of public statements made by the District Attorney
and law enforcement throughout the 15-year history of his case.
Introduction
2.

On September 11, 2001, Mr. Harris’s estranged wife, Michele Harris, went

missing.

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3.

Her car was found at the end of the very long driveway that led to the family’s

4.

The police searched the family home as well as the extensive wooded property

home.

surrounding the home.
5.

After a week of unfettered access to the Harris property, police discovered

droplets of blood on a door, several small bloodstains on a rug, and trace amounts in the garage,
together constituting less than 10 drops.
6.

Over the next half-decade, police conducted numerous foot, canine, and

helicopter searches involving sonar, radar, heat-sensing, and night-vision equipment.
7.

They followed and tracked Plaintiff’s children. They enlisted the help of all of

Michele Harris’s friends, family, and acquaintances to try to gather incriminating information
about Plaintiff. And yet, during the years that passed, they obtained no evidence implicating
Plaintiff in Michele Harris’s disappearance.
8.

Nevertheless, in 2005, District Attorney Gerald Keene, whose wife had been one

of Michele Harris’s divorce attorneys in her matrimonial action against Plaintiff, made the
decision to indict Mr. Harris.
9.

Together, the Defendants fabricated evidence, falsified evidence, falsely arrested

and maliciously prosecuted Mr. Harris.
10.

This civil rights action seeks damages arising out of Defendants’ violation of the

rights secured by the First, Fourth and Fourteenth Amendments of the United States Constitution
pursuant to 42 U.S.C. §1983, arising under the laws of the State of New York, and arising out of
Defendants’ defamatory statements.

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JURISDICTION AND VENUE
11.

This Court has jurisdiction pursuant to 28 U.S.C. § 1331, over claims arising

under 42 U.S.C. § 1983.
12.

Supplemental jurisdiction over Plaintiff’s state law claims exists pursuant to 28

U.S.C. § 1367(a).
13.

Venue is proper in the Northern District of New York under 28 U.S.C. § 1391(b),

because that is the judicial district in which the Plaintiff resides.
14.

Mr. Harris has complied with the requirements of New York General Municipal

Law Section 50-i by making and serving a notice of claim on the County Attorney for the
County of Tioga on August 19, 2016, within the time required by New York General Municipal
Law Section 50-e. More than thirty days have elapsed since the service of that notice.
15.

On November 4, 2016 a 50-h hearing was held pursuant to New York’s General

Municipal Law § 50-h.
JURY DEMAND
16.

Pursuant to the Seventh Amendment of the United States Constitution, Plaintiff

requests a jury trial on all issues and claims set forth in this Complaint.
PARTIES
17.

Plaintiff, Calvin (“Cal”) Harris is a resident of Tioga County in the State of New

18.

The individually named Tioga County Defendants were at all times employed by

York.

the County of Tioga and were acting in their capacity as Tioga County employees at all times
relevant and pertinent to Plaintiff’s complaint.

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19.

At all times relevant to this complaint, Tioga County District Attorney Defendants

were duly appointed and acting as District Attorneys and/or agents of the Tioga County District
Attorney, acting under color of state law, within the scope of their employment, pursuant to the
statutes, ordinances, regulations, policies, customs, and usage of the County of Tioga and the
State of New York.
20.

Defendant County of Tioga is a body politic and corporate empowered to exercise

home rule.
21.

The County of Tioga County Legislature, the County’s policymaker, has

delegated final policymaking authority for the supervision and control of the County of Tioga
District Attorney’s Office to the duly appointed District Attorney of the County of Tioga.
22.

The individually named New York State Police Investigators were at all times

employed by the State of New York and were acting in their capacity as State of New York
employees at all times relevant and pertinent to Plaintiff’s complaint.
23.

At all times relevant to this complaint, the individually named and unidentified

New York State Police Investigator Defendants were duly appointed and acting under color of
state law, within the scope of their employment, pursuant to the statutes, ordinances, regulations,
policies, customs, and usage of the State of New York.
24.

Defendant Barbara Thayer is a resident of Tioga County, who at all times relevant

to this complaint, was acting as a willful participant in joint activity with the State actors and/or
their agents.
FACTS
25.

In September of 2001, the Plaintiff, Calvin Harris, lived at 381 Hagadorn Hill,

Spencer, New York with his four young children.

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26.

Michele Harris was Plaintiff’s wife and the mother of their four children.

27.

The couple had separated and divorce proceedings were nearing resolution;

although estranged, Michele Harris still continued to come to the family home during the early
morning hours to take care of the children when Mr. Harris went to work.
28.

On September 11, 2001, Michele Harris did not return home; her car was found

parked on the street at the end of the long driveway that led to the family’s home. She was never
seen again.
The Investigation Begins
29.

The police searched the family home as well as the extensive wooded property

surrounding the home.
30.

The efforts to find Michele’s remains or evidence of her murder on the Harris

property were staggering, involving on-the-ground and aerial surveillance, grid searches, canine
searches, heat sensing technology, numerous digs, and diving and use of sonar in the lakes and
ponds on and near the property. So thorough was the search, that a 500 year-old nativeAmerican jaw bone was unearthed. Yet the searches of the property revealed no trace of
Michele, nor any evidence of tracks, recently-disturbed soil, bloody clothing, or anything else
that would suggest foul play.
31.

