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Case 1:12-cv-00210-SWS Document 1 Filed 09/17/12 Page 1 of 22
Robert G. Pahlke
THE ROBERT P AHLKE LAW GROUP
2425 Circle Drive, Suite 200
Scottsbluff, NE 69363
(308) 633-4444
(308) 633-4445(f)
Email: rgp@pahlkelawgroup.com
Fl .:
U.S. DISTRICT COURT
DISTr:ICT OF WYOM ING
ZQ12 ~ . EP 17 Prl Y 28
ST EP! AN lL~RRlS , CLERK
CASPER
Donald L. Fuller
Ian K. Sandefer
FULLER, SANDEFER & ASSOCIATES
Attorneys At Law, L.L.C.
242 South Grant Street
Casper, WY 8260 I
(307) 265-3455
(307) 265-2859(f)
Email: fuller@ fullersandeferlaw.com; sandefer@fullersandeferlaw.com
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
TROY DEAN WILLOUGHBY,
)
)
Plaintiff,
)
)
vs.
)
)
)
RANDALL HANSON, )
Former Investigator for the Sublette )
County Attorney's Office, In his )
Individual Capacity; )
)
BRIAN KETTERHAGEN,
)
Former Captain of the Sublette )
County Sheriff's Office, In his )
Individual Capacity;
)
)
SARAH BREW,
)
Deputy in the Sublette County )
Sheriff's Office, In her Individual )
Capacity,
)
)
Defendants.
)
Case No.
12CV 210-S

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COMPLAINT
Plaintiff Troy Dean Willoughby (hereinafter "Plaintiff' or "Mr. Willoughby''), by and
through his undersigned counsel, alleges as follows:
Introduction
"Society wins not only when the guilty are convicted but when
criminal trials are fair; our system of the administration of justice
suffers when any accused is treated unfairly."
-Brady v. Maryland, 373 U.S. 83,
87 (1963).
"In a government of laws, existence of the government will be
imperilled if it fails to observe the law scrupulously. Our
government is the potent, the omnipresent teacher. For good or ill,
it teaches the whole people by its example. Crime is contagious. If
the Government becomes a lawbreaker, it breeds contempt for the
law; it invites every man to become a law unto himself; it invites
anarchy."
-Olmstead v. United States, 277
U.S. 438, 485 (1928) (Brandeis,
J., dissenting).
Members of the Sublette County Sheriffs Office and an Investigator working for the
Sublette County Attorney's Office knowingly and willfully conspired and agreed to withhold,
secret and hide exculpatory evidence in a criminal case against Mr. Willoughby in which he was
tried and convicted for murder. The members of the conspiracy believed that if they disclosed the
exculpatory evidence, as they knew was Constitutionally required, the government could not
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obtain a conviction against Mr. Willoughby. The government agents' plot to keep exculpatory
evidence from both Mr. Willoughby and the prosecutors working on the case was documented by
a surreptitious recording made during the pendency of the conspiracy and coverup by a fellow law
enforcement officer.
In December, 2008, Deputy Lance Gehlhausen, after being moved into the Detectives'
unit of the Sublette County Sheriff's Department, was tasked with recovering files concerning Mr.
Willoughby from Archives. Deputy Gehlhausen, along with the so called "Leadership Team"
investigating the murder of Lisa Ehlers, found exculpatory evidence in one of the files. Deputy
Gehlhausen was then instructed by Defendants to leave the file so they could "look into it."
However, when Deputy Gehlhausen questioned the Defendants about the file months later, they
either intimated they had no knowledge of the file's existence or denied knowing its whereabouts.
At this point Deputy Gehlhausen, concerned with the Defendants' behavior, decided to further
investigate the nature and whereabouts of the missing file. Over the course ofhis investigation,
Deputy Gehlhausen recorded multiple conversations with Defendants. During the conversations,
Defendants made explicit statements as to the exculpatory nature of the evidence, including that if
they turned the evidence over, Mr. Willoughby would "fucking walk." Deputy Gehlhausen's
pleas to Defendants to tum the file over fell on deaf ears. Were it not for the brave actions of
Deputy Gehlhausen, Mr. Willoughby would still be in prison today- serving a life sentence.
