Murder of Riley Fox

choi

(1) Last night, I by chance watched a snippet of a television program for ten minutes and then went to bed (because one can not believe everything in TV, and the portion I saw said FOX sued police in federal court and won! It is unlikely under federal law, I thought, because the (female) narrator said police ignored or overlooked evidence: to violate constitutional rights, the state actor must be intentional, not negligent. US Supreme Court half a century ago in several decisions.
(2) Today out of curiosity I check the Web. Here it is, a written condensed version of the television.

Jenner Smith, Joseph Diaz, Anthony Rivas, and Allie Yang, Who killed Riley Fox? How FBI's hunt for 3-year-old girl's killer revealed major mistakes. Murder of Riley Fox, 3, captivated nation. ABC 20/20, May 7, 2021.
https://abc7.com/riley-fox-abc-2020-death-murder/10594464
("In 2010, then-Sheriff Paul Kaupas admitted his department 'obviously dropped the ball' [a phrase from American football] and commissioned an outside review to see what mistakes were made during its handling of the case. * * * 'I think the primary reason they believed that Kevin Fox was responsible, ultimately, was that he was all they had,' said Bill Andrews, the author of the report. 'So five months into the case, they decided to make a run at him -- but not because there was overwhelming, or even remotely convincing, evidence that he had done anything wrong.'  Melissa Fox recalled the moment she learned they'd found Riley's [real] killer")

Note:
(a) Founded in 1988 (by Bill Andrew), based in Burbank, California and with more than 10,000 employees, the privately held Andrews international, LLC is the wholly owned division of US Security Associates operating as the government services, consulting and investigations and international arm. from the firm's LinkedIn Web page.
(b)
(i)
(A) make a run at something: "to try to achieve or win something that involves competing with others"
https://www.macmillandictionary. ... -a-run-at-something
(B) make a run for it: "to suddenly start running because you want to escape   <He saw the guard was looking the other way and made a run for it>"
https://www.macmillandictionary. ... n/make-a-run-for-it
(C) make a run for something: "to run toward something trying to reach it   <Maddie [short for Madison (a female given name) made a run for the exit>"
https://www.macmillandictionary. ... a-run-for-something
(ii)  made a run for: "to attempt to win (something)   <She made a run for a seat in the Senate>"
https://www.merriam-webster.com/dictionary/make%20a%20run%20for

(3) legal decision (later first).
(a) Fox v American Alternative Insurance Corp, 757 F.3d 680 (7th Cir. 2014)
https://scholar.google.com/scholar_case?case=16987423498738393371
("This suit arises from a previous, civil-rights suit brought by Fox and his wife Melissa against AAIC's insureds for, among other claims, wrongful arrest and prosecution. See Fox v. Hayes, 600 F.3d 819 (7th Cir.2010). The defendants in that first suit included several detectives from Will County, Illinois, whom Fox had accused of maliciously pursuing unfounded charges against him. Following a jury verdict awarding the Foxes a total of $15.5 million in damages (including $6.2 million in punitive damages) the detectives reached a deal with the Foxes. They assigned to the Foxes any indemnity claims they might have against the insurance companies, including AAIC, who had controlled their defense. In exchange, they received the Foxes' agreement not to execute the punitive damages awards (which were not covered by any insurer's policy) against their personal assets. Armed with the assignments, Kevin Fox then filed the suit that is the subject of this appeal. * * * As employees of Will County, the detectives benefitted from the county's insurance policies, which provided liability coverage to its law enforcement personnel. St Paul Fire & Marine Insurance Company supplied the first layer of coverage and its policy required it to defend the detectives against the Foxes' suit until it had exhausted its policy limit of $1 million by paying covered settlements or judgments. Will County also had two layers of excess or umbrella liability coverage. Each layer was for $5 million. One policy was from AAIC and the other came from Essex Insurance Company; AAIC provided the secondary and Essex the tertiary layer of coverage. Under AAIC's policy it was not required to 'assume charge of the settlement or defense' until 'the aggregate Limit of Liability of the applicable Schedule Underlying Policy [the St Paul policy] ha[d] been exhausted by payment of claims.' None of the insurance policies provided coverage against liability for punitive damages. * * * [In the previous civil action, US Court of Appeals] upheld $8,166,000 of the damages awarded, including $3.4 million in punitive damages. See Fox, 600 F.3d at 847. * * * Three states that, like Illinois, have public policies prohibiting insurance against punitive damages have held that an insured, and any assignee of the insured like Fox, may not shift to an insurance company through a suit against the insurer for breach of its duty to defend, the wrongdoer's duty to pay punitive damages. See PPG Indus., Inc. v. Transamerica Ins. Co., 20 Cal.4th 310, 84 Cal.Rptr.2d 455, 975 P.2d 652, 658 (1999); Lira v. Shelter Ins. Co., 913 P.2d 514, 518 (Colo.1996); Soto v. State Farm Ins. Co., 83 N.Y.2d 718, 613 N.Y.S.2d 352, 635 N.E.2d 1222, 1225 (1994). To allow tortfeasors to so escape their own personal liability for punitive damages, these courts conclude, would defeat the very purpose of such damages: not to compensate the plaintiff for injury but to punish the tortfeasor. * * * [the following is the past paragraph:] To sum up * * * Fox has no claim for relief against an insurer who breached no duty and * * * did not harm them') (brackets original).