Similarly, no traces of blood or bodily fluids were found in any of Calvin Harris’s

vehicles. And while trace amounts of dried blood stains – only a few drops – were found in the
kitchen and garage areas of the Harris home, they could not be dated.
Investigation Focuses on Cal Harris
32.

During the years that passed, no additional evidence implicating Calvin Harris in

his ex-wife’s disappearance was obtained.

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33.

Realizing that it was “now or never” and that “the case wasn’t getting any better”

(as Defendant Investigator Lester was quoted in a 48 Hours Mystery, A Time to Kill segment
http://www.cbsnews.com/news/48-hours-mystery-a-time-to-kill-13-02-2010/), the Defendants
set out to compile a case against Calvin Harris.
Fabricated Evidence and Withholding the Truth
Defendant Thayer
34.

In doing so, they found in Barbara Thayer, a willing and able participant who was

only too happy to join the ranks of law enforcement.
35.

Thayer had worked for the Harris family cleaning the home and caring for the

children.
36.

The Investigator and Prosecutor Defendants used and groomed Thayer.

37.

She was the witness who could and would help them frame Cal Harris; she in

turn, willfully collaborated with law enforcement to create the tale of Cal Harris as the coldblooded killer.
38.

When it became apparent that Thayer’s initial and truthful statements to law

enforcement were harmful to their case, the Defendant Investigators and Defendant District
Attorney manipulated her to change her story.
39.

For instance, according to a journal Thayer kept, she had made an entry indicating

that she began to clean out Michele’s belongings from the family home while Cal was outside
the home playing with the children.
40.

This statement was not particularly helpful, so Thayer’s story was changed.

Instead, she lied for the Defendants and claimed that Cal, being heartless and showing no
remorse, began disposing of Michele’s belongings and discarding sentimental marital keepsakes.

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41.

Thayer even held a tag sale to publicly display all of the family keepsakes she

claimed Cal was discarding.
42.

It was clear that the Defendants were controlling her actions as Defendant Mulvey

conveniently came to the tag sale and gained possession of a commemorative wedding plate.
This plate became evidence used against Cal in an attempt to show that he lacked remorse and
was carelessly discarding marital mementoes.
43.

The Defendants also had Thayer lie to Cal Harris in order to gain access to his

home and belongings; using her to surreptitiously lead them through the Harris home, identifying
items to be seized for DNA testing and possible evidence.
44.

A significant piece of exculpatory evidence was the telephone record of a call

made from the Harris home to Michele’s cell phone on the morning she disappeared. Cal Harris
had called Michele’s cellphone looking for her because he had to get to work and she was not
home, as she should have been, to watch the children. Knowing that this was significant – if Cal
had truly killed Michele, he would know where she was and would not have been calling her or
looking for her – Thayer jumped in at Defendants’ behest and lied – stating that she made the
call from the family home.
45.

This lie of Thayer’s is clear evidence that the Defendants persuaded her to

fabricate her testimony. Previously, Thayer had unequivocally denied ever making a telephone
call from the Harris home that morning. And, she made this specific denial in a statement
documented by law enforcement.

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The Blood Evidence
46.

The Defendants’ whole case against Cal Harris hinged on the blood. But to make

that relevant, they had to prove that (1) the blood was deposited as a result of homicidal force;
(2) the blood was recent; and (3) the blood was Michele’s. They knew that they could not prove
any of these things, and some were affirmatively contradicted by other proof available to the
Deefendants. So they concealed the exculpatory evidence from the defense, and fabricated
evidence to support their theory.
Defendant Keane knew that there was an innocent explanation
for the blood droplets in that area
47.

Months prior to Michele’s disappearance, she had cut her hand outside of the

garage of the family home. The location and small quantity of blood was consistent with her
walking through the garage and into the kitchen to clean and bandage her hand. This incident
was reported to her divorce attorney, Betty Keane, the wife of Defendant Keane. 1 It was
incorporated into a family court petition that she prepared, which was filed with the Court. And
it was known by Defendant Gerald Keane, who was given the entire matrimonial file by
Michele’s divorce attorneys.
48.

Defendant Gerald Keane subsequently claimed the file was “privileged” when

subpoenaed by the defense.
49.

Moreover, during a meeting with blood spatter expert Henry Lee, Defendant

Keane questioned Lee about whether the blood could have been deposited from a cut finger. Lee
stated that it could, but the defense would need to prove there was a cut finger – the jury would
demand that the defense prove this regardless of the burden of proof. Defendants Keane,
1

Through Michele’s matrimonial attorneys, Defendant Keane became personally involved in the case on September
12, 2001 – within hours of Michele being reported missing – and possibly even prior to the State Police.

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Mulvey, Andersen all laughed at this (see http://www.cbsnews.com/news/48-hours-mystery-atime-to-kill-13-02-2010/), 48 Hours Outtakes).
50.

Notably, throughout the litigation, defendants fought hard to prevent the defense

from obtaining the matrimonial file, to prevent them from obtaining the exculpatory 48 hours
outtakes, and to prevent the jury from learning of the cut hand.
51.

They proceeded on a theory that the blood must have been the product of Mr.

Harris bludgeoning his wife, although this was contrary to the information imparted to them by
their expert and by the very small quantity of blood, which was inconsistent with a bludgeoning.
The People knew they could not prove the recency of the blood, and physically altered
evidence to attempt to do so and then concealed their alteration from the defense
52.

