Titus v. Werkema et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JEFF TITUS,
Plaintiff,
v.
MICHAEL WERKEMA, et al.,
Defendants.
___________________________________/
Case No. 1:23-cv-997
Hon. Hala Y. Jarbou
OPINION
Jeff Titus spent over twenty years in prison for two murder convictions until the Michigan
Attorney General vacated those convictions due to a possible Brady violation. 	Titus has sued
Michael Werkema and Michael Brown, two of the detectives on the cold-case team that allegedly
withheld from the prosecution (1) evidence pointing to an Ohio serial killer as the real culprit and
(2) a written statement that could have been used to impeach a state’s witness. The parties have
moved for summary judgment.
For the reasons herein, Defendants are entitled to summary judgment for Titus’s claim that
Werkema and Brown withheld evidence and knowledge regarding the Ohio serial killer. 	In
addition, Defendant Robert Cinabro, who represents Brown’s estate, is entitled to summary
judgment for Titus’s claim that Brown withheld the written statement that could have impeached
a state’s witness. But neither Titus nor Werkema is entitled to summary judgment for Titus’s claim
that Werkema withheld the witness statement. Accordingly, the Court will dismiss Cinabro and
allow the latter claim against Werkema to proceed.
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
1 of 45

2
I. BACKGROUND
A. Initial Investigation into the Murders
On the afternoon of November 17, 1990, Doug Estes and James Bennett were shot ten feet
apart from each other while hunting in the Fulton State Game Area near Fulton, Michigan. (See
11/26/1990 Wiersema Rep., ECF No. 91-4.) 	Detective Sergeant Bruce Wiersema of the
Kalamazoo County Sheriff’s Office (“KCSO”) led the investigation. Witness interviews revealed
that Estes and Bennett were hunting independently when at some point between 4:30 p.m. and
5:00 p.m. a series of gunshots rang out from the game area. 	(12/3/1990 Wiersema Rep., ECF
No. 91-4, PageID.756.) Bennett’s girlfriend said that Bennett had left home to go hunting at 4:38
p.m. 	(12/3/1990 Wiersema Rep., PageID.755.) 	Estes was hunting with his stepson, Robert
“Bobby” Brown, who reported that Estes went off to hunt on his own sometime after 3 p.m. and
that when it began to grow dark, Bobby went looking for Estes only to find him covered in blood,
lying ten feet away from someone with a bullet hole running through him. (11/26/1990 Wiersema
Rep., PageID.747.) An autopsy report concluded that the killer or killers had used two different
types of ammunition at close range. Bennett was shot in the back with buckshot whereas Estes
was shot in the back with a 12-gauge slug. (Id., PageID.748.)
Authorities who searched the crime scene found Bennett’s gun, but not Estes’s shotgun.
(Id.) During the search, Titus, whose property abuts the game area around 200 feet from where
Estes and Bennett were shot, drove up to a sheriff’s deputy in his pick-up truck, accompanied by
his friend Stan Driskell. See Titus v. Jackson (Titus II), No. 06-10770, 2009 WL 1803209, at *4
(E.D. Mich. June 24, 2009). 1 Titus said he was in the area to check some traps. (See 11/18/1990
1 The Court relies in part on the recitations of the facts in decisions adjudicating Titus’s motions for post-conviction
relief because the parties did not file the complete trial record with their summary judgment motions.
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
2 of 45

3
Richards Rep., ECF No. 104-3, PageID.1317.) Two or three days after the killings, Titus told the
authorities he had found Estes’s missing weapon. (11/26/1990 Wiersema Rep., PageID.748-49.)
1. Titus’s Alibi
When asked about his whereabouts on the afternoon of November 17, Titus told Wiersema
that he had been hunting on the property of Gerald Shepard and Larry Crandall near Battle Creek,
Michigan, approximately 27 miles away from the Fulton State Game Area. 	(Id., PageID.749.)
Titus said that he and Driskell hunted until dark, that he killed a deer, and that he arrived home
shortly after 7 p.m. (Id.) Wiersema then contacted Shepard and his wife, who confirmed that Titus
had been hunting on their property that day, that Titus did not leave until after nightfall, and that
Titus had taken a deer home with him. (Id.) Wiersema eliminated Titus as a suspect based on this
information and the fact that Titus passed a polygraph test. (Wiersema Dep. 115-16, ECF No. 75-
2.)
Driskell later testified at Titus’s trial that he was not with Titus for the entire afternoon; he
did not see Titus between 4:00 pm and 6:00 pm. (Excerpt of Driskell Trial Tr., ECF No. 130-18,
PageID.2989.) But he confirmed that they met up at around 6:00 pm and then drove to Titus’s
home. Titus II, 2009 WL 1803209, at *11. Driskell said that it would have taken them 30 to 40
minutes to drive from where they were hunting to Titus’s property. Id.
2. Accounts of Titus’s Arrival
Titus’s neighbor, Patricia Burnworth, told Wiersema that she learned about the murders
the day they occurred when Titus stopped by her residence between 8:00 p.m. and 9:00 p.m. and
told her about them. (12/3/1990 Wiersema Rep., PageID.755-756.)
Burnworth’s daughter, Bonnie Huffman, was hunting near her parents’ home by the game
area that afternoon. (Id., PageID.756.) Wiersema’s report does not reference Huffman’s encounter
with Titus, but she apparently saw him as well. According to Wiersema, Huffman signed a written
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
3 of 45

4
statement saying that she saw Titus at her mother’s home within the same timeframe given by her
mother. (See Wiersema Dep. 173–74.) As discussed below, however, Huffman gave a different
account at Titus’s trial in 2002. She claimed that she saw Titus at her mother’s house between
5:15 p.m. and 6:00 p.m., before it was completely dark.
3. A Suspicious Motorist
A couple weeks after the killings, Wiersema ran down reports by individuals who reported
seeing suspicious behavior on the day of the murders by a motorist whose car had swerved into a
ditch along a road next to the game area. 	(See 12/3/1990 Wiersema Rep., PageID.755.) 	Helen
Nofz, who lived by the game area, told Wiersema that a neighbor called her home at around 5:00
p.m. and said that a car had swerved into a ditch and needed help. (Id.) Nofz and her eight-year-
old son, Derek, walked over to where the car was stuck with its nose in the ditch. 	(Id.) 	She
described the automobile as a small, black hatchback. (Id.) According to Nofz, the driver said he
swerved into the ditch to avoid a deer and that he was concerned about damaging his wife’s vehicle.
(Id.) Nofz reported that the driver was “sweating profusely” and appeared very upset. (Id.) She
described him as a white man, approximately thirty years old, “a little bit heavy,” and wearing
“gold, round, wire rimmed glasses.” (Id.) About two weeks later, Nofz reported that the car had
Michigan license plates. 	(12/26/1990 Moyer Rep., ECF No. 130-35, PageID.3165.) 	And after
looking through pictures of cars, Nofz said that the vehicle looked similar to a Dodge Shadow.
(Id., PageID.3062.) Nofz also described the driver’s face to a police sketch artist. She rated the
resulting sketch as bearing a 90 percent resemblance to the driver. (Id.) That sketch became part
of the KCSO’s records. (See Sketch, ECF No. 130-24, PageID.3066.)
Huffman also witnessed some of the events involving the driver. She reported hearing the
driver refuse the assistance of three different people in extracting his car from the ditch. (12/3/1990
Wiersema Rep., PageID.756.) Huffman also heard the third volunteer tell the driver that he would
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
4 of 45

