PASADENA — A Santa Monica man who was wrongfully convicted of rape 21 years ago can sue the city of Long Beach and a police officer for allegedly fabricating incriminating evidence used in the sexual assault case, according to a federal court.
The 9th U.S. Circuit Court of Appeals on Monday reversed a lower court’s dismissal of the lawsuit filed by Leonard McSherry several years after he was exonerated of rape charges in 2001, claiming that officials with the city of Long Beach and its police department had falsified information leading to his conviction.
Mark Borenstein, the attorney who represented McSherry, did not respond to requests seeking comment.
McSherry was arrested in May 1988 in connection to a kidnapping and rape of a 6-year-old girl from the playground of a Naval base. She was raped and molested before being released several hours after the kidnapping.
He was sentenced to 48 years to life but was released in December 2001 after DNA linked the crime to George Valdespino, who later confessed. McSherry subsequently filed a lawsuit claiming that authorities fabricated the victim’s description of the interior of the home where the incident took place along with the girl’s identification of the vehicle used in the kidnapping. McSherry also alleged that officials coerced the victim into identifying him as the perpetrator.
Police reports stated that both the victim and her 4-year-old brother who witnessed the abduction identified McSherry as the perpetrator and a yellow Mazda station wagon belonging to his father as the vehicle used in the kidnapping. An adult witness also reportedly picked McSherry out of a lineup as a person she had seen on the day of the incident.
Robert Shannon, the city attorney for Long Beach, said that he is disappointed with the ruling but plans to ask for a reconsideration from the appellate court.
“We felt that the district court was correct dismissing the case,” Shannon said.
The appellate court did uphold the lower court’s ruling that one of the two officers named in the lawsuit should be dropped.
The police report also stated that the victim’s description of the scene where the rape occurred matched a room in the home of McSherry’s grandparents. She described several elements of the room, including a picture of the kidnapper on the wall, a small brown television sitting on a gray dresser, a twin-sized bed with blue sheets and a mirror on the wall, the report said.
Authorities with a search warrant visited the suspected home and noticed a bird in the living room area and a dog barking in the backyard. During a follow-up interview, the victim said she had heard a bird, according to the police report.
After McSherry was exonerated, the victim denied giving a detailed description of the residence.
Shannon said that if unsuccessful once again with the appellate court, he is prepared to try the case before a jury.
“We just don’t believe they are correct and we believe we will convince the jury the officer acted in good faith,” he said.