There is no scientifically valid way to date blood based on its color, and the

Defendants knew this. Nevertheless, they proceeded on a theory that the blood was bright red,
and therefore, fresh.
53.

To this end, they presented photographs to the grand jury and the trial jury

showing the “red” drops of blood at the scene, along with testimony that red means recent.
54.

Not only was the scientific conclusion improper and impermissible, but the

photographs introduced into evidence had been “altered” by the State Police, (as admitted by
Defendant Keane during a meeting with Henry Lee), by “enhancing the color” to make them 10
shades redder than the originally developed prints.
55.

The original, unaltered photographs of the blood drops were developed and

constituted discovery material which the District Attorney Defendant had the obligation to
preserve and provide to the defense under New York law. Defendants destroyed these
photographs. They also concealed from the defense, the judge, and the jury, that the photographs
introduced into evidence as their primary evidence had been altered and color enhanced.
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The Defendant Investigators Altered the Crime Scene
56.

Defendant Investigators altered the crime scene before taking pictures of the

blood droplets by smearing and swabbing the individual droplets and altering their shape.
57.

They then misrepresented to the jury that the photographs were accurate

depictions of the untouched scene, and elicited expert testimony that the shape of the drops
permitted conclusions that they were "medium velocity spatter" caused by a blow.
Defendant District Attorney did not prove the droplets were Michele's blood,
but misrepresented to the jury that they had
58.

Defendant District Attorney used only presumptive LMG testing on the swabs

taken from the stained areas. This showed the drops might be human blood, animal blood, meat
drippings, vegetative matter, or various household chemicals.
59.

Without using confirmatory tests -- although they were available -- Defendant

District Attorney conducted DNA testing on the swabs, finding Michele's DNA on some. The
DNA test they used, however, did not identify the cellular source of the DNA as skin, blood,
saliva, etc. Moreover, the test was human specific; thus it would not register any profile from
another animal species' genetic material.
60.

Thus, as the Defendant District Attorney knew, their results were consistent with

drops of animal blood or vegetative matter, deposited in an area where Michele had walked
barefoot (in fact, her changing room was near the kitchen alcove where the drops were found;
and numerous droplets of dog blood were found in the garage from a family pet with mange) -this would equally result in a positive presumptive test for blood and a DNA match to Michele,
although it would not be her blood.

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61.

Nevertheless, the Defendant District Attorney falsely and knowingly presented

"scientific" testimony to the grand jury and petit juries that the droplets were "Michele's blood,"
when, in fact, the science simply did not permit such conclusion.
Witness Jerome Wilczynski
62.

Another witness procured and groomed by the Investigator Defendants and

presented by the prosecutors was Jerome Wilczynski, Michele Harris’s hairdresser, who gave an
extensive statement to Trooper DelGiorno on September 25, 2001, approximately two weeks
after Michele’s disappearance.
63.

Wilczynski reported information about Cal and Michele’s relationship, including

a telephone conversation he overheard wherein Cal Harris purportedly told Michele to drop the
divorce proceedings or he would make it very difficult for her.
64.

The Defendants put this witness on the stand to testify that he overheard Cal

Harris threatening Michele that she better drop the divorce proceedings or he would kill her and
make her disappear.
65.

The Defendants were aware that Wilczynski had given an extensive statement to

Trooper DelGiorno (and Trooper Phillips who was also present), that this statement was in fact
documented in the police paperwork as Lead 240 and, that Wilczynski made no mention of Cal
Harris threatening to kill Michele Harris or cause her disappearance.
66.

Nevertheless, the Defendants ignored the witness statement given to a fellow law

enforcement official and instead carefully crafted specific questions to elicit testimony that
Wilczynski barely recalled speaking with Trooper DelGiorno.

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67.

Defendants also elicited testimony from Wilczynski denying that he ever told

DelGiorno about the telephone call he overheard even though it was documented in the police
Lead Sheet 240.
Failure to Investigate the Culpability of Stacy Stewart and Chris Thomason
68.

The Defendants failed to pursue the evidence that existed and that pointed to the

culpability of Michele’s boyfriend at the time, Stacey Stewart.
69.

The evidence concerning Stewart was so persuasive that it caused the court to

vacate the jury’s verdict and order a new trial.
70.

The Defendants did not question these suspects, did not speak with their friends or

their family; they did not conduct any thorough or timely searches of the suspects or of their
property.
71.

The statements that these individuals did provide to law enforcement were riddled

with inconsistencies and demonstrable lies.
72.

Their involvement in Michele’s disappearance was suspected by their friends and

co-workers, who flagged them to police.

They had no alibis, and, to the contrary, law

enforcement had evidence that both men were out with Michele on the night she disappeared,
and that shortly thereafter, they burned bloody clothing in Stewart’s burn pit.
73.

Two separate witnesses had seen and reported that a man matching Stewart’s

description with a truck matching Stewart’s truck was at the bottom of Michele’s driveway with
a woman matching Michele’s description in the early morning that she disappeared.
74.

The Defendants did not promptly seek to obtain a warrant to search either man’s

house or property -- or even ask for their consent to do so. Nor did they conduct any surveillance
of the men following the disappearance. They focused only on trying to find, acquire, and build

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proof of Cal’s guilt, and on other suspects for the sole purpose of “excluding” them, as clearly
stated in the Police Lead Sheets.
The Prosecution
75.