5
“call the law,” and the driver changed his mind and accepted the volunteer’s help. (Id.) Huffman
found the about-face “suspicious.” (Id.)
B. Investigation into Thomas Dillon
The murder investigation stalled after a few months. It regained steam in January 1993,
when Wiersema’s friend sent him newspaper clippings discussing possible links between the
shooting deaths of outdoorsmen in Ohio and those in Indiana and Michigan from 1989 to 1992.
(Wiersema Dep. 39; see News Articles, ECF No. 130-24, PageID.3065–3066.) In one article, an
FBI agent said that a “joint federal, state, and local task force” was investigating the killings of
four outdoorsmen in Ohio between 1989 and 1992, with Thomas Dillon as a possible suspect.
(News Articles, PageID.3065.) The agent mentioned additional hunting deaths that “could have
been overlooked as accidents,” including two in “lower Michigan” in 1990, one in northeastern
Indiana in 1991, and two in northeastern Ohio in 1980 and 1983. (Id.) A different article asserted
that a state and federal task force was investigating the killings of eight “sportsmen” by a “sniper”
“from a long distance with a high-powered rifle,” including five killings in eastern Ohio, one in
northeastern Indiana, and two in Kalamazoo County, Michigan. (Id., PageID.3066.)
Around the same time, Terry Van Streain, a KCSO supervisor who had recently taken over
the Fulton murder investigation, learned of Dillon and decided to travel to Ohio to evaluate whether
Dillon could have killed Bennett and Estes. 	(Wiersema Dep. 39–40.) 	Wiersema accompanied
Van Streain to Ohio.
Before the trip, Wiersema received several documents from the Ohio task force
investigating Dillon. (Id. at 45.) In particular, he received a list of hunters who were counted as
being present on November 17, 1990, at a controlled hunt on the grounds of a military base near
Ravenna, Ohio (at the time, the base was known as the Ravenna Arsenal). 	(Id.; Deer Hunting
Party Roster, ECF No. 130-25, PageID.3089.) The list, which was accompanied by a letter from
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
5 of 45

6
the Ravenna Arsenal, showed that Dillon was present during the “night” attendance check for the
hunt (Deer Hunting Party Roster, PageID.3089), which meant that he was present “after 12:00
noon” that day (Ravenna Arsenal Letter, ECF No. 130-25, PageID.3086). Wiersema also received
a tag showing that Dillon had felled a deer and checked it in with the officials monitoring the hunt
at 11:20 a.m. 	(Wiersema Dep. 54; Deer Harvest R., ECF No. 130-25, PageID.3082.) 	Finally,
Wiersema received a receipt showing that Dillon dropped his deer carcass off at a butcher’s shop
in Strasburg, Ohio, for processing that same day. (Wiersema Dep. 55; Strasburg Provision Receipt,
ECF No. 130-25, PageID.3083.)
On February 9, 1993, Wiersema and Van Streain drove to Coshocton County, Ohio, with
Helen Nofz and her young son Derek, so that she and Derek could attempt to identify the driver in
the ditch among six participants in a lineup. 	(See 2/9/1993 Casey Rep., ECF No. 130-8,
PageID.2892.) 	Also present at the lineup were members of the Ohio task force investigating
Dillon, including Harry Trombitas, an FBI agent. 	(Id.; see Wiersema Dep. 63.) 	The Ohio task
force’s report after the lineup notes that both Helen and Derek each wrote down a number
corresponding to one of the lineup participants. (2/9/1993 Casey Rep., PageID.2893.) The report
does not specify which person Helen or Derek picked, or the certainty of their identification;
however, the task force agents told Wiersema the Nofzs had picked Dillon. (Wiersema Dep. 69.)
Wiersema also spoke to Helen and asked whether she was “absolutely certain” that the man she
identified was the driver she saw the day of the murders; she responded that he was the person
who “looks the most like him” but that she could not be “positive.” (Id.)
Notably, no document located in the KCSO’s records in 2020 indicates that the Nofzs
identified Dillon. According to Wiersema, he and Van Streain each dictated a report of the trip
and its outcome, and a copy of their reports would have gone into their individual working files
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
6 of 45

7
and the master file kept by the records department. 	(Id. at 72–73.) 	But Wiersema believes his
report was “misplaced amongst KCS[O] files and cannot be located.” (Id. at 105.) He does not
recall seeing a copy of Van Streain’s dictated report. (Id. at 73.)
Wiersema regarded the outcome of the lineup as reverting the investigation “back to square
one,” in part, because the Nofzs did not make a “positive identification” of Dillon as the driver in
Michigan. 	(Id. at 69-70.) 	Instead, they merely indicated that, of the individuals in the lineup,
Dillon looked the most like the driver. 	(Id. at 73.) 	Wiersema’s “bobber was lit up” by their
identification, and he conveyed this sentiment, as well as the lack of a positive identification, to
the other officers in the sheriff’s department, including Brown. (Id. at 108, 164.) But Wiersema
and Van Streain ruled Dillon out as a suspect, which Wiersema also told Brown. (Id. at 108-9,
112, 126.)
For Wiersema, what eliminated Dillon as a suspect was the apparent impossibility of his
driving from the Ravenna Arsenal to the processing center in Strasburg and then to Fulton,
Michigan, within the window dictated by the earliest possible time Dillon could have left Ravenna
and the latest possible time that Dillon could have committed the murders before swerving into
the ditch at about 5:00 pm. (Id. at 165; Wiersema Aff. ¶ 27, ECF No. 130-33.) The check-in tag
from the hunt at the Ravenna Arsenal shows that Dillon shot a deer at 10:30 a.m. and checked it
in at 11:20 a.m. The hunter roster and letter from the Ravenna Arsenal indicate that Dillon was
still present after 12:00 pm. 	Similarly, according to a 1993 report from the Coshocton County
Sheriff’s Department, a coordinator of the hunt at the Ravenna Arsenal hypothesized that it would
have taken Dillon some time to load his deer onto a truck and drive it to the parking lot after it was
tagged by officials, and that the “best case scenario is Dillon probably did not leave the property
until after 12 noon.” (Shryock Rep., ECF No. 130-24, PageID.3036.) From there, Dillon would
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
7 of 45

8
have had to drive south to Strasburg to drop off his deer at the butcher shop indicated on the receipt,
adding more time to a possible trip to the Fulton State Game Area.
Using a software program, Coshocton County investigators calculated the driving time
from Strasburg to Kalamazoo as 5 hours and 37 minutes (288 miles), and the driving time from
Ravenna to Kalamazoo as 5 hours and 24 minutes (285 miles). (See Automap Calculations, ECF
No. 130-24, PageID.3040-3041.) The investigators provided these calculations to Wiersema and
Van Streain. 	(Wiersema Dep. 165.) 	Assuming Dillon left the Ravenna Arsenal at noon, these
calculations suggest that Dillon could have arrived at the game area no earlier than about 5:30 pm,
about half an hour after Huffman saw the driver in the ditch. 	Of course, the accuracy of that
estimate depends on a variety factors, including Dillon’s travel speed, his actual departure time,
and the duration of any detours he made along the way, such as his stop in Strasburg.2 Neither
Wiersema nor Van Streain independently assessed the accuracy of Automap calculations by
making their own drive from the Ravenna Arsenal to Fulton. (Id. at 164–65.) Nor did Wiersema
attempt to account for alternate routes or evaluate whether the timing would have been more
plausible if Dillon had exceeded the speed limit. (Id. at 166.) Wiersema claims that he and Van
Streain wanted to continue investigating Dillon by looking up Dillon’s wife’s vehicle and testing
how long it would have taken to drive from Ravenna to Strasburg to Fulton, but their captain
“rebuffed” this request. (Id. at 178-79.)
Other pieces of evidence pointing away from Dillon were the differences between his
vehicles and Helen Nofz’s recollections about the vehicle in the ditch. 	Nofz said the car in the
ditch was a black hatchback. 	But Dillon’s vehicle records, which Wiersema received in 1993
2 Neither of the calculations account for the additional time necessary for Dillon to drive approximately 50 miles south
of Ravenna to Strasburg, stop and drop off his deer, and then drive northwest toward Fulton.
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
8 of 45