Mr. Willoughby was tried for, and convicted of, murder without the disclosure of the
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exculpatory evidence. Two days after Mr. Willoughby's conviction was Affirmed by the
Wyoming Supreme Court, the exculpatory evidence was finally turned over to the Sublette
County Attorney's Office and Mr. Willoughby's defense counsel. Because ofDefendants'
violation of Mr. Willoughby's constitutional rights and conspiracy to withhold exculpatory
evidence in an attempt to secure a conviction, the District Court granted Mr. Willoughby a new
trial, at which a jury of his peers found him Not Guilty. Troy Willoughby spent almost Three
Years incarcerated from the time ofhis arrest until his acquittal.
Jurisdiction- Venue
1. This action arises under the Constitution and laws of the United States and is
brought pursuant to Title 42 U.S.C. § 1983. Jurisdiction is conferred on this Court pursuant to
Title 28 U.S.C. § 1331. Jurisdiction supporting Plaintiffs claim for attorney fees and costs is
conferred by 42 U.S.C. § 1988.
2. Venue in this case is proper pursuant to 28 U.S.C. § 139l(b). All ofthe events
relevant to the claims contained herein occurred within the State ofWyorning.
Parties
3. At all times pertinent hereto Plaintiff, Mr. Willoughby, was a citizen of the United
States of America and resident ofthe State of Montana (except for the time he was wrongfully
incarcerated in the State of Wyoming). Mr. Willoughby presently maintains his residence in
Montana.
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4. Defendant Randall "Randy'' Hanson is a citizen of the United States and a resident
of the State ofWyoming. At all times relevant to the claims against him, Defendant Hanson was
acting under the color of state law in his capacity as an Investigator for the Sublette County
Attorney's Office ("SCAO") in the Ninth Judicial District ofWyoming. He began working on the
investigation of the Lisa Ehlers murder in November, 2008. During his Investigation, Defendant
Hanson was closely involved with virtually every aspect of Mr. Willoughby's arrest and
prosecution. Defendant Hanson, in his capacity as SCAO Investigator, advised and worked with
Defendant Ketterhagen, Defendant Brew, Deputy Gehlhausen, and the SCSO generally, with
respect to the Ehlers and Willoughby investigations. Along with Defendants Ketterhagen and
Brew, Defendant Hanson was a driving force behind Mr. Willoughby's wrongful conviction and
imprisonment. Defendant Hanson is sued in his individual capacity.
5. Defendant Brian Ketterhagen is a citizen of the United States, is a resident of
South Dakota, and at all times pertinent was resident of the State ofWyoming. At all time
relevant to the claims against him, Defendant Ketterhagen was acting under the color of state law
in his capacity as the Sublette County Sheriffs Office ("SCSO") Captain oflnvestigations.
Defendant Ketterhagen was closely involved with the Ehlers investigation from the day the
investigation was reopened until Troy Willoughby's conviction. Ketterhagen, as Captain of
Investigations, supervised and headed the so called "Leadership T earn" conducting the Ehlers
investigation. As lead investigator, Defendant Ketterhagen pursued the arrest and wrongful
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conviction of Mr. Willoughby. Defendant Ketterhagen was the driving force, along with
Defendants Hanson and Brew, of the wrongful conviction and imprisonment of Troy Willoughby.
Defendant Ketterhagen, as head of the Leadership Team at the time of Mr. Willoughby's arrest,
was responsible for ensuring all documents relevant to his investigation, including evidence
exculpatory of Mr. Willoughby, was shared with and turned over to the County Attorney's Office
of the Ninth Judicial District. Defendant Ketterhagen is sued in his individual capacity.
6. Defendant Sarah Brew is a citizen ofthe United States and a resident of the State
ofWyoming. At all times relevant to the claims against her, Defendant Brew was acting under
the color of state law in her capacity as a Sublette County Sheriffs Deputy. Defendant Brew was
closely involved with the Ehlers investigation and, along with Defendants Hanson and
Ketterhagen, was a driving force behind the wrongful conviction and imprisonment ofMr.
Willoughby. Defendant Brew is sued in her individual capacity.
7. At all pertinent times mentioned herein, all of the Defendants sued in their
individual capacity were acting within the scope of their official duties and employment, and under
the color of state law.
Factual Allegations
8. Plaintiffhereby incorporates paragraphs 1-7 by reference.
A. Background
9. On the morning ofJune 21, 1984, Lisa Ehlers' body was found lying on the side of
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Highway 191 near the entrance to Hoback Canyon, in Sublette County, Wyoming. She was shot
to death sometime early that morning.