Although, the investigation failed to turn up any evidence, the prosecution of

Calvin Harris persisted.
76.

The case against him was strung together with fabricated evidence and false

testimony that the prosecution fed to the press to inflame the passions of the public.
77.

This tragic loss of a mother of four young children remains unanswered to this

day because an investigation that should have taken place never did.
78.

Consistent with the misconduct, the first indictment was dismissed by the court

based upon the prosecutor’s conduct of “intentionally” presenting inadmissible evidence to the
grand jury, telling the grand jurors that there was a background “story” that would be related to
them after the grand jury was concluded and, informing the grand jurors that, as a matter of law,
the prosecutor had already determined that there was enough evidence to warrant a true bill. See
People v. Harris, 15 Misc. 3d 994 (2007).
79.

The People re-presented the case to a different grand jury and the case proceeded

to trial in May of 2007. After a lengthy trial, Plaintiff was found guilty of the one count of
murder in the second degree.
80.

Prior to sentencing, Plaintiff’s counsel filed a motion pursuant to CPL § 330.30 to

set aside the verdict based upon new eyewitness evidence of a blond-haired woman seen at the
foot of the Harris’s driveway on the morning of September 12, 2001, standing next to a young
man with dark hair, a muscular build and a Chevrolet pickup truck.

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81.

The description of the woman matched Michele Harris and the description of the

man and vehicle matched Stacey Stewart.
82.

On November 2, 2007, the court vacated the conviction based upon this newly

discovered evidence.
83.

The People appealed the decision and the appellate court affirmed the vacatur.

84.

The case was tried for a second time and Mr. Harris was found guilty of murder in

the second degree. A motion to set aside the verdict was submitted and denied and Mr. Harris
was sentenced to a term of incarceration of twenty-five (25) years to life.
85.

He appealed the conviction and on July 28, 2011, the appellate court affirmed the

jury’s verdict.
86.

Plaintiff sought leave to the Court of Appeals. The court granted leave and on

October 18, 2012, the conviction was reversed.
87.

At the time of this decision, Plaintiff had already served over 3 ½ years of his

prison term (three weeks upon being indicted in 2005, six months in 2007 after the first
conviction, and then from July/August of 2009 to October of 2012 after the second conviction).
88.

The case was tried for a third time. This trial resulted in a mistrial on May 15,

2015 and the case was retried for a fourth time.
89.

At the conclusion of the fourth trial, on May 24, 2016, Calvin Harris was

acquitted of the one count of murder in the second degree, ending the eleven year nightmare that
destroyed his life.
DAMAGES
90.

The defendants’ unlawful, intentional, willful, purposeful, deliberately indifferent,

reckless, bad-faith and/or malicious acts, misdeeds and omissions caused Mr. Harris to be falsely

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arrested, maliciously prosecuted, unfairly tried, wrongfully convicted, and to endure over three
and one-half years of wrongful imprisonment.
91.

As a direct and proximate result of the acts of the Defendants, the injuries and

damages sustained by Mr. Harris from the deprivation of civil rights include: violation of his
clearly established rights under the Fourth and Fourteenth Amendments to the United States
Constitution; personal injuries; pain and suffering; severe mental anguish; emotional distress;
extreme fear; economic damages including loss of income; infliction of physical illness and
injury resulting from his confinement; inadequate medical care; humiliation, indignities, and
embarrassment; degradation; egregious injury to reputation; permanent loss of natural
psychological development; and restrictions on all forms of personal freedom and physical
liberty including but not limited to diet, sleep, personal contact, educational opportunity,
vocational opportunity, athletic opportunity, personal fulfillment, sexual activity, family
relations, reading, television, movies, travel, enjoyment, and expression. As a direct result of his
unjust convictions and imprisonment, many these disabilities will plague Mr. Harris for the rest
of his life.
92.

All the alleged acts, misdeeds and omissions committed by the individual

defendants described herein for which liability is claimed were done intentionally, willfully,
purposefully, knowingly, unlawfully, maliciously, wantonly, recklessly, and/or with bad faith,
and said proscribed conduct of the individual defendants meets all of the standards for imposition
of punitive damages.
CAUSES OF ACTION
93.

With respect to each cause of action, Plaintiff Calvin Harris incorporates by

reference each paragraph of this complaint.

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FEDERAL CLAIMS
COUNT I:
42 U.S.C. § 1983 Malicious Prosecution
in Violation of the Fourth and Fourteenth Amendments
94.

Defendants acting deliberately and with malice, initiated and took steps to procure

false testimony and continue the criminal prosecution of Mr. Harris, without probable cause or
other legal justification, by fabricating evidence and false testimony, by physically altering the
blood and then concealing their alteration from the defense, by physically altering the crime
scene before taking pictures and then misrepresenting to the jury that the photographs were
accurate depictions of the untouched scene, by falsely and knowingly representing as "scientific"
testimony to the grand jury and petit juries that the droplets were "Michele's blood," when, in
fact, the science simply did not permit such conclusion, by concealing the information in the
matrimonial file that unequivocally established an explanation for the blood, by falsely claiming
that Cal was disposing of Michele’s belongings and marital keepsakes, by eliciting and
presenting as true knowingly false testimony that Cal was disposing of Michele’s belongings and
marital keepsakes, by falsely claiming that Cal did not make the call to Michele on the morning
of her disappearance, by eliciting and presenting as true knowingly false testimony that Cal did
not make the call to Michele on the morning of her disappearance, by eliciting and presenting as
true knowingly false testimony that Cal threatened to kill Michele, by refusing to investigate the
only independent witness leads, and by acting in complete and utter reckless disregard of
favorable evidence disproving Mr. Harris’s guilt and incriminating Stacy Stewart and Chris
Thomason.
95.