9
(Wiersema Dep. 51), showed that he drove a gray Chevy Cavalier3 and a red Toyota pickup truck,
neither of which are black hatchbacks (see Dillon Vehicle R., ECF No. 130-25, PageID.3076).
Also, Nofz said the car in the ditch had a Michigan license plate, not an Ohio one, yet Dillon’s
vehicles were registered in Ohio. (See id.)
After hitting this dead end, the murder investigation went cold. (Wiersema Dep. 157.) No
progress was made on finding the killer until a new team of investigators took a fresh look in 2000.
C. Cold-Case Investigation
1. Composition of the Cold Case Team
In 1998, law enforcement agencies in Kalamazoo County formed an entity called the Cold
Case and Career Criminal Apprehension Team in an effort to clear unresolved homicide cases.
(Mattison Dep. 23, 27, ECF No. 104-9.)4 The cold-case team reopened the investigation into the
Fulton State Game Area murders around May 2000. (News Release, ECF No. 91-4, PageID.853.)
Werkema was the team leader. Other members were Brown, Ron Petrowski, Rich Mattison, and
Kevin Spencer. (Werkema Dep. 164, ECF No. 108-11.)
At various points during the investigation, the staffing of the game-area murder
investigation changed. Lance Handlogten joined the cold-case team in August 2001 (Handlogten
Dep. 15–16, ECF No. 108-12), and Gwen Romanak joined in September 2001 (Werkema Dep.
35). Handlogten and Romanak took the reins of the investigation. (Id. at 96–97.) Brown left the
cold case team in January 2001 and retired in January 2002, a few months before Titus’s trial.
(1/17/2002 Prelim. Hr’g Tr. 187, ECF No. 108-6.)
3 FBI Agent Trombitas later asserted in a 2021 interview that the Chevy Cavalier was “predominantly [Dillon’s] wife’s
car.” (Trombitas Interview Tr., ECF No. 91-4, PageID.840.)
4 Other excerpts of Mattison’s deposition are located at ECF Nos. 130-42 and 146-3.
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
9 of 45

10
The first Kalamazoo County prosecutor who worked with the cold-case team was Stuart
Fenton. (Fenton Dep. 12–13, ECF No. 108-15.) Scott Brower later took over that role and tried
the case against Titus. (Brower Aff. ¶ 3, ECF No. 131-41.)
2. Transfer of KCSO Files to the Cold Case Team
When Wiersema and Van Streain worked the case, clerical staff at the KCSO detective’s
bureau compiled the master file of the murder investigation, while KCSO detectives maintained
their own separate “working files” in their offices. (Wiersema Dep. 25, 131.) According to the
bureau’s normal procedure, the master file would have included the detectives’ formal reports
dictated to the clerical staff. (Wiersema Dep. 28, 132; Mattison Dep. 33–34, ECF No. 104-9.) The
master file did not necessarily contain all the information that a detective compiled while
investigating a case. (See Mattison Dep. 35; Werkema Dep. 86–87.) For instance, Wiersema kept
some handwritten notes in his working file that were not added to the master file. 	(Wiersema
Dep. 26, 28-29.) But generally speaking, Wiersema made copies of documents in his working file
for inclusion in the master file. (Id. at 153.)
Around the time that the cold-case team decided to take on the Fulton murders, KCSO
clerical staff made copies of the master file and put them in binders for each member of the cold-
case team. (Mattison Dep. 41–42.) Brown or Mattison brought those copies to the cold-case team.
(Id. at 43–44.) At some point, a binder was created for Fenton, the prosecutor, containing the same
documents the cold-case team members received. (Werkema Dep. 33.)
3. Bankers Box
As of 2020, the documents pertaining to Dillon that Defendants allegedly withheld from
the prosecutor were located inside a Bankers Box held by the KCSO. 	(2/25/2025 Moran Decl.
¶¶ 4-5, ECF No. 130-23.) 	The words “Deer Hunters Case,” “Fulton Game Homicides,” and
“CCCCAT 2002” were written on the side of the box. (See Bankers Box Photo, ECF No. 130-26.)
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
10 of 45

11
The latter referred to the cold-case team. 	(Wiersema Dep. 170.) 	Almost all the Dillon-related
documents were inside a manila folder labelled “Serial Killer.” (2/25/2025 Moran Decl. ¶¶ 4-5.)
The box also contained other manila folders with information related to the murder investigation.
(See Bankers Box Photo.) The parties dispute whether the serial-killer folder or its contents were
known to Defendants before Titus’s trial.
4. Defendants’ Knowledge of Dillon Documents
Near the outset of the cold-case investigation, Wiersema and Brown met with the cold-case
team to discuss their work on the case. (Mattison Dep. 45–47; Wiersema Dep. 79.) Brown brought
a Bankers Box of documents to the meeting. (Wiersema Dep. 79.) Wiersema did not review what
documents were contained in the Bankers Box brought by Brown, and he does not know who
prepared its contents. (Id. at 79-80, 98-99.) The documents in the Bankers Box in 2020 were not
organized in the same way as Wiersema’s working file or the master file held by the KCSO in
1993. (Id. at 80-83.) Mattison did not participate in the compilation of the Bankers Box either.
(Mattison Dep. 53.) But he acknowledges that the words “Deer Hunters Case” found on the box
discovered in 2020 were in his handwriting. (Id. at 54.)
According to Werkema, not everything in the Bankers Box received from Brown was
added to the cold-case team’s file and given to the prosecutor; he says the box contained
“investigative notes” that were not necessarily relevant. 	(Werkema Dep. 86–87.) 	Similarly,
Mattison says that such boxes typically contained “silent observer information” and notes.
(Mattison Dep. 61.) But according to Mattison, some documents from the Bankers Box made it
into the cold-case team members’ binders. (See Mattison Dep. 52.) And all members of the team,
as well as the prosecutor, had access to the box. 	(Werkema Dep. 87–88; Mattison Dep. 59.)
Detectives would reference the notes contained therein periodically, including when they first
joined the cold-case team. (Werkema Dep. 97; Handlogten Dep. 18; Mattison Dep. 149.)
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
11 of 45