10. In October, 2008, an investigative team from the Sublette County Sheriffs Office
reopened the investigation of Lisa Ehlers' murder. Troy Willoughby was arrested on March 1,
2009 and convicted on January 29, 2010 of the 1st degree murder of Lisa Ehlers. He was later
sentenced to life imprisonment. The Wyoming Supreme Court affirmed the conviction and
sentence on June 8, 2011.
11. On June 10, 2011, two days after the conviction was affirmed, the Sublette County
& Prosecuting Attorney's Office gave Mr. Willougby's defense team notice of previously
undisclosed, exculpatory evidence. The exculpatory evidence was turned over to the new
Sublette County Attorney by Deputy Lance Gehlhausen of the Sublette County Sheriffs Office.
Mr. Willoughby filed a motion for a New Trial on June 17, 2011 , which was granted on August
16, 2011 , because the undisclosed evidence was exculpatory, material, and had been affirmatively
withheld from the plaintiffs defense team until the June 10, 2011 notice. Troy Willoughby was
acquitted on February 9, 201 2, after a second jury trial that included the previously withheld
exculpatory evidence.
B. Unconstitutional and Conspiratorial Acts
ofthe Investigative "Leadership Team"
12. In December, 2008, Deputy Lance Gehlhausen was moved into Investigations at
the SCSO and began investigating Troy Willoughby. The investigation team, known as the
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"Leadership Team" or "LT," consisted ofDefendant Brian Ketterhagen, Defendant Sarah Brew,
Defendant Randy Hanson, and Deputy Gehlhausen. Deputy Gehlhausen brought a file he checked
out from the Sheriff's archives to the attention ofthe LT members. This file and associated
papers included a 1984 incident report of Sublette County Deputy Sheriff Hank Ruland with
signed victim complaints/statements, a written statement or letter of Rosa Hosking, and
associated civil and criminal papers. After a brief review of papers in the file, the LT members
found that it contained exculpatory evidence. However, Deputy Gehlhausen was instructed to
leave the file with Defendant Ketterhagen, and the members chose to hide the contents of the file
from everyone other than L T members.
13. After returning from an Evidence class in June, 2009, Deputy Gehlhausen found
that the report was still signed out under his name. Deputy Gehlhausen then confronted
Defendant Ketterhagen about the report, but Ketterhagen denied having any knowledge of the
report. On June 25, 2009, Deputy Gehlhausen contacted Defendant Hanson to determine the
whereabouts of the file. In a recorded conversation, Defendant Hanson acknowledged the
existence of the report and told Deputy Gehlhausen the file was locked away in Ketterhagen's
office and that Defendant Hanson would talk to Defendant Ketterhagen about it.
14. By October, 2009, Deputy Gehlhausen had heard nothing more about the report.
Concerned that the report had not yet been turned over to the prosecutor or disclosed to the
Defense, Deputy Gehlhausen recorded multiple conversations with the LT, urging them to tum
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over the exculpatory evidence.
15. The October 6 and 7, 2009 recordings show that the LT members knew the report
to be exculpatory. During the recordings, L T member Ketter hagen explicitly states:
"Yeah, well I agree, I don't feel it's our job. Well, I don't
necessarily, well; you know you may be right. It's
exculpatory."
The LT members worried about turning the report over because it would fit Mr. Willoughby's
alibi "perfectly," and stated Mr. Willoughby had "an ironclad alibi if we can't put him at the scene
at 6 a.m." There is absolutely no doubt that Defendants knew the exculpatory nature of the
evidence they were hiding, as shown by the following statements:
"But see here's the problem, it's exculpatory so we did not
give it up."
"But I know all they're entitled to is anything in reference to
Troy Willoughby, but what they're telling the Judge is they
don't trust us, and they probably have a right not to at this
point."
This statement was made while laughing. The LT members also discussed seeking the advice of
Special Prosecutor Tony Howard, but decided against it, stating:
''Tony, what about bringing him in on this ... to try to figure
this out?"
''Tony ... Howard?"
''Yeah.
''No."
Together the Defendants came to the decision to withhold and hide the exculpatory evidence
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stating:
"Well what do you guys think, what do you want to do?"