There was not even arguable probable cause to arrest or prosecute Mr. Harris on

the basis of the witness statements, and no reasonable officer would have believed there was.

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96.

The prosecution ultimately terminated in Mr. Harris’s favor, when he was

acquitted after a bench trial.
97.

The actions of the Defendants resulted in the unlawful prolonged detention of Mr.

Harris and constituted a conscience-shocking failure to investigate the disappearance of Michele
Harris.
98.

The actions of the Defendants violated Mr. Harris’s clearly established rights

under the Fourth and Fourteenth Amendments, and caused his wrongful conviction, three and
one-half years of imprisonment and all the ongoing injuries and damages set forth above.
COUNT II:
42 U.S.C. § 1983 Fabrication of Evidence
in Violation of the Fourth and Fourteenth Amendments
99.

Defendants deliberately fabricated evidence and false testimony.

100.

Defendant Thayer was a willful participant, acting jointly with the other

Defendants, she changed her testimony, lied, and procured false evidence.
101.

Defendants indoctrinated Defendant Thayer as their informant, convinced her to

lie and change her statements, and fed her ideas and details of the criminal investigation as they
understood them.
102.

Defendants physically altered the blood and then concealed their alteration from

the defense, by physically altering the crime scene before taking pictures and then
misrepresenting to the jury that the photographs were accurate depictions of the untouched scene.
103.

Defendants falsely and knowingly representing as "scientific" testimony to the

grand jury and petit juries that the droplets were "Michele's blood," when, in fact, the science
simply did not permit such conclusion.
104.

Defendants had Thayer and the other witnesses misrepresent the actual facts and

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truth in both handwritten statements and reports as well as in oral, pretrial communications that
were consistent with their later perjurious testimony.
105.

In so doing they grossly overstated both the incriminating value and the reliability

of the statements that purported to implicate Mr. Harris.
106.

This fabrication of evidence violated Mr. Harris’s clearly established Fourteenth

Amendment rights to a fair trial and not to be deprived of liberty without due process of law.
107.

As a direct and proximate result of individual Defendants’ fabrications, Mr.

Harris was wrongfully convicted and suffered the injuries and damages described above.
COUNT III
42 U.S.C. § 1983 Failure to Investigate
in Violation of the Fourth and Fourteenth Amendments
108.

Notwithstanding the fact that no physical or forensic evidence connected Mr.

Harris to Michele Harris’s disappearance and the forensic investigation later proved all the
incriminating details attributed to Mr. Harris to be false, coupled with the discovery of witness
testimony of Michele Harris and her boyfriend being seen at the foot of her driveway,
Defendants refused to acknowledge Mr. Harris’s innocence or to investigate evidence
demonstrating that Stacey Stewart had the motive, the means, and the opportunity to orchestrate
Michele’s death.
109.

This conscience-shocking failure to investigate obvious and known exculpatory

leads deprived Mr. Harris of his liberty, in violation of the Fourth and Fourteenth Amendments.
COUNT IV:
42 U.S.C. § 1983 Suppression of Favorable Evidence
in Violation of the Fourteenth Amendment
110.

Defendants knowingly and deliberately chose not to document or disclose

information that was favorable and material to Mr. Harris’s defense, including, without
limitation, the fact that Michele Harris had cut herself and bled in the garage months before her
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disappearance, evidence of Michele’s drug use, evidence of Michele’s multiple boyfriends,
evidence that Michele Harris and Stacey Stewart were seen by a witness at the foot of her
driveway on the morning of her disappearance, evidence that Barbara Thayer did not make a call
from the Harris home on the morning of Michele’s disappearance, evidence that Cal Harris did
not attempt to sell off Michele’s belongings or sentimental keepsakes from the marriage,
evidence that the blood was physically altered and then concealing the alteration, evidence that
the crime scene was altered before taking pictures and then misrepresenting to the jury that the
photographs were accurate depictions of the untouched scene, falsely leading the jury to
conclude that Michele’s hairdresser heard Cal Harris threaten Michele with death, and keeping
from the jury the fact that this witness never made this statement when he spoke with Trooper
DelGiorno.
111. The true facts, statements and information was material evidence that was
favorable to Mr. Harris’s defense, as it both vitiated the incriminating value of the so-called
blood evidence and witness falsehoods and impeached the witnesses’ perjurious version of
events.
112.

In withholding material exculpatory and impeachment information, Defendants

deprived Mr. Harris’s defense team of it in violation of his clearly established Fourteenth
Amendment right to a fair trial.
113.

Defendants’ suppressions caused Mr. Harris’s wrongful convictions, as well as all

the ongoing injuries and damages set forth above.
COUNT V:
42 U.S.C. § 1983 Civil Rights Conspiracy
114.

Defendants, acting within the scope of their employment and under color of law

and/or as an agent of state actors, shared a common unlawful goal and agreed to act in concert to
19

 Case 3:17-cv-00932-DNH-DEP Document 1 Filed 08/22/17 Page 20 of 26

deprive Mr. Harris of his clearly established constitutional rights, including the right to be free
from malicious prosecution, the right not to be deprived of liberty without due process of law,
and the right to a fair trial.
115.

