Academic

The Case of the Framed Fly-Fisher?

By Eric Fink

It isn't everyday that fly fishing plays a role in a criminal investigation and appellate court decision. So imagine my glee upon reading the (sadly unpublished) opinion in Miller v. Spiers, 2009 WL 2219256 (10th Cir. July 27, 2009), a case that has the makings of a Coen Brothers movie, or at least a CSI episode. 

The plaintiff, William Miller, was arrested in connection with the murder of one Girly Chew Hossencofft (a name I couldn't possibly have made up) in Albuquerque, New Mexico. Miller was an acquaintance of Diazien Hossencofft (a.k.a. Armand Chavez), Ms. Hossencofft's husband, who, together with his girlfriend, the prosaically-named Linda Henning, was ultimately convicted of the murder (despite the fact that the victim's body was never found).^[1]

And how does fly fishing come into the story? That was how Albuquerque police linked Miller to the crime:

In the course of their investigation, the police collected deer, rabbit, and cat hair, as well as feathers, from the living room carpet in Mrs. Hossencofft's apartment. They also discovered at a nearby highway a bloody blouse, thought to be Mrs. Hossencofft's, wrapped in a tarp. Rabbit and cat hair along with feathers were also collected from the tarp and blouse. A steam cleaner the police thought was used to clean the carpet in Mrs. Hossencofft's apartment likewise contained deer hair. Deer, rabbit, and cat hair, as well as feathers, are all used for tying flies for fly fishing.^[2]

Armed with this evidence, and having learned that Miller was a fly fisherman, Detective Fox applied for a search warrant on Miller's residence [ ... ] seeking 'any and all materials used in fishing, hunting, gaming, or tying flies for fishing to include but not be limited to deer hair,' as well as 'any and all trace evidence.' [ ... ] In executing the search warrant, the police collected feathers as well as deer, rabbit, and cat hair. They turned the evidence over to Arbogast's^[3] forensics department for testing.

On the basis of this evidence, Miller was arrested and taken into custody. At this point, the already strange story takes a further twist:

Immediately after his arrest and while in police custody, Miller hid a couple of business cards in his sock. He then attempted to eat two of these cards and in the process tore one card into several pieces. The police saw Miller try to eat the cards and made him spit them out. [...] [T]he police believed the cards contained the names of Miller's associates who could help in the criminal investigation. The police thus believed Miller tried to hide and destroy evidence in an attempt to hinder their prosecution.

Miller was ultimately indicted for conspiracy, murder, and kidnapping, and for tampering with evidence. The police then obtained another warrant to search Miller's house, this time looking for "any and all tapes containing conversations between [Miller] and his psychic, Cynthia Hess."⁴ Sadly, the 10th Circuit's opinion does not say whether any such tapes were found, so we are left to wonder what, if anything, Mr. Miller revealed to his psychic. In the event, the prosecutor dismissed the conspiracy, murder, and kidnapping charges. Miller ultimately pleaded no contest to one count of attempted tampering with evidence (for trying to eat the business cards).

By the way, the issue before the 10th Circuit was whether Miller could state a viable Section 1983 claim against the police investigators, who he alleged fabricated evidence in an effort to link him with the murder. The court rejected the defense argument that Miller's no contest plea to the tampering charge necessarily precluded him from pursuing a claim for malicious prosecution. That would depend, the court held, on whether Miller's destruction of the business cards was the reason for the prosecution's decision to dismiss the conspiracy, murder, and kidnapping charges. If so, Miller's malicious prosecution claim might be precluded, because his own misconduct would have contributed to the nolle prosequi. In contrast, if the prosecution lacked probable cause for the conspiracy, murder, and kidnapping charges, the dismissal could be treated as a favorable termination for Miller, leaving the door open to a malicious prosecution claim. Consequently, the 10th Circuit remanded, instructing the district court to flesh out the contours of Miller's malicious prosecution claim and to clarify the circumstances leading to the dismissal of the conspiracy, murder, and kidnapping charges.

¹See what I mean about the Coen Brothers?

²I have heard of people using all kinds of odd material for fly tying, but never cat hair. I'd imagine the cat scent would scare off the fish. 

³ I have been unable to determine whether Donna Arbogast of the Albuquerque forensics department is any relation to the celebrated Fred Arbogast, developer of such famous bass fishing lures as the Hula Popper^® and the Jitterbug^®.

⁴ This case truly is the gift that keeps on giving. And I've only scratched the surface. See the Wikipedia entry on Diazien Hossencofft for even more weirdness.

Full post as published by The Faculty Lounge on September 01, 2009 (boomark / email).