12
Wiersema recalls seeing a manila folder labeled “serial killer” shortly after he and Van
Streain returned from Ohio. (Wiersema Dep. 127–28.) He believes that this folder was in Van
Streain’s working file. (Id. at 128.) However, Wiersema does not know what the folder contained
or whether it was among the records provided to the cold-case team. (Id. at 129-30, 133-34.) He
did not draw any attention to Dillon’s potential involvement in the murders, or point to any of the
documents implicating Dillon, during his interview with the cold-case team. (Wiersema Dep. 108;
Wiersema Aff. ¶ 28, ECF No. 130-33.)
No member of the cold-case team recalls seeing any documents mentioning Dillon in the
Bankers Box. Werkema denies that the box contained the serial-killer folder when the cold-case
team conducted its investigation. (Werkema Dep. 90, 94–95, 97, 113–14, 132–33, 153.) Mattison
recalls seeing a folder labeled “serial killer” (Mattison Dep. 62–63), but he does not remember
seeing documents related to Dillon from the Coshocton County Sheriff’s Department or the
newspaper articles about a serial killer (id. at 63–68, 70–73, 125), and he was unaware of any cold-
case team member seeing anything undermining the conclusion that Dillon was not a plausible
suspect. (Mattison Dep. 176–77.) That said, Mattison does recall seeing a copy of Van Streain’s
report about the trip to Ohio in 1993 in the binders passed out to the cold-case team. (Id. at 47–
48, 105.) 	But his understanding from this report was that “Dillon had been cleared” after the
lineup. (Id. at 192-93.)
Construing the evidence in Titus’s favor, a reasonable jury could conclude that Werkema
and Brown were aware of the Serial Killer file and its contents in 2002. If those documents were
in the KCSO’s possession in 2020, inside a Bankers Box with Mattison’s handwriting and a label
referring to the cold case team, a jury could reasonably infer that those documents were in the
Bankers Box held by the cold-case team during its investigation.
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
12 of 45

13
On the other hand, construing the evidence in Defendants’ favor, a jury could conclude
from the testimony of Werkema and other members of the cold-case team that Defendants did not
possess the documents pertaining to Dillon that were discovered in the Bankers Bank in 2020.
5. Defendants’ Knowledge of Dillon and the Nofzs’ Identification
Whatever the contents of the files possessed by the cold-case team, there is no genuine
dispute that Brown and Werkema had some knowledge of the prior investigation into Dillon.
Brown would have known about the investigation into Dillon because he was a detective with the
sheriff’s department at the same time as Wiersema, and he attended meetings at which the
detective’s bureau would have discussed the excursion to Ohio and subsequent dropping of Dillon
as a suspect. (Wiersema Dep. 185–86.) And as discussed above, Wiersema says he told Brown
about the Ohio trip, Nofz’s tentative identification of Dillon, and the decision to eliminate Dillon
as a suspect.
For his part, Werkema acknowledges that Dillon came up “very early” during the cold case
investigation. (Werkema Dep. 89-91.) Some members of the team (including Werkema, Mattison,
Petrowski, and Brown) learned that Dillon was a serial killer of outdoorsmen and that Nofz and
her son had traveled to Ohio and picked Dillon in a lineup. (Id. at 101, 131, 164-65.) They also
learned that the identification by Nofz was “tentative” and that Dillon had been eliminated as a
suspect because he was confirmed to be located several hundred miles away in Ohio on the day of
the murders. (Id. at 90-91, 164.) 	Consequently, they never investigated Dillon. (Id. at 90, 109.)
Handlogten and Romanak, who joined the cold-case team later in its investigation, deny ever
hearing about Dillon or an Ohio serial killer. (Handlogten Dep. 28, 85; Romanak Dep. 60, ECF
No. 108-14.)
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
13 of 45

14
D. Investigation of Titus
The cold-case team focused on Titus as their lead suspect. The team interviewed Titus’s
former coworkers at the Veteran’s Administration hospital in Battle Creek and learned of
inculpating statements that he made. And in mid-2001, the team traveled to the FBI complex in
Quantico, Virginia (see Handlogten Dep. 24–26), where FBI behavioral analysts discussed the
murders with the Michigan investigators and presented their conclusion that Titus was the likely
murderer (Fenton Dep. 23–25, ECF No. 108-15). The police obtained a search warrant for Titus’s
property in August 2001. (Handlogten Dep. 52.) Titus was charged in December 2001. (Charging
Request, ECF No. 108-5, PageID.2169.)
E. Investigation of Charles Lamp
Bill Fette and Ward McDonough represented Titus after his indictment. 	Fette retained
Howard Swabash to investigate the case. (Fette Dep. 30, ECF No. 104-15.) According to a tip
from an inmate, Charles Dean Lamp said in late 1990 or early 1991 that he had shot two hunters
near 	Kalamazoo 	(Swabash 	Notes, 	ECF 	No. 104-13, 	PageID.1546), 	so 	the 	defense 	team
investigated Lamp as an alternative suspect (Fette Dep. 20–21). 	Swabash showed Helen Nofz
pictures of four men, including Lamp, and asked her if any of the men was the driver of the car
stuck in the ditch on the day of the murders. (Swabash Dep. 82–83, ECF No. 104-12; 5/23/2002
Handlogten Rep., ECF No. 104-14, PageID.1552.) Nofz said she thought Lamp looked the most
like the driver. (Swabash Dep. 84.)
F. Revelations About an Ohio Suspect
When Romanak interviewed Nofz in May 2002 about her observations at the new lineup,
she stated that she had participated in a lineup many years earlier, when Wiersema asked her to go
to Ohio to identify the driver who was stuck in the ditch. (5/2/2002 Romanak Rep., ECF No. 108-
3, PageID.2149.) 	Nofz said she picked the person in that lineup who looked the most like the
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
14 of 45

15
driver, but she was not sure it was the same person. (Id.) Nofz also stated that “Wiersema was
looking at a man in Ohio for being the murder suspect,” but Nofz “knew” that the car she saw “was
not from Ohio” because she is from Ohio and would have recognized an Ohio license plate. (Id.,
PageID.2147.) Romanak’s report does not identify the Ohio suspect.
G. Defense Team’s Knowledge of Dillon
There is some evidence that Titus’s defense team was aware of Dillon, though not by name.
Swabash’s notes refer to the “serial killing of hunters in Ohio” (Swabash Notes, PageID.1548),
which he wrote after a conversation with Fette (Swabash Dep. 91), but Swabash asserts that he
“didn’t know about . . . anything going on” relating to the Ohio killings, and Fette did not ask him
to connect those killings to Titus’s case. (Id. at 105-107.) Swabash did not investigate Dillon for
Titus’s defense. (Id. at 91–92.) Similarly, Fette says that he did not know anything about Dillon
at the time of Titus’s trial and that he did not discuss Dillon with Swabash. (Fette Dep. 19, 31–
32.)
H. New Details from Huffman
New details provided by Huffman helped solidify the prosecution’s case against Titus. In
April or May 2002, Huffman apparently told police for the first time that Titus arrived at her
parents’ house between 6:15 p.m. and 6:30 p.m., when it was getting dark. (5/1/2002 Romanak
Rep., ECF No. 108-3, PageID.2138.) This timing conflicted with her mother’s account that Titus
came to their house around 8:00 p.m. or 9:00 p.m., and with the written statement Wiersema says
he took from Huffman when he interviewed her in 1990, which gave the same timeframe as her
mother. 	Huffman’s new statement also undermined Titus’s alibi somewhat because Driskell
claimed that he was with Titus after 6:00 pm. Titus II, 2009 WL 1803209, at *3.
Huffman also claimed that Titus said “he himself had found two dead bodies on his land.”
(5/1/2002 Romanak Rep., PageID.2138.) 	Taken alongside Titus’s alleged statement that he
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
15 of 45