Overt acts in furtherance of this conspiracy to violate Mr. Harris’s civil rights

include all those acts described above, the course of trickery and lies, and the fabrication of false
evidence and testimony, including and not limited to having Thayer lie, and Thayer willfully
participating and changing her statement documented in her journal that she began disposing of
Michele’s belongings as opposed to Cal being the one to dispose of these items; Thayer having a
tag sale in order to publicly display the wrong impression that Cal was disposing of the family
items; Thayer having a tag sale because Defendants told her to and allowing Defendant Mulvey
the opportunity to gain possession of the commemorative wedding plate for evidence against
Cal; having Thayer lie to Cal Harris to gain access to his home and belongings, and using her to
surreptitiously lead the Defendants through the Harris home, identifying items to be seized for
DNA testing and possible evidence; and, having Thayer lie by stating that she called Michele
from the family home on the morning of her disappearance when Thayer had previously and
unequivocally stated to law enforcement that she never made a phone call from the family home
that morning.
116.

The overt acts the Defendants took in furtherance of the conspiracy continued

through the trials and after Mr. Harris’s conviction into post-conviction proceedings, with the
suppression of exonerating and impeaching evidence as well as the procurement of defense
witnesses.
117.

All the aforementioned acts were done intentionally in a concerted joint effort to

ensure Mr. Harris’s continued unconstitutional imprisonment and to cover up the Defendants’

20

 Case 3:17-cv-00932-DNH-DEP Document 1 Filed 08/22/17 Page 21 of 26

unconstitutional and unlawful conduct.
118.

As a direct and proximate result of this conspiracy to violate his constitutional

rights, Mr. Harris was wrongly arrested, indicted, prosecuted and imprisoned, and suffered all the
ongoing injuries and damages set forth above.
COUNT VI:
42 U.S.C. § 1983 Supervisory Liability
119.

Supervisory Defendants, acting deliberately, recklessly and under color of law,

were, at the relevant times, supervisory personnel with oversight responsibility for training,
hiring, screening, instruction, supervision and discipline of Defendant Investigators and/or
prosecutors and/or John Doe Defendants who deprived Mr. Harris of his clearly established
constitutional rights.
120. Defendant supervisors were personally involved in both the deprivation of Mr.
Harris’s constitutional rights and in creating or condoning the policy or custom of failing to take
preventative and remedial measures to guard against such constitutional deprivations.
121.

Defendant supervisors were reckless in their failure to supervise Defendants, and

either knew or should have known that Defendants were falsely arresting and maliciously
prosecuting civilians, failing to investigate evidence pointing to other leads or suspects,
fabricating and coercing witness testimony, suppressing exculpatory evidence, and depriving
civilians of due process of law.
122.

These supervisory Defendants knew or in the exercise of due diligence would

have known that the conduct of the named and John Doe Defendants against Mr. Harris was
likely to occur.
123.

The failure of these supervisory Defendants to train, supervise and discipline the

named individual Defendants and John Does amounted to gross negligence, deliberate
21

 Case 3:17-cv-00932-DNH-DEP Document 1 Filed 08/22/17 Page 22 of 26

indifference or intentional misconduct which directly caused the injuries and damages set forth
above.
COUNT VII:
42 U.S.C. § 1983 Monell Claim for Unconstitutional Custom or Policy
and Failure to Supervise and Train
124.

The County of Tioga and/or State of New York, by and through its final

policymakers, had in force and effect during the Harris investigation and for years beforehand, a
policy, practice or custom of conducting constitutionally inadequate investigations; of permitting
investigations and/or prosecutions based upon the fabrication of inculpatory evidence; of failing
to obtain probable cause to ensure that suspects would not be falsely arrested and/or maliciously
prosecuted; of suppressing material information favorable to criminal defendants; and of failing
to follow the duties imposed by Brady v. Maryland.
125.

The County of Tioga and/or State of New York systemically failed to adequately

train its police officers, detectives, investigators, and prosecutors to conduct constitutionally
adequate investigations; to not violate the law; to not fabricate evidence; to not withhold
exculpatory evidence; and to obtain probable cause to ensure that suspects would not be falsely
arrested and/or maliciously prosecuted.
126.

The County of Tioga and/or State of New York, by and through its final

policymakers, failed to adequately discipline their investigators and prosecutors for investigative
and/or prosecution wrongdoing, though it was foreseeable that constitutional violations of the
type Mr. Harris suffered would be a predictable result of such failures.
127.

As set forth above, final policymakers for the County of Tioga and/or State of

New York had actual or constructive notice of such failures to train, supervise and provide policy
to its employees, and failed to provide training or supervision despite an obvious need that such

22

 Case 3:17-cv-00932-DNH-DEP Document 1 Filed 08/22/17 Page 23 of 26

training and supervision was required, where Defendants knew that it was foreseeable that
investigators and prosecutors would predictably confront these situations and as a result of the
failure to train and supervise, constitutional violations would result.
128.