"Let' s just keep our mouths shut"
"Because if they find out we knew, that it's exculpatory,
and--- he's gonna fucking walk."
"Even after the trial ifhe's found guilty?"
"Even before the trial, Lucky could be fucking sanctioned
and everything."
"Does she know about this file?"
"Kind of, a little bit, not much."
''We're gonna brain storm, but we may just let it ride and
see what happens."
''They may not even find it."
Deputy Gehlhausen stated during the conversation:
The L T members responded stating:
"So my question is, I know it's gonna be a pain in the ass to
have to answer to, but rather than lose a case because we
didn't turn something over, why don't we turn it over and
just answer to it?"
''The problem is it should have been turned over earlier."
''The best thing is we didn't know it existed."
''Well I'm worried about fucking fingerprints and shit."
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"Oh fuck, they're not gonna get that to fingerprint."
"I say we hang fucking old Lance [i.e., Deputy Gehlhausen]
out to dry."
"I think so too but he seems to be resistant."
The LT members were concerned with the repercussions of not turning the exculpatory evidence
over; the Defendants came to the conscious decision and agreed to keep the exculpatory evidence
secret. As documented by the recordings, the Defendants knew the exculpatory nature of the
evidence and that they were required to disclose it, but instead decided to unconstitutionally
withhold the exculpatory evidence in violation of Mr. Willoughby's Constitutional rights.
16. At Mr. Willoughby's second trial, Defendants Hanson and Ketterhagen admitted
that they should have turned over the exculpatory evidence. In fact, Defendant Hanson agreed
under cross-examination that there was "no excuse" for not turning over the exculpatory
evidence.
17. The prosecuting attorney, Lucketta McMahon, said, in a recorded conversation
with Deputy Gehlhausen and testimony, that she knew about the existence of the report but did
not know the extent of the details contained in the report. McMahon was assured by Defendant
Hanson and the L T members that the report was not exculpatory and did not need to be turned
over to the defense team. She relied on the misrepresentations given by the Defendants.
18. Special Prosecutor, Tony Howard, testified at the hearing for a new trial that he
had no knowledge of the existence ofthe report. Mr. Howard further testified that had he known
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of the report's existence, he would have disclosed it to the defense and conducted a follow-up
investigation with the witnesses. Mr. Howard's testimony is corroborated by the recordings, in
which the LT members made the decision to withhold the exculpatory evidence from him.
19. Mr. Willoughby filed aDemandfor Discovery on June 2, 2009, that included "all
material known to the State of Wyoming, or which may become known, or which through due
diligence may be learned from the investigating officers or the witnesses in this case, which are
favorable to the accused, and any and all other exculpatory information or material discoverable
pursuant to Brady v. Maryland (cite omitted)." On September 30, 2009, Mr. Willoughby filed a
Memorandum and Motion to Compel Discovery and a demand for Brady materials, including
evidence "known only to police investigators and not to the prosecutor." On December 9, 2009,
Mr. Willoughby filed another Motion to Compel, which included "any other discovery under
W.R.Cr.P. 16; Brady and its progeny." Mr. Willoughby filed the second and third discovery
motions because the government in this case could not be trusted, as Defendants laughingly admit
during a recorded conversation. The Defendants knowingly and intentionally withheld, hid, and
secreted the exculpatory evidence, and misrepresented its materiality to the prosecution.
20. In their effort to wrongly convict and incarcerate Mr. Willoughby, Defendants
Hanson, Ketterhagen, and Brew worked closely together sharing information and strategizing, as
evidenced in the Gehlhausen recordings. The Defendants knew the evidence was exculpatory and
agreed that if they disclosed the evidence Mr. Willoughby would be set free. Had Defendants not
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conspired to intentionally withhold material exculpatory information from the prosecutors and
defense team, Mr. Willoughby would not have been wrongfully convicted and incarcerated.
STATEMENT OF CLAIMS
FIRST CLAIM FOR RELIEF
42 U.S.C. § 1983- Hiding, Secreting, and/or Destruction of Exculpatory Evidence
(14th Amendment Violations)
(Against All Defendants in Their Individual Capacities)
21. Plaintiff hereby incorporates by reference all paragraphs of this Complaint as if
fully set forth herein.
22. Defendants were acting under color of state law in their actions and inactions
which occurred at all times relevant to this action.
