Acquitted man wins $16M in civil rights lawsuit

Missouri Lawyers Weekly, Volume 22, Number 36, September 8, 2008, Angela Riley

Acquitted man wins $16M in civil rights lawsuit,
He served five years in prison before his release

A man who served five years in prison before he was acquitted of molesting his adopted daughter was awarded $16 million by a federal jury in a suit against his ex-wife and a Lee’s Summit police officer.

Theodore W. White Jr. was convicted in Jackson County Circuit Court in 1999 for molesting his daughter between 1995 and 1998. After his first trial, information was revealed that his ex-wife, Tina, and the lead detective on the sex abuse allegations, Richard McKinley, were romantically involved. This information allowed White to appeal the Jury’s verdict. Tina is now married to McKinley.

“One of Tina’s coworkers was the whistleblower on the affair,” said White’s attorney, Michael Kanovitz, of Loevy & Loevy. “He called the prosecutors and the judge to let them know of the couple’s relationship. But then it became a question of whether the prosecutors knew then [after the trial] of the full extent of the affair or before.”

Testimony from the prosecutor’s office, the Lee’s Summit police department and from the couple did not resolve how much the office knew or didn’t know during the trial. Their testimony didn’t match, Kanovitz said.

“It became a case of hot potato, where they tried to put the blame on one another,” he said.

On appeal to Western District Court of Appeals, the case was remanded to the circuit court for further proceedings because of the new evidence. White’s second trial ended with a hung jury. The jury was split 11-1 in White’s favor.

“After the trial, many of the jurors were so emotionally ripped up by the fact that they thought [White] was innocent and still in jail, that they held town hall meetings to raise money for his defense.” Kanovitz said. “Many sat in on his third trial to show support. I’ve never seen anything like it.”

On his third trial in February 2005, White was acquitted of all the charges. He filed suit in U.S. District Court for the Western District of Missouri against the McKinleys, the city of Lee’s Summit and the city’s former police chief a month later.

The suit against the city and the police chief was later dropped after a settlement was reached that the city would pay any damages resulting from the lawsuit.

“We argued that [the city’s and police department’s] own policies and procedures contributed to [White’s] constitutional violations,” said plaintiff attorney Brian McCallister, of The McCallister Law Firm. “We believed that the city was complicit, and larger actions should have been taken to discipline McKinley. He only received a written reprimand.”

The lawsuit alleged that the McKinleys had made up the molestation charges, had destroyed or neglected evidence and lied about their relationship conspiring and depriving him of his constitutional right to a fair trial.

White’s attorneys presented evidence that McKinley had violated clear protocols of a nonbiased investigator. There was some indication that he had interviewed White’s daughter before her forensic interview. Typically, police don’t interview child abuse victims because it is very easy to lead them, Kanovitz said.

The plaintiffs also presented evidence that McKinley should have interviewed White while he was in custody. Instead, he had White make a written statement.

“At that point, the only thing [White] could say was that he was innocent,” Kanovitz said. “He didn’t know what his daughter was saying nor could he provide any specific information to counter that. The police always want to speak to the suspect if he’s willing to talk. He had an incredibly strong set of witnesses that said where he was at the last date and time of the last purported incident of abuse, but he wasn’t able to tell that to police until later.”

White’s attorneys also alleged McKinley had suppressed evidence.

“The girl kept a diary that had no record of abuse,” McCallister said.” [McKinley] failed to take into his custody the diary… It miraculously disappeared when asked for during discovery.”

Before the trial, White has settled with some of Tina McKinley’s insurance companies for $600,000 provided if he received a larger verdict he would pursue payment from McKinley’s other insurance companies.

The jury awarded White $14 million in actual damages and $2 million in punitive damages for his claims that Richard McKinley had caused him to be deprived of his right to a fair trial, and that both Tina and Richard McKinley had conspired to deprive him of that right.

Kanovitz believes that bad faith claims may arise out of the lawsuit. He said that the City of Lee’s Summit only has a $2 million policy and its insurer has made statements that it will only pay $300,000 of the verdict.

The McKinleys are planning on appealing.

“[Judge Nanette Laughrey’s] perspective on what the case should have entailed was very limited,” said Richard McKinley’s attorney James Ensz, of Ensz & Jester. “A lot of what we would have liked to have talked about was kept out, and the judge allowed a lot of stuff in that we thought should have been excluded. The case began with the presumption that Ted White was improperly imprisoned for five years. But that wasn’t the case, he was properly imprisoned.”

Ensz believed the jurors looked at the case in a too simplistic manner.

“The jurors made an easy transition that there was a difference between the first and the second and the third trials,” he said. “The only difference was that information of the relationship wasn’t disclosed, and that the information made the difference to them. It was a pretty simplistic way of looking at it. The prosecutors had the information of the relationship early on and decided to proceed. My client, [Richard McKinley] didn’t have the responsibility to keep the action going forward.”


Court: U.S. District Court for the Western District of Missouri

Case Number/Date: 05-0203-CV-W-GAF /Aug. 29, 2008

Judge: Judge Nanette Laughrey

Special Damages: $14 million in actual damages

Caption: Theodore W. White Jr. v. Richard McKinley, Tina McKinley, Kenneth T. Conlee and The City of Lee’s Summit

Plaintiff’s Attorneys: Brian McCallister and Cyndy Short, The McCallister Law Firm, Kansas City, Mo; Michael Kanovitz, Loevy & Loevy, Chicago

Defendants Attorneys: James Ensz and Matt Gist, Ensz & Jester, Kansas City, Mo; James Foland and Amy Coopman, Foland, Wickens, Eisfelder, Roper & Hofer, Kansas City, Mo; John Franke, Franke, Schultz & Mullen, Kansas City, Mo; Jim Sanders and Marty Jackson, Wallace Saunders, Kansas City, Mo.