16
personally found the bodies of Estes and Bennett on his own property, Huffman’s new statements
in 2002 provided additional evidence pointing toward his guilt.
I. Flow of Information Between Cold Case Team, Prosecution, and Defense
According to Werkema, as the cold-case team synthesized information into reports, it
distributed those reports to all the team members and to the prosecutor so that each could update
their working files. (Werkema Dep. 49–50.) Brower sent Romanak’s reports to Fette shortly after
receiving them. 	(Brower Decl. ¶ 2, ECF No. 133-3.) 	In addition, the Kalamazoo County
prosecutor’s office had an “open file” policy, meaning it allowed the defendant to review the
prosecuting attorney’s file for favorable evidence. (Brower Dep. 19, ECF No. 108-16; see Fenton
Dep. 46-48.) Brower says that he gave Fette any evidence favorable to Titus that made it into the
file. (Brower Dep. 69.) Fette did not personally review the prosecutor’s file. (Fette Dep. 33.)
Yet it appears that no document specifically naming Dillon as a possible suspect or
suggesting he committed the murders was turned over to the prosecution. (See Brower Aff. ¶¶ 9–
10.) 	Brower claims he did not see the serial-killer folder before or during the trial. 	(Brower
Dep. 18–20.) And he does not recall discussing Dillon with anyone from the cold-case team before
trial. 	(Id. at 79.) 	Similarly, there is no evidence that the prosecutor or the defense received
Huffman’s written statement specifying that she saw Titus at her parents’ house at 8:00 p.m. or
9:00 p.m. Brower denies ever seeing such a statement, as does Fette. (Fette Dep. 24.)
Why Dillon never came to the prosecutor’s attention is a mystery. 	The cold-case team
collectively decided which information to include in its investigative file, and no single team
member was responsible for conveying information to the prosecutor. 	(Werkema Dep. 88;
Mattison Dep. 110; Handlogten Dep. 77–78.) 	Werkema did not discuss Dillon with Brower
(Werkema Dep. 167), and there is no evidence that Brown did so. 	Brower does not recall any
conversations with anyone on the cold-case team about Dillon before the trial. (Brower Dep. 79.)
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
16 of 45

17
Similarly, Fenton, the original prosecutor tasked to the cold-case team, does not recall discussing
Dillon or a serial killer in Ohio. (Fenton Dep. 20, ECF No. 108-15.)
J. Titus’s Criminal Trial
Titus’s three-week trial began on June 26, 2002. Titus II, 2009 WL 1803209, at *2. Doug
Estes’s stepson, Bobby Brown, described the events leading up to his discovering the bodies of
Estes and Bennett. 	Officers explained that Estes’s firearm was missing and that Titus reported
finding it a few days later.
Burnworth described hearing five shots fired in two quick bursts sometime between 4:00
p.m. and 5:00 p.m., and she said that Titus came to her house around 8:00 p.m. or 9:00 p.m. in the
evening. 	Id. 	However, Burnworth’s daughter, Huffman, testified that Titus arrived somewhat
earlier, after it was “too dark to hunt any longer” but before it was completely dark. (Huffman
Excerpt of Trial Tr., ECF No. 130-16, PageID.2968-2969.)
Huffman said she was hunting in the woods near her parents’ property and stopped at about
5:15 p.m. because “it was getting dark.” (Id., PageID.2965.) She headed toward the road where
it was lighter so that she could count her shells and unload her gun. (Id.) After reaching the road,
she turned and walked north about half a mile, in the direction of her parents’ house. (Id.,
PageID.2966-2967.) On the way, she stopped for a few minutes to observe the suspicious driver
in the ditch. (Id., PageID.2974.) Upon arrival at her parents’ home, she saw Titus pulling into the
driveway. (Id., PageID.2968.) According to Huffman, Titus told her and her mother that he had
found two dead bodies. (Id., PageID.2969.) Later, sometime after 6:00 p.m., Huffman heard sirens
from emergency vehicles arriving at the scene. (Id., PageID.2970, 2971, 2974.)
Several witnesses testified about Titus’s tendency to threaten individuals he thought were
trespassing on his property. Huffman said that when she was sitting in a tree straddling the border
between her parents’ land and Titus’s, he told her to get off his property while waving around a
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
17 of 45

18
pistol. 	(Huffman Excerpt of Trial Tr., ECF No. 152-3, PageID.3629–3631.) 	Three other
individuals said that Titus accused them of being on his property when they were not, in fact, on
his property or when there was a good reason for their presence. Two of them testified that Titus
was armed when he confronted them. Titus II, 2009 WL 1803209, at *6–7.
Other witnesses testified that Titus made suspicious or incriminating statements after the
murders. Some of his coworkers testified that he claimed he found the bodies of Estes and Bennett.
Id. at *8. He told another coworker that he found Estes’s missing shotgun and took it home before
the police found it. Id. He told another that he would have “no qualms about shooting someone
who was trespassing on his property” and that the victims were on his property and “deserved to
die.” 	Id. at *9. 	When the coworker accused him of murdering the victims, Titus replied
“probably.” 	Id. 	He made similar comments to other coworkers, saying to one that the victims
deserved their fate because they had been trespassing on his land, and saying to another that the
victims had been trespassing on his property and shooting “his” deer. 	Id. at *8. 	Titus told yet
another coworker that he had confronted the victims before their deaths, “kick[ing] [them] off his
property.” Id. And another witness claimed Titus said he had arrived home around 4:30 p.m. on
the day of the murders. Id.
Detective Petrowski testified that the farm where Titus had been hunting was 27 miles
away from Titus’s property, and that it would take 35 minutes to drive between the two. 	Id. at
*10.
Werkema testified about a conversation he had with Titus in 2001. Titus told Werkema
that he had been hunting with Driskell near Battle Creek, that he shot a deer at around 5:45 p.m.,
that he and Driskell left the farm with deer in tow around 6:00 p.m., that they stopped to eat on the
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
18 of 45

19
way home, and that they arrived at Titus’s house around 7:00 p.m., at which point the two saw the
police lights behind Titus’s property. Id.
Driskell testified that he and Titus had been hunting on the property of the Shepherds near
Battle Creek on the day of the murders. He said that he and Titus went into their separate blinds
around 4:00 p.m. and rejoined between 5:45 p.m. and 6:00 p.m. 	(Driskell Excerpt of Trial Tr.,
ECF No. 130-18, PageID.2989.) Driskell said he helped Titus load the deer he shot into his truck,
then the two drove back to Titus’s farm. Titus II, 2009 WL 1803209, at *11. Driskell confirmed
that it was not uncommon for the two of them to be apart from one another and out of each other’s
sight from 4:00 p.m. to 6:00 p.m. while hunting. Id.
Swabash, the private investigator for Titus, testified about the information that led him to
believe that Charles Lamp was the driver of the vehicle that skidded into the ditch the day of the
murders, and the subsequent photo lineup that Swabash presented to Helen Nofz. 	Nofz then
testified about her encounter with the driver of the crashed vehicle and her observations about his
demeanor. Nofz testified that she selected Lamp as the person who looked most like the driver
among the photos Swabash showed her, but she admitted that she could not positively identify him
as the driver. Id. at *12–13.
After hearing all the evidence, the jury found Titus guilty of the murders.
K. Post-Conviction Review
Titus appealed his convictions unsuccessfully. People v. Titus (Titus I), No. 243642, 2004
WL 316427 (Mich. Ct. App. Feb. 19, 2004). After exhausting his remedies in state court, Titus
filed a habeas corpus petition in federal court. See Titus II, 2009 WL 1803209. The district court
found no basis for disturbing the state court’s judgment. The Sixth Circuit upheld that decision.
Titus v. Jackson (Titus III), 452 F. App’x 647 (6th Cir. 2011).
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
19 of 45