23. Defendants Hanson, Ketterhagen, and Brew recklessly, knowingly, intentionally,
willfully and wantonly withheld, destroyed, and/or hid exculpatory evidence they knew to be
exculpatory and that they were under a legal obligation to disclose. Defendants intentionally
withheld the exculpatory evidence from the prosecution so that Mr. Willoughby could not use the
exculpatory evidence at his trial. Defendants' decision to withhold the exculpatory evidence was
consciously made and in bad faith. As a result of being subjected to a depravation of a right
guaranteed by the U.S. Constitution, Mr. Willoughby was wrongly convicted for the murder
because the Brady material was withheld. Subsequently, however, Mr. Willoughby was found
Not Guilty after a second trial, in which the exculpatory evidence was turned over and admitted.
24. Defendants Hanson, Ketterhagen, and Brew, during the investigation, knew the
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details of a 1984 report conflicted with the statements made by their key witnesses in the case.
Defendants Hanson, Ketterhagen, and Brew knew the exculpatory nature and materiality of this
evidence, as evidenced by their recorded statements regarding their decision to withhold the
evidence so Mr. Willoughby did not "fucking walk." Yet, the Defendants, with full knowledge of
their clearly established Constitutional responsibility to disclose exculpatory evidence, knowingly,
intentionally, willfully and wantonly kept the report in their possession and misrepresented the
nature of the evidence to the prosecution.
25. Defendants Hanson, Ketterhagen, and Brew recklessly, knowingly, intentionally,
willfully and wantonly destroyed and/or secreted exculpatory evidence they were under a legal
duty to disclose. Defendants threw away, shredded, and/or secreted written statements made by
the prosecutions key witnesses that was exculpatory of Mr. Willoughby. Specifically, Defendants
possessed a written statement made by Rosa Willoughby (Hosking). Defendants did not show
Rosa the statement during an interview with her because "she spit back exactly what I wanted her
to say." Defendants then intentionally destroyed the statement and stated: "I didn't want it to get
somehow inadvertently stuck in with discovery and it raises some kind of eyebrow."
26. The acts or omissions, of each Defendant, described above, were the legal and
proximate cause ofMr. Willoughby's wrongful conviction and incarceration, causing his injuries
alleged herein.
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SECOND CLAIM FOR RELIEF
42 U.S.C. § 1983- False Imprisonment
(4th and 14thAmendment Violations)
(Against All Defendants in Their Individual Capacities)
27. Plaintiffhereby incorporates by reference all paragraphs of this Complaint as if
fully set forth herein.
28. Defendants were acting under color of state law in their actions and inactions
which occurred at all times relevant to this action.
29. Defendants recklessly, knowingly, intentionally, willfully and wantonly withheld
exculpatory evidence that led to the wrongful conviction of Mr. Willoughby, and thereby
unreasonably restricting his freedom for almost three years.
30. No reasonable officer or investigator, as evidenced by Deputy Gehlhausen, in
Defendant Hanson, Ketterhagen, or Brew's position, would have kept the exculpatory evidence in
their possession secretly hidden from the prosecution and defense teams because it pointed to the
Mr. Willoughby's innocence. The Constitution required that the Defendants disclose the
exculpatory evidence.
31. Defendants acted recklessly, knowingly, intentionally, willfully and wantonly by:
(1) systematically hiding and destroying exculpatory evidence from judicial officers, the
prosecuting attorney, Mr. Willoughby and his defense counsel; (2) misrepresenting the
exculpatory nature of the evidence to prosecuting attorney, Lucketta McMahon, when they had
several opportunities to disclose the evidence during an on-going investigation; and, (3)
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conspiring to keep evidence a secret to continue to confine Mr. Willoughby, despite the
exculpatory nature of the evidence and their explicit knowledge of its materiality.
32. Based on the acts described herein, the process by which Mr. Willoughby was
wrongfully convicted and confined was so wholly lacking in the concept of justice in a civilized
society, that Mr. Willoughby was actually deprived of due process and, therefore, was falsely
imprisoned by Defendants Hanson, Ketterhagen, and Brew.
33. The acts or omissions, of each Defendant, described above, were the legal and
proximate cause of Mr. Willoughby's wrongful conviction and incarceration, causing his injuries
alleged herein.
