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Judge finds police acted in bad faith in civil rights case

Josh Moulin, a former Central Point police sergeant, is photographed in 2010 after an expansion of the Southern Oregon High-Tech Crimes Task Force. [Mail Tribune / file photo]
Josh Moulin, a former Central Point police sergeant, is photographed in 2010 after an expansion of the Southern Oregon High-Tech Crimes Task Force. [Mail Tribune / file photo]
City of Central Point cleared of liability in action involving High-Tech Crimes founder

A federal judge has sided with Southern Oregon High-Tech Crimes Task Force founder Josh Moulin on key points of his malicious prosecution lawsuit involving Central Point police leadership and their alleged role in the ultimately dismissed computer crime investigation that resulted in Moulin’s ouster nearly a decade ago.

U.S. District Judge Mark D. Clarke stated April 1 that there was evidence that Central Point police Chief Kristine Allison, Central Point police Lt. Brian Day and task force member Michael Anderson acted in bad faith — and violated Moulin’s due process rights — when they failed to preserve digital evidence key to Moulin’s defense in a computer crime investigation that started in 2012 and was dismissed with prejudice in 2015.

Clarke found there to be “ample evidence” in which a jury could conclude that named defendants including Allison, Day and Anderson made “false statements and material omissions in their reports” that “prevented the prosecutor from exercising independent judgment.”

“Therefore, defendants (Allison, Day and Anderson) are denied qualified immunity,” Clarke wrote.

Clarke, however, also cleared the city of Central Point of liability as a municipality for its role in the 2012 computer crime investigation into Moulin, who founded the task force in 2007 and served on it until his abrupt dismissal in 2012. Clarke also removed some of Moulin’s allegations from a 2017 civil rights lawsuit, including dismissing a claim of fabricated evidence.

Last year, Moulin’s lawyers sought sanctions against the city of Central Point claiming that the city failed to preserve electronic records in their investigation.

Clarke denied sanctions, stating in his order that “while the city of Central Point may not have exercised all the best practices following [Moulin’s] tort claim notice ... the court finds no evidence of nefarious behavior by the city ... during the course of discovery, and no evidence of prejudice against [Moulin].”

At the center of the since-dismissed criminal case into Moulin — as well as the lawsuit alleging malicious prosecution that Moulin first filed in 2017 — was a task force-owned MacBook Pro laptop at Moulin’s home from which he removed files on his first day of paid administrative leave May 16, 2012.

Moulin claims that all he removed was a free password management program called KeePass X from the Macintosh, then securely emptied the trash on the 13-inch laptop so the passwords couldn’t be retrieved.

Proof of Moulin’s claims, however, is “permanently lost” because Central Point searched the laptop four times without using a write-blocker between May 31 and June 7 — despite being a routine protocol at the time in task force digital forensics investigations — causing an important log file to be overwritten.

Clarke stated in an April 1 filing in U.S. District Court that defendants including Allison, Day and Anderson, then a Klamath Falls Police certified forensic examiner, were “on notice that a bad faith failure to preserve potentially exculpatory evidence that is unavailable by other means was a denial of (Moulin’s) right to due process.”

Clarke determined that a reasonable jury could determine that Allison, Day and Anderson acted in bad faith when they permanently lost key evidence on a laptop by ignoring routine digital forensics protocols on four separate occasions and then withheld that information from Moulin’s defense lawyers.

A lawyer representing Allison, Day, Anderson and the city of Central Point filed an objection to Clarke’s findings and recommendation April 29, but the response is sealed in court records. The city has only made blanket denials in the past because Moulin had the criminal case against him expunged.

Court records show that Moulin’s lawyer intends to respond to the city’s objections. A May 6 filing seeking a deadline extension is also sealed in court records.

Clarke’s filing provides the clearest account yet into how the criminal investigation into Moulin began nearly a decade ago, resulting in the eventual unraveling of the state-of-the-art digital crime lab based in Central Point.