20
1. Discovery of New Dillon Evidence
In 2018, the Sixth Circuit granted Titus permission to file a second habeas petition limited
to the alleged withholding of evidence supporting a two-shooter theory. In re Titus, No. 18-1142
(6th Cir. Apr. 25, 2018). While that case was proceeding, Titus’s petition caught the attention of
Jacinda Davis,5 who began working on an episode about the Fulton State Game Area murders for
a TV series. She later joined forces with Susan Simpson, an attorney and podcast host.
Davis and Simpson uncovered evidence inculpating Dillon that never made its way to the
Michigan authorities, including Werkema and Brown. One piece of evidence was an internal FBI
report by Trombitas asserting that Helen and Derek Nofz “positively identified Dillon as the
individual they saw at the vehicle stuck in the ditch” in November 1990. (FBI Lineup Rep., ECF
No. 91-4, PageID.818.) Other evidence unknown to Defendants made it more plausible that Dillon
could have been in Fulton on the day of the murders. 	According to Trombitas, Dillon was
“notorious” for driving hundreds of miles in a weekend, behavior that FBI agents observed
firsthand. (Trombitas Dep. 86–87, ECF No. 130-36.) Finally, Dillon told a cellmate in 1993 that
he had killed two hunters in the woods who were standing close together, after he “yelled hello”
to them and they looked at him to respond. (See Chappell Aff. ¶ 5, ECF No. 130-37.) Simpson
shared her findings about Dillon with the Innocence Clinic at the University of Michigan Law
School.
2. Discovery of the Serial Killer File
When Innocence Clinic Director David Moran examined the KCSO’s records in June 2020,
he found the folder labeled “Serial Killer” containing 30-40 pages of documents related to Dillon.
5 See K. Tuttle, 2 Murders 3 Decades Ago: A Podcaster and a TV Producer Dig In, N.Y. Times (Oct. 24, 2020),
https://www.nytimes.com/2020/10/21/arts/television/Killer-in-question-undisclosed-true-crime.html
[https://perma.cc/4L7G-ENY7].
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
20 of 45

21
(2/25/2025 Moran Decl. ¶ 4; Moran Dep. 40–42, 53, ECF No. 133-4; see Contents of Serial-Killer
Folder, ECF No. 130-24.) The Innocence Clinic later discovered that the investigative file held by
the Kalamazoo County Prosecutor’s Office (“KCPO”) did not contain any records mentioning
Dillon. (Kalamazoo Cnty. FOIA Resp., ECF No. 108-4, PageID.2166.)
On February 24, 2023, the Michigan Assistant Attorney General agreed to vacate Titus’s
convictions because evidence pointing to Dillon as an alternative suspect had not been provided
to defense counsel. Am. Stip., Titus v. Nagy, No. 2:18-cv-11315 (E.D. Mich. Feb. 24, 2023), ECF
No. 25.
L. Procedural History of This Case
Titus filed this lawsuit against Werkema and Brown on September 19, 2023. Brown died
in 2024, so Robert Cinabro, the personal representative of Brown’s estate, became the substitute
party. Because the parties have stipulated to dismiss other claims, the only remaining claim is that
Brown and Werkema withheld evidence from the prosecutor in violation of their obligations under
Brady v. Maryland, 373 U.S. 83 (1963). 	Before the Court are the parties’ cross-motions for
summary judgment on the Brady claim.
II. STANDARDS
A. Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” 	Fed. R. Civ.
P. 56(a). A fact is material if it “might affect the outcome of the suit.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). 	A material fact is genuinely disputed when there is “sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that party.” 	Id. at 249
(citing First Nat’l Bank of Ariz v. City Serve. Co., 391 U.S. 253, 288-89 (1961)). 	Summary
judgment is not an opportunity for the Court to resolve factual disputes. Id. The Court “must shy
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
21 of 45

22
away from weighing the evidence and instead view all the facts in the light most favorable to the
nonmoving party and draw all justifiable inferences in their favor.” Wyatt v. Nissan N. Am., Inc.,
999 F.3d 400, 410 (6th Cir. 2021).
“This standard of review remains the same for reviewing cross-motions for summary
judgment.” 	Ohio State Univ. v. Redbubble, Inc., 989 F.3d 435, 411 (6th Cir. 2021). 	“[A] case
involving cross-motions for summary judgment requires ‘evaluat[ing] each party’s motion on its
own merits, taking care in each instance to draw all reasonable inferences against the party whose
motion is under consideration.’” 	Id. at 442 (quoting EMW Women’s Surgical Ctr., P.S.C. v.
Beshear, 920 F.3d 421, 425 (6th Cir. 2019)).
B. Qualified Immunity
Defendants contend that they are entitled to qualified immunity, which “protects ‘all but
the plainly incompetent or those who knowingly violate the law.’” City of Tahlequah v. Bond, 595
U.S. 9, 12 (2021) (quoting District of Columbia v. Wesby, 583 U.S. 48, 63 (2018)). “At summary
judgment, a government official is entitled to qualified immunity unless the evidence, viewed in
the light most favorable to the plaintiff, would permit a reasonable juror to find that ‘(1) the
defendant violated a constitutional right; and (2) the right was clearly established.’” 	Raimey v.
City of Niles, 77 F.4th 441, 447 (6th Cir. 2023) (quoting Quigley v. Tuong Vinh Thai, 707 F.3d
675, 680-81 (6th Cir. 2013)). “If either prong is not met, then the government officer is entitled
to qualified immunity.” Doe v. Miami Univ., 882 F.3d 579, 604 (6th Cir. 2018). The Court can
consider the two prongs in any order. Gambrel v. Knox County, 25 F.4th 391, 401 (6th Cir. 2022).
For the second prong, the government official’s conduct violates clearly established law
when, “at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’
that every ‘reasonable official would [have understood] that what he is doing violates that right.’”
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
22 of 45