THIRD CLAIM FOR RELIEF
42 U.S.C. § 1983- Fundamental Unfairness of Troy Willoughby's First Criminal Trial
(14th Amendment Procedural and Substantive Due Process Violations)
(Against All Defendants in Their Individual Capacities)
34. Plaintiffhereby incorporates by reference all paragraphs of this Complaint as if
fully set forth herein.
35. Defendants were acting under color of state law in their actions and inactions
which occurred at all times relevant to this action.
36. Mr. Willoughby has a protected liberty interest in freedom from incarceration by
the State, except upon conviction after a trial that complies with all constitutional requirements.
37. By engaging in one or more of the following, each Defendant, as detailed above,
and acting recklessly, knowingly, intentionally, willfully and wantonly, played a personal and
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essential role in ensuring that Mr. Willoughby's criminal trial lacked fundamental fairness to a
degree that shocks the universal sense of justice by: (1) systematically hiding exculpatory evidence
from judicial officers, the prosecuting attorney, Mr. Willoughby and his defense counsel; (2)
misrepresenting the exculpatory nature of the evidence to prosecuting attorney, Lucketta
McMahon, when they had several opportunities to disclose the evidence during an on-going
investigation; and (3) conspiring to keep evidence a secret to continue so to confine Mr.
Willoughby, despite the exculpatory nature ofthe evidence and their explicit knowledge of its
materiality.
38. The Court granted an Order for a new trial on August 16, 2011- vacating and
declaring invalid Mr. Willoughby's conviction. On February 9, 2012, after a new and fair tria~ a
jury found Mr. Willoughby Not Guilty. While the Court vacated Mr. Willoughby's conviction,
Defendants nonetheless recklessly, knowingly, intentionally, willfully and wantonly caused Mr.
Willoughby to be unconstitutionally convicted and confined for almost three years. Their actions
were so egregious and were carried out in a manner that shocks the judicial conscience and
constituted a deprivation of Constitutional dimension. Defendants stated multiple times that the
evidence needed to be disclosed, but if they disclosed it Mr. Willoughby would " fucking walk"
and that Willoughby had "an ironclad alibi if we can't put him at the crime scene at 6 am." These
statements document that Defendants knew risk to Mr. Willoughby's liberty, but deliberately
withheld the exculpatory evidence.
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39. Due to the actions of each Defendant, Mr. Willoughby's criminal trial lacked
fundamental fairness to a degree that shocks the universal sense of justice.
40. The acts or omissions, of each Defendant, described above, were the legal and
proximate cause ofMr. Willoughby's wrongful conviction and incarceration, causing his injuries
alleged herein.
FOURTH CLAIM FOR RELIEF
42 U.S.C. § 1983- Conspiracy To Violate Troy Willoughby's Civil Rights
(4th and 14th Amendment Violations)
(Against All Defendants in Their Individual Capacities)
41. Plaintiff hereby incorporates by reference all paragraphs of this Complaint as if
fully set forth herein.
42. Defendants were acting under color of state law in their actions and inactions
which occurred at all times relevant to this action.
43. Defendants Hanson, Ketterhagen, and Brew recklessly, knowingly, intentionally,
willfully and wantonly conspired and agreed with one another, and others, to deprive Troy
Willoughby of his Fourth and Fourteenth Amendment rights under the United States Constitution
by bringing about his wrongful conviction and confinement, despite their knowledge of the
evidence within their possession that supported Mr. Willoughby's innocence.
44. These Defendants recklessly, knowingly, intentionally, willfully and wantonly acted
in concert throughout the investigation and prosecution ofMr. Willoughby, as documented in
reports, recordings, and testimony. During Defendants' recorded meetings, the main topic of
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discussion was about the exculpatory evidence and what they should do with it. After some
discussion, and contrary to Deputy Gehlhausen's urging, Defendants came to the agreement that
the ''best thing is we didn't know it existed," that "if they find out we knew, that it's exculpatory,
and- he's gonna fucking walk," and they were ''gonna brain storm, but we may just let it ride
and see what happens." These statements document Defendants' conscious decision to work
together to keep the exculpatory evidence secret, so that Mr. Willoughby would not be set free.
45. Each Defendant recklessly, knowingly, intentionally, willfully and wantonly
engaged in overt acts in furtherance of the conspiracy, as described herein, including but not
limited to: (1) withholding and/or hiding exculpatory evidence in an effort to ensure Mr.