• F.3d stands for Federal Reporter (which reports decisions by US Courts of Appeals) third edition. CA7 is US Court of Appeals for the Seventh Circuit. Based in Chicago).
• AAIC stands for American Alternative Insurance Corporation.
• "Three states that, like Illinois, have public policies"   Citations that immediately followed showed they were California, Colorado and New York.
• "upheld $8,166,000 of the damages awarded, including $3.4 million in punitive damages"  This means that the Goxes could not collect $3.4 million from insurance companies or anybody else, per this decision. In other words, at long last the Foxes got only 8.1 minus 3.4, or $4/7 million, of which approximately a third might have gone to their lawyers. However, civil actions under 42 USC § 1983 (which undergirded the due process claim but NOT state claims) awarded attorney fees (to be paid by defendants). So it is possible that the Foxes got the full $4.7 million.

(b) Fox v Hayes, 600 F.3d 819 (7th Cir. 2010)
https://scholar.google.com/scholar_case?case=10635871639689519544
("The prosecutor eventually dropped the charge after DNA testing excluded Kevin as the donor of DNA found on Riley's body. In the meantime, Kevin spent eight months in jail, separated from his grieving wife and seven-year-old son, while his reputation in the small community where they lived was thoroughly smeared. To this day, no one else has been charged with Riley's murder. * * * [right below the table:] The grand total of the damages awarded to the Foxes was $15.5 million. On motions after verdict, the district court struck all of the punitive damages awarded to Melissa [wife of Kevin Fox] ($2.5 million) and the punitive damages assessed against Wachtl [one of the four detectives in this appeal] ($100,000) on Kevin's claims. In addition, the district court entered an order memorializing the parties' agreement that the judgment against the Estate of John Ruettiger [detective Ruettiger had died before the trial at federal district court at Chicago] was satisfied and the case against it was dismissed. All of this has left the remaining tab at $12,200,000. It is that sum that is in play as the four named defendants — Hayes, Swearengen, Guilfoyle, and Wachtl — appeal [the Foxes did not cross-appeal from district court's two moves of striking above]. * * * at this stage we review the evidence in the light most favorable to the Foxes [because jury sided with the Foxes] * * * Around 1:30 a.m. [right before Kevin was charged with murder his own daughter], Kevin took a polygraph examination, and the examiner immediately told him that the results showed he was not being truthful. (At trial, an expert witness testified that the polygraph results were fabricated.) Kevin could not believe it. Officers brought Melissa into the polygraph room, and the polygraph examiner told her Kevin had failed. Melissa turned to Kevin, told him she loved him, that she believed him, and that she was behind him all the way.  According to the Foxes, Hayes was outside the door when Melissa made those comments, and as soon as she did, he went ballistic. He screamed to the officers to 'get her the fuck out of that room right now,' and a detective started pulling Melissa out of the room by the arm while Hayes screamed 'you're a fucking murderer' at Kevin. Hayes then met Melissa in the doorway and screamed in her face, 'Your husband's a fucking liar, and he's a fucking murderer. He never loved you or your fucking daughter, and he killed her, and you need to learn to fucking get over it.' Melissa said that she was terrified and felt like Hayes had 'crushed the spirit out of her.'  