Such failures to train, supervise and discipline, and such unconstitutional

municipal customs, practices and/or policies, amounted to deliberate indifference to the
constitutional rights of criminal defendants like Mr. Harris, were the moving force behind the
witnesses’ false and fabricated testimony and the fabricated evidence, and caused his arrest,
prosecution, and incarceration, as well as all the ongoing injuries and damages set forth above.
COUNT VIII:
42 U.S.C. § 1983 Due Process and Stigma-Plus Defamation
129.

Defendants published Plaintiff’s name and made false claims, referring to him as

the murderer of Michele Harris.
130.

These statements are false.

131.

As a result of these statements, Plaintiff has suffered public humiliation, damage

to his reputation, loss of employment, loss of personal associations and loss of the benefits of
liberty.
132.

The publishing of Plaintiff’s name and reference to him as a murderer was

maintained and/or disseminated in a fashion that resulted in the above stated losses.

23

 Case 3:17-cv-00932-DNH-DEP Document 1 Filed 08/22/17 Page 24 of 26

STATE-LAW CLAIMS
COUNT IX:
Malicious Prosecution
133.

The individually named Defendants and/or John Doe Defendants, lacking

probable cause, nonetheless intentionally, recklessly, and with malice, caused Mr. Harris to be
arrested, prosecuted, and convicted of murdering his ex-wife.
134.

Defendants were complaining witnesses whose actions initiated or commenced

the prosecution, and who took steps to ensure that it continued.
135.

Furthermore, the Defendants intentionally withheld and misrepresented facts

vitiating probable cause against Mr. Harris, including but not limited to, by physically altering
the blood and then concealing their alteration from the defense, by physically altering the crime
scene before taking pictures and then misrepresenting to the jury that the photographs were
accurate depictions of the untouched scene, by falsely and knowingly representing as "scientific"
testimony to the grand jury and petit juries that the droplets were "Michele's blood," when, in
fact, the science simply did not permit such conclusion, by refusing to investigate the only
independent witness leads, by recklessly disregarding favorable evidence disproving Mr. Harris’s
guilt and incriminating Stacy Stewart and Chris Thomason, by not disclosing that Michele Harris
had cut herself and bled in the garage months before her disappearance, by not disclosing
evidence of Michele’s alleged drug use, evidence of her multiple boyfriends, evidence that
Michele Harris and Stacey Stewart were seen by a witness at the foot of her driveway on the
morning of her disappearance, evidence that Barbara Thayer did not make a call from the Harris
home on the morning of Michele’s disappearance, evidence that Cal Harris did not attempt to sell
off Michele’s belongings or sentimental keepsakes from the marriage, by falsely leading the jury
to conclude that Michele’s hairdresser heard Cal Harris threaten Michele with death, and by
24

 Case 3:17-cv-00932-DNH-DEP Document 1 Filed 08/22/17 Page 25 of 26

keeping from the jury the fact that this witness never made this statement when he spoke with
Trooper DelGiorno.
136.

As Mr. Harris has maintained for over seventeen years, he is innocent of his ex-

wife’s disappearance.
137.

The prosecution finally terminated in Mr. Harris’s favor when he was acquitted

after the fourth trial.
138.

As a direct and proximate result of defendants’ actions, Mr. Harris was wrongly

prosecuted for eleven years, convicted and imprisoned for over three and one half years, and
suffered other grievous and continuing damages and injuries set forth above.
COUNT X:
Intentional or Negligent Infliction of Emotional Distress
139.

The deliberate conduct of Defendants in fabricating false testimony and evidence,

their ensuing refusal to investigate the obvious suspect, and their cover-up of the truth,
perpetuated in public statements, constitutes the intentional infliction of emotional distress.
140.

In the alternative, the conduct of Defendants breached a duty of care owed to Mr.

Harris as a crime victim and as a citizen, which unreasonably endangered his physical safety, his
children’s safety, or caused him to fear for his own safety and his children’s safety, constituting
the negligent infliction of emotional distress.
141.

Defendants’ conduct, falsely implicating Mr. Harris in the murder of Michele

Harris and subjecting him to public stigma to this day notwithstanding the dismissal of charges
against him, caused Mr. Harris to suffer ongoing, unimaginable emotional distress and traumatic
psychological sequellae.

25

 Case 3:17-cv-00932-DNH-DEP Document 1 Filed 08/22/17 Page 26 of 26

WHEREFORE, Calvin Harris prays as follows:
A. That the Court award compensatory damages to him and against the defendants,
jointly and severally, in an amount to be determined at trial;
B. That the Court award punitive damages to him, and against all individual defendants,
in an amount to be determined at trial, that will deter such conduct by defendants in the future;
C. For a trial by jury;
D. For pre-judgment and post-judgment interest and recovery of his costs, including
reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988 for all 42 U.S.C. § 1983 claims; and
E. For any and all other relief to which he may be entitled.
Dated: Garden City, New York
August 22, 2017

BARKET MARION EPSTEIN & KEARON

By:

/s/ bab
Bruce Barket, Esq. – Bar Roll #: 510384
666 Old County Road-Suite 700
Garden City, N.Y. 11530
(516) 745-1500

26

 Case 3:17-cv-00932-DNH-DEP Document 1-1 Filed 08/22/17 Page 1 of 2

CIVIL COVER SHEET

JS 44 (Rev. 06/17)

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

Calvin Harris

Tioga County, Tioga County District Attorney's Office, et al.