23
(1987)). 	This inquiry “must be undertaken in light of the specific context of the case, not as a
broad general proposition.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (quoting Saucier v.
Katz, 533 U.S. 194, 201 (2001)). In other words, the Court may not “define clearly established
law at too high a level of generality.” City of Tahlequah, 595 U.S. at 12. The level of generality
is too high “if a court cannot ‘immediately’ say that the defendant’s conduct violated the [law].”
Clark v. Louisville-Jefferson Cnty. Metro Gov’t, 130 F.4th 571, 582 (6th Cir. 2025) (quoting Beck
v. Hamblen County, 969 F.3d 592, 599 (6th Cir. 2020)).
“Although ‘a case directly on point’ is not necessary to overcome qualified immunity,
‘existing precedent must have placed the . . . constitutional question beyond debate.’” Linden v.
City of Southfield, 75 F.4th 597, 602 (6th Cir. 2023) (quoting al-Kidd, 563 U.S. at 741). The “rule
must be ‘settled law.’” 	Wesby, 583 U.S. at 63 (quoting Hunter v. Bryant, 502 U.S. 224, 228
(1991)). “It is not enough that the rule is suggested by then-existing precedent.” Id.
Once the qualified immunity defense is raised, the “plaintiff bears the burden of
overcoming qualified immunity.” 	Crawford v. Tilley, 15 F.4th 752, 760 (6th Cir. 2021). 	That
burden includes “pointing to legal authority that clearly shows that the constitutional question . . .
should be resolved in [the plaintiff’s] favor.” Linden, 75 F.4th at 604.
III. ANALYSIS
A. Brady Claim
Titus claims that Werkema and Brown deprived him of a fair trial by not turning over
(1) evidence and knowledge pointing to Dillon as an alternative suspect, and (2) a written
statement by Huffman supporting Titus’s alibi. In Brady, the Supreme Court held that prosecutors
violate due process when they suppress material evidence that is favorable to the accused. Brady,
373 U.S. at 87. Generally, Brady claims have three elements: (1) “the evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is impeaching,” (2) “that
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
23 of 45

24
evidence must have been suppressed by the State, either willfully or inadvertently,” and (3) the
evidence was material in the sense that “prejudice must have ensued.” 	Jackson v. City of
Cleveland, 925 F.3d 793, 814 (6th Cir. 2019) (emphases added) (quoting Strickler v. Greene, 527
U.S. 263, 281-82 (1999)). 	Police officers, in turn, have a duty to hand off materially favorable
evidence to the prosecution, and the officers may be liable for a Brady violation if “‘the
exculpatory value’ of the undisclosed evidence should have been ‘apparent’ to the officers.”
Clark, 130 F.4th at 579 (emphasis added) (quoting Moldowan v. City of Warren, 578 F.3d 351,
382 (6th Cir. 2009)).
Favorability. 	Evidence is favorable if it “creates a reasonable doubt, whether it is
exculpatory or impeachment evidence.” McNeill v. Bagley, 10 F.4th 588, 598 (6th Cir. 2021). The
favorability element imposes a “relatively low threshold.” Id.
Suppression. 	Evidence is suppressed from the defense if not made available to it.
Suppression also “requires that the evidence be in the exclusive control of the state.” Id. at 600.
Police officers are not obligated to disclose that which was “readily available to the defense from
another source.” Matthews v. Ishee, 486 F.3d 883, 891 (6th Cir. 2007). Evidence readily available
from another source includes publicly available information, Stockdale v. Helper, 979 F.3d 498,
504 (6th Cir. 2020), as well as any information available through “minimal investigation” on the
criminal defendant’s part, United States v. Paulus, 952 F.3d 717, 725 (6th Cir. 2020).
Materiality. Evidence is material if there is a “reasonable probability” that its disclosure
would have resulted in a different outcome at trial. Hughbanks v. Hudson, 2 F.4th 527, 539–40
(6th Cir. 2021). A “reasonable probability” is “effectively the same as a more-probable-than-not
standard.” Chinn v. Warden, 24 F.4th 1096, 1103 (6th Cir. 2022); see LaMar v. Houk, 798 F.3d
405, 416 (6th Cir. 2015) (noting that reasonable probability is only “slight[ly]” lower than the
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
24 of 45

25
more-probable-than-not standard). Materiality is assessed by reference to “both the evidence the
defense was prevented from presenting and the evidence each side presented at trial.” 	Bies v.
Sheldon, 775 F.3d 386, 399 (6th Cir. 2014) (quoting Boss v. Pierce, 263 F.3d 734, 745 (7th Cir.
2001)). The “tendency and force of the undisclosed evidence” is assessed “item by item,” Chinn,
24 F.4th at 1103 (quoting Kyles v. Whitley, 514 U.S. 419, 436 n.10 (1995)), but its materiality is
“consider[ed] . . . collectively,” id.
Apparent Favorability. As indicated, for a police officer to be liable for a Brady violation,
the favorability of the suppressed evidence must have been “apparent” to the officer. 	In other
words, the officer must have been “aware that the evidence ‘could form a basis for exonerating the
defendant.’” D’Ambrosio v. Marino, 747 F.3d 378, 389–90 (6th Cir. 2014) (quoting Moldowan,
578 F.3d at 388 n.14).
B. Dillon Evidence
Titus argues that Defendants suppressed the following documents and information related
to Dillon: (1) the documents contained in the “Serial Killer” folder; (2) a 1993 report from the
Ohio lineup; and (3) the fact (known to Defendants but not stated in those documents) that the
Nofzs picked Dillon in the Ohio lineup.
According to Moran, the serial-killer folder contained the following documents in 2020
(Moran Decl. ¶ 4, ECF No. 130-23; see Moran Dep. 52–53):
 	An information sheet on Dillon listing his biographical data and vehicles owned. (ECF
No. 130-24, PageID.3032.)
 	Reports from interviews by Captain Shryock of the Coshocton County sheriff’s
department with two of Dillon’s co-workers, both of whom loaned Dillon their
shotguns on or about November 17, 1990. One co-worker loaned Dillon a gun with a
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
25 of 45

26
“slug barrel and a bird shot barrel.” (Id., PageID.3033.) A week later, Dillon returned
the gun with the slug shot barrel attached, saying he had shot a deer at the Ravenna
Arsenal. (Id.) Dillon did not return the bird shot barrel. (Id.) Dillon claimed his wife
had thrown that barrel away. (Id.) Another co-worker said he lent Dillon a Mossberg
Pump shotgun to use at the Ravenna Arsenal in November 1990. (Id., PageID.3035.)
Dillon returned it a few days later, claiming he had used it to kill a deer. The co-worker
later discovered Dillon had also borrowed a gun from someone else that same weekend.
(Id.)
 	A report of Shryock’s interview with the Ravenna Arsenal hunt organizer, Tim
Morgan, who told Shryock that Dillon likely did not leave the property until after noon.
(Id., PageID.3036–3037.)
 	A communication from the Ravenna Arsenal confirming that Dillon was present there
on the morning of November 17, 1990, “until sometime after 12:00 noon,” and
providing the check-in roster for the hunt that day. (Id., PageID.3042–3045.)
 	The record from the Ravenna Arsenal showing that Dillon shot a deer at 10:30 a.m. and
recorded it with officials at 11:20 a.m. (Id., PageID.3038.)6
 	The deer processing receipt from the butcher’s shop in Strasburg, Ohio, dated
November 17, 1990. (Id., PageID.3039.)
 	The Automap calculations. (Id., PageID.3040–3041.)
 	The letter from Wiersema’s friend attaching newspaper articles about Dillon and
multiple killings of outdoorsmen. (Id., PageID.3064–3066.)
6 The copy initially obtained by the Innocence Clinic is illegible. The KCSO later produced a readable copy. (See
ECF No. 130-25, PageID.3082.)
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
26 of 45