Willoughby's wrongful conviction and incarceration; (2) making material misrepresentations to
the prosecutor as to the true exculpatory nature and relevance of the withheld evidence; and (3)
by explicitly agreeing to not disclose the exculpatory evidence in an on-going investigation.
46. In particular, Defendants Hanson, Ketterhagen, and Brew recklessly, knowingly,
intentionally, willfully and wantonly engaged in the overt acts of withholding and/or hiding
evidence exculpatory of Mr. Willoughby from the SCAO with the intent and understanding of
ensuring the evidence would not be discovered by Mr. Willoughby, his defense counsel and
judicial officers, and in furtherance of their conspiracy to unfairly convict and incarcerate Mr.
Willoughby. Defendants made recorded statements stating their knowledge of the gravity of the
evidence and that if they turned it over Mr. Willoughby would walk and that the best thing for
them is to say ''they didn't know it existed."
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47. The acts or omissions, of each Defendant, described above, were the legal and
proximate cause ofMr. Willoughby's wrongful conviction and incarceration, causing his injuries
alleged herein.
FIFTH CLAIM FOR RELIEF
42 U.S.C. § 1983 - Substantive Due Process Claim for Egregious Governmental Conduct
(14th Amendment Violation)
(Against All Defendants in Their Individual Capacities)
48. Plaintiffhereby incorporates by reference all paragraphs of this Complaint as if
fully set forth herein.
49. Defendants were acting under color of state law in their actions and inactions
which occurred at all times relevant to this action.
50. Mr. Willoughby has a protected liberty interest against unconstitutional, arbitrary
action ofthe government.
51. Defendants Hanson, Ketterhagen, and Brew recklessly, knowingly, intentionally,
willfully and wantonly withheld, secreted, and/or hid exculpatory evidence to ensure Mr.
Willoughby would be convicted and incarcerated for murder. Defendants discussed, planned, and
agreed, with deliberate indifference to Mr. Willoughby's constitutional right to liberty, to withhold
exculpatory evidence from the prosecution. Defendants admit in recorded conversations that the
evidence is exculpatory, that it should have been turned over earlier, and that if they turned it over
Mr. Willoughby would "fucking walk." Defendants' acts were egregious and shock the
contemporary conscious. Defendants knew and acknowledged their duty to tum over the
exculpatory evidence, yet they conspired to keep the exculpatory evidence a secret because it
would fit into Mr. Willoughby's defense "perfectly'' and Mr. Willoughby "may not even find it."
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.
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Defendants acts were not the result of a "split-second" decision that an officer is sometimes
required to make. Defendants' acts were deliberately planned and carried out over the course of
Mr. Willoughby's entire trial and appeal. Defendants acts' are so egregious and shocking to the
conscious that Deputy Gehlhausen, a fellow law enforcement officer, recorded multiple
conversations and continually urged that the exculpatory evidence be disclosed. Defendants'
unconscionable acts were the driving force behind Mr. Willoughby's constitutional violation.
52. The acts or omissions, of each Defendant, described above, were the legal and
proximate cause ofMr. Willoughby's wrongful conviction and incarceration, causing his injuries
alleged herein.
WHEREFORE, Plaintiff demands judgment against Defendants as follows:
1) For an amount that will reasonably compensate Plaintiff for all injuries and
damages, general and specific, sustained and provided for by law;
2) For punitive damages against Defendants according to proof;
3) For interest as allowed by law;
4) For Plaintiff's costs, disbursements and reasonable attorney's fees incurred herein;
and
5) For such other and further relief as the Court may deem just and proper.
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Case 1:12-cv-00210-SWS Document 1 Filed 09/17/12 Page 22 of 22
DATED and SIGNED this 11~day of September, 2012.
Attorneys for the Plaintiff
s/Robert G. Pahlke
Robert G. Pahlke (NSBA# 13201)
THE ROBERT PAHLKE LAW GROUP
2425 Circle Drive, Suite 200
Scottsbluff, NE 96393
(308) 633-4444
Ian K. Sandefer (WSB # 6-4334)
Donald L. Fuller (WSB # 5-2955)
Fuller, Sandefer & Associates
Attorneys at Law, L.L.C.
242 South Grant Street
Casper, WY 82601
(307) 265-3455
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