(b) County of Residence of First Listed Plaintiff

Tioga County

County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTIFF CASES)
NOTE:

(c) Attorneys (Firm Name, Address, and Telephone Number)

(IN U.S. PLAINTIFF CASES ONLY)
IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

Attorneys (If Known)

Bruce A. Barket - Barket Marion Epstein & Kearon, LLP
666 Old Country Road, Suite 700, Garden City, New York 11530
(516) 745-1500

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only)
PTF
Citizen of This State
’ 1

’ 1

U.S. Government
Plaintiff

’ 3

Federal Question
(U.S. Government Not a Party)

’ 2

U.S. Government
Defendant

’ 4

Diversity
(Indicate Citizenship of Parties in Item III)

’
’
’
’
’

’ 2

’

2

Incorporated and Principal Place
of Business In Another State

’ 5

’ 5

Citizen or Subject of a
Foreign Country

’ 3

’

3

Foreign Nation

’ 6

’ 6

’
’
’
’
’
’
’

’
’
’
’
’
’
’
’
’
’

’
’
’
’
’
’

Click here for: Nature of Suit Code Descriptions.

TORTS

110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veteran’s Benefits
160 Stockholders’ Suits
190 Other Contract
195 Contract Product Liability
196 Franchise

REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property

’
’
’
’
’
’
’

PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers’
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal Injury Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education

and One Box for Defendant)
DEF
PTF
Incorporated or Principal Place
’ 4
’ 4
of Business In This State

Citizen of Another State

IV. NATURE OF SUIT (Place an “X” in One Box Only)
CONTRACT

DEF
’ 1

FORFEITURE/PENALTY

PERSONAL INJURY
’ 365 Personal Injury Product Liability
’ 367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
’ 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
’ 370 Other Fraud
’ 371 Truth in Lending
’ 380 Other Personal
Property Damage
’ 385 Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
’ 463 Alien Detainee
’ 510 Motions to Vacate
Sentence
’ 530 General
’ 535 Death Penalty
Other:
’ 540 Mandamus & Other
’ 550 Civil Rights
’ 555 Prison Condition
’ 560 Civil Detainee Conditions of
Confinement

’ 625 Drug Related Seizure
of Property 21 USC 881
’ 690 Other

LABOR
’ 710 Fair Labor Standards
Act
’ 720 Labor/Management
Relations
’ 740 Railway Labor Act
’ 751 Family and Medical
Leave Act
’ 790 Other Labor Litigation
’ 791 Employee Retirement
Income Security Act

BANKRUPTCY
’ 422 Appeal 28 USC 158
’ 423 Withdrawal
28 USC 157
PROPERTY RIGHTS
’ 820 Copyrights
’ 830 Patent
’ 835 Patent - Abbreviated
New Drug Application
’ 840 Trademark
SOCIAL SECURITY
’ 861 HIA (1395ff)
’ 862 Black Lung (923)
’ 863 DIWC/DIWW (405(g))
’ 864 SSID Title XVI
’ 865 RSI (405(g))

FEDERAL TAX SUITS
’ 870 Taxes (U.S. Plaintiff
or Defendant)
’ 871 IRS—Third Party
26 USC 7609

IMMIGRATION
’ 462 Naturalization Application
’ 465 Other Immigration
Actions

OTHER STATUTES
’ 375 False Claims Act
’ 376 Qui Tam (31 USC
3729(a))
’ 400 State Reapportionment
’ 410 Antitrust
’ 430 Banks and Banking
’ 450 Commerce
’ 460 Deportation
’ 470 Racketeer Influenced and
Corrupt Organizations
’ 480 Consumer Credit
’ 490 Cable/Sat TV
’ 850 Securities/Commodities/
Exchange
’ 890 Other Statutory Actions
’ 891 Agricultural Acts
’ 893 Environmental Matters
’ 895 Freedom of Information
Act
’ 896 Arbitration
’ 899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
’ 950 Constitutionality of
State Statutes

V. ORIGIN (Place an “X” in One Box Only)
’ 1 Original
Proceeding

’ 2 Removed from
State Court

’ 3

’ 6 Multidistrict
Litigation Transfer
(specify)
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
Remanded from
Appellate Court

’ 4 Reinstated or
Reopened

’ 5 Transferred from
Another District

’ 8 Multidistrict
Litigation Direct File

42 U.S.C. § 1983

VI. CAUSE OF ACTION Brief description of cause:
Violation of Fourth and Fourteenth Amendments, Malicious prosecution, False imprisonment, Civil Conspiracy, ...

’ CHECK IF THIS IS A CLASS ACTION
VII. REQUESTED IN
UNDER RULE 23, F.R.Cv.P.
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
IF ANY
JUDGE
DATE

CHECK YES only if demanded in complaint:
’ Yes
’ No
JURY DEMAND:

DEMAND $

DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD

/s/ Bruce A. Barket - 510384 (Bar Roll Number)

08/22/2017
FOR OFFICE USE ONLY

0206-4111712

RECEIPT #

AMOUNT

Print

$400
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APPLYING IFP

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DNH

MAG. JUDGE

DEP
DEP
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 JS 44 Reverse (Rev. 06/17)

Case 3:17-cv-00932-DNH-DEP Document 1-1 Filed 08/22/17 Page 2 of 2

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a)

(b)

(c)

Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".

II.

Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)

III.

Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.

IV.

Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.

V.

Origin. Place an "X" in one of the seven boxes.
Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statue.

VI.

Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII.

Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.