Kevin testified that at this point he was falling apart because he could not believe he failed the polygraph or that Hayes had spoken to his wife as he did. [These formed the basis of Kevin and Melissa's respective claims against Hayes for intentional infliction of emotional distress (IIED, a cause of action under Illinois state law, not federal law)] * * * the verdict on that count [of due process, of the Fourteenth Amendment to the federal constitution] must be set aside [as I say, detectives actions were not deliberate, to set Kevin up for example knowing he was in fact innocent; evidence showed detectives were incompetent] * * * The defendants argue that the $2.7 million award for Melissa's loss of consortium is so excessive [both district court and Court of Appeals disagreed, and left the sum alone] * * * By contrast, the evidence does not come close to supporting the $1 million compensatory award for Melissa's IIED claim. * * * Accordingly, we agree with the defendants that the $1 million award for Melissa's IIED claim is excessive.  Similarly, we think the district court abused its discretion in brushing past the defendants' argument that the $1.6 million false arrest award to Kevin (excluding Ruettiger) is excessive. Damages on a false arrest claim cover the period of detention from a plaintiff's arrest until the first issuance of process [arraignment]. Kevin was arrested (i.e., not free to leave) shortly after 8 p.m., on October 26, 2004. He appeared in court on October 28. For this, the jury awarded $1.7 million, a staggering rate of about $1,100 per minute. For this, the jury awarded $1.7 million, a staggering rate of about $1,100 per minute. * * * [the last paragraph:] Thus, to summarize, of the $12,200,000 in play on this appeal, the Foxes may have judgment for $8,166,000 if the remittiturs we have ordered are accepted. If not, they may have judgment for $8,000,000 and a new trial on the two claims that we have cut back. But we hasten to add that if the Foxes elect to have a new trial on the claims we have reduced, any new award, considering the substantial damages awarded on the other claims, will have to be close to the vicinity we have suggested to be sustained as reasonable")

• Two tables in the opinion showed how much a jury awarded whom (husband or wife) how much. Loss of consortium means lost of companionship (including sex0 during the eight months of Kevin Foxpretrial incarceration in jail.
• remit (vi, from Latin [verb] remittere "to send back, refer, release, relax, ease off, waive (a debt, punishment)," from re- + mittere "to release, let go, send (for a purpose)" — more at ADMIT):
"1a: to abate in force or intensity : MODERATE
* * *
2: to send money (as in payment)"
https://www.merriam-webster.com/dictionary/remit
• remittance (n): "1a: a sum of money remitted
* * *
2: transmittal of money (as to a distant place)"
https://www.merriam-webster.com/dictionary/remittance
• remittitur (n; "[a verb in] Latin, it is sent back, remitted, third person singular present indicative passive of remittere to send back, remit")
https://www.merriam-webster.com/legal/remittitur

(c) The same federal civil action in (3)(b) also included as defendants Will County State's Attorney Jeffrey Tomczak and Will County Sheriff Paul Kaupas, among others. "Tomczak reached a settlement with the Foxs just before the civil trial began.": from the Web.

I fail to find out in the Web the outcome of the lawsuit against Will County sheriff Kaupas at the time, who kept other defendants under his charge (detective, polygraph examiner, etc) on their jobs.