Founded in 2007, the task force at its zenith under Moulin served nine Oregon counties and processed hundreds of digital forensics cases, including identity theft and child pornography.

Jackson County Circuit Court Judge Kelly Ravassipour dismissed the criminal charges with prejudice in 2015 because, in part, “trained forensics examiners blatantly disregarded all protocols and training,” and Moulin filed a detailed lawsuit in 2017 seeking $2 million alleging malicious prosecution.

Clarke threw out some of Moulin’s allegations in the April findings. Clarke called Moulin’s claims that the criminal investigation was politically motivated a "bare allegation“ that ”does not suffice to support a claim.”

He also threw out Moulin’s allegations that Allison and the city fabricated a document by signing and backdating a copy of a May 16, 2012 memorandum in 2015 that Moulin alleged had only surfaced in trial court at the 11th hour. Clarke determined that the allegedly falsified memo was hardly a “crucial piece of evidence” considering that Allison and the Oregon Department of Justice went more than a year without it.

“(E)ven if a jury could find that the leave memo had been backdated, (Moulin) has failed to show what injury he suffered from this alleged act,” Clarke’s findings stated.

Moulin’s lawsuit also complained that he was not notified that he was under criminal investigation, but Clarke noted that investigation subjects have “no unabridged constitutional right to be informed that they are the subject of criminal investigation.“

The investigation into Moulin started in early May 2012 with alleged discrepancies in the meeting minutes for the Law Enforcement Advisory Board that oversaw the task force, according to Clarke’s findings. Moulin was a lieutenant at the time.

Allison, then Central Point’s acting police chief, grew concerned that Moulin altered minutes from the February 2012 meeting to add new language giving himself authority to grant time-off requests for task force members.

No criminal charges ever stemmed from the changes. Moulin’s lawsuit previously acknowledged that a change to meeting minutes that was a “mundane, innocent act.”

Moulin founded the task force in 2007, and by the spring of 2012, the task force had a state-of-the art crime lab with more than 40 computers and a server with a capacity triple that of the Library of Congress’ contents. Tensions, however, were mounting.

Ashland police had pulled out of the task force in April 2012 over claims that Moulin was dishonest about the time the task force would need to investigate a laptop seized as evidence in the violent, unsolved murder of David Grubbs, according to Clarke’s findings. Meanwhile, Medford police began expressing concerns about Moulin’s leadership of the task force, and Klamath Falls police were similarly considering pulling their staff from the task force.

On May 16, 2012, Allison placed Moulin on paid administrative leave, which according to the memo handed to Moulin was “pending a thorough investigation into issues surrounding the administration and management of the [task force] as well as the withdrawal of the Ashland Police Department from the task force.”

On May 17, Allison and Day met twice with OSP and then District Attorney Mark Huddleston surrounding the Law Enforcement Advisory Board minutes.

On May 31, Allison convened with OSP detectives and two Central Point IT staff to examine the laptop with Day and Anderson in the room.

On June 4, Allison emailed the city’s IT director asking for a report on what he’d found, and Day issued an email asking him to preserve his findings through screenshots or some other means.

“We need to have something we can show,” Day wrote.

The city stated that it didn’t employ tools such as a write protector because the searches of the Apple laptop were “administrative actions,” but the trial court disagreed. Allison met with OSP and the DA’s office June 9, 11 and 12 to discuss the files deleted from the MacBook Pro.

During the criminal investigation, prosecutors sought to implicate Moulin based on the irretrievable nature of the lost data, but Clarke attributed it to Central Point police’s ”failure to preserve exculpatory evidence.“

Allison testified in Jackson County Circuit Court that she never saw anyone access the computer in her presence, according to Clarke’s findings, which was testimony the trial court found “not credible.”

Reach web editor Nick Morgan at 541-776-4471 or nmorgan@rosebudmedia.com. Follow him on Twitter @MTwebeditor.