27
 	Romanak’s report on her interview with Helen Nofz in May 2002, wherein Nofz
reported participating in a lineup in Ohio and identifying someone who looked like the
driver in the ditch when Wiersema was investigating a murder suspect from Ohio. (Id.,
PageID.3046–3049.)
 	Romanak’s 	report 	on 	her 	interviews 	with 	Huffman 	in 	April/May 	2002. 	(Id.,
PageID.3050–3055.)
 	Moyer’s report on his interview with Nofz in December 1990, in which she described
the suspicious driver and the vehicle in the ditch and rated the composite sketch of the
driver. (Id., PageID.3061–3063.)
 	The sketch drawn according to Nofz’s description of the driver she saw in 1990. (Id.,
PageID.3066.)
 	A picture depicting a 1987 Dodge Shadow, the make and model of the vehicle that Nofz
said resembled the car she saw in the ditch. (Id., PageID.3068.)
Of the foregoing documents, the ones identified in italics were also located in the files of
the prosecutor’s office and were therefore disclosed to the prosecutor. 	(See KCPO File, ECF
No. 108-3; Romanak’s reports, id., PageID.2125-2126, 2136-2140; Moyer’s report and sketch, id.,
PageID.2151-2159; and the picture of the Dodge Shadow, id., PageID.2160.) 	Brady requires
police officers to turn over favorable evidence to the prosecutor. 	Moldowan, 578 F.3d at 381.
Defendants fulfilled that obligation for these documents. 	Titus offers no evidence to suggest
otherwise.
Also found in the KCSO’s records, but not in the serial-killer folder, was the 1993 report
by Coshocton County deputy sheriff Craig Casey indicating that the Nofzs picked someone from
a lineup in Ohio, accompanied by photos of the lineup and a list of names of the individuals in the
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
27 of 45

28
lineup. (See 2/9/1993 Casey Rep.) The copy of this report in the KCSO’s files was apparently
illegible. (See Wiersema Dep. 58.) The parties obtained a legible copy from the Coshocton County
sheriff’s office in 2020. (See Fax Transmittal Sheet, ECF No. 91-4, PageID.812.)
As indicated, none of the foregoing documents, including the documents in the serial-killer
folder and the 1993 report by Casey, reveal that the Nofzs picked Dillon at the 1993 lineup. That
said, there is no genuine dispute that Werkema was aware that the Nofzs picked Dillon at the Ohio
lineup. (Werkema Dep. 101.) And according to Werkema, Brown would have been aware of that
fact as well. (Id. at 164-65.)
1. Apparent Favorability
Titus argues that the Dillon evidence was favorable to him because it pointed to an
alternative suspect. 	While prosecutors (and by extension, police officers) “are not necessarily
required to disclose every stray lead and anonymous tip, . . . they must disclose the existence of
legitimate suspects.” Hughbanks, 2 F.4th at 536 (quoting Gumm v. Mitchell, 775 F.3d 345, 364
(6th Cir. 2014)) (cleaned up). 	“In determining what constitutes a legitimate suspect, [courts]
generally look to see what evidence substantiates that the suspects may have been involved in the
crime.” 	Id. (cleaned up). 	A legitimate suspect is one who has “a sufficient connection to the
details of the crime.” 	Id. at 537; see Jamison v. Collins, 291 F.3d 380, 390–91 (6th Cir. 2002)
(concluding that “enough factors” matched a second suspect to the crime that information
concerning the suspect should have been disclosed).
Here, enough factors tied Dillon to the killings at the Fulton State Game Area to render
him a legitimate suspect. First and foremost, the killings were consistent with Dillon’s apparent
pattern of behavior, which involved killing hunters in Ohio and nearby states. 	Also, Dillon’s
choice to borrow two separate shotguns for the weekend of November 17, 1990, renders his
behavior that weekend somewhat suspicious. 	Indeed, Wiersema and Van Streain’s decision to
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
28 of 45

29
take the Nofzs to Ohio for the purpose of putting them before a lineup that included Dillon
indicates that he was a legitimate suspect. See Colemon v. City of Cincinnati, No. 21-5968, 2023
WL 5095804, at *4 (6th Cir. Aug. 9, 2023) (“Because the . . . officers investigated whether the
murders in their jurisdictions were linked with Welch’s murder, the district court correctly
reasoned that any suspects developed during that period would also be considered suspects in
Welch’s murder.”). 	Also, the Nofzs’ tentative identification of Dillon (and composite sketch
resembling Dillon) lent some additional support to his viability as a suspect by potentially placing
him near the scene of the killings. Even if the Nofzs could not affirmatively state that Dillon was
the driver in the ditch, their identification would have been helpful for Titus’s case.
The evidence pointing away from Dillon does not necessarily mean he was not a legitimate
suspect. At the very least, he was a legitimate suspect at some point during the investigation. Also,
a defense attorney could have argued reasons to discount some of the evidence exculpating Dillon.
For instance, defense counsel could have argued that the driving distance from the Ravenna
Arsenal to Strasburg to Fulton made Dillon’s involvement improbable, but not necessarily
impossible. 	Or defense counsel could have argued that Wiersema and Van Streain’s failure to
probe that timing further demonstrated the absence of an adequate investigation. Cf. Gumm, 775
F.3d at 370 (noting that “reports about multiple other suspects could have been introduced at trial
to call into question the thoroughness of the investigation”).
On the other hand, the most compelling evidence Werkema or Brown would have
possessed that placed Dillon near the scene of the murders was the Nofzs’ identification of him as
someone who resembled the driver in the ditch.7 Titus would have had a difficult time relying on
7 The composite sketch also resembles some photographs of Dillon, but Helen Nofz’s tentative in-person identification
of Dillon served the same purpose as the sketch.
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
29 of 45

30
that identification because Helen Nofz also provided information excluding Dillon. She repeatedly
reported that she saw a black hatchback that did not have Ohio license plates, which does not fit
the color, model, or registration of any vehicle that Dillon owned. Titus would have been hard-
pressed to bolster the Nofzs’ tentative identification of Dillon while simultaneously discounting
Helen Nofz’s consistent identification of the license plate, color, and model of the vehicle at the
scene.
Even if Dillon was a legitimate suspect, however, the Dillon evidence was not favorable to
Titus (and would not have been apparently favorable from Defendants’ standpoint) when
considered as a whole.8 This case is similar to McNeill, in which the withheld evidence included
a police report “detailing a potential suspect who was quickly dismissed as a suspect by the police.”
McNeill, 10 F.4th at 591. That suspect was seen abandoning a vehicle near the scene of the crime
and then fleeing the area. 	Id. at 610-11. 	The Sixth Circuit concluded that the report was not
favorable to the defendant because the eyewitness who identified McNeill as the shooter
“definitively stated” to the police that the alternative suspect was not involved in the shooting. Id.
at 599. The Court reasoned that “[i]f the police have ‘substantial exculpatory evidence to conclude
that [an individual] was no longer a suspect, Brady [does] not apply.’” Id. (quoting Coe v. Bell,
161 F.3d 320, 345 n.4 (6th Cir. 1998)). 	According to that court, “[t]he quick removal of this
suspect from the investigation means that this report is not, in fact, favorable.” Id. In other words,
the police report did “not have a clear tendency to exonerate” McNeill. Id.
As in McNeill, assuming Defendants were aware of all the evidence pointing to Dillon in
the KCSO’s files, as well as the fact that the Nofzs selected Dillon at the Ohio lineup, Defendants
8 Here, the Court considers the documents in the Serial Killer file, the 1993 lineup report from Deputy Casey, and
Defendants’ knowledge that the Nofzs selected Dillon. The Court does not consider the additional FBI documents
discovered by Davis and Simpson or the Chappell affidavit detailing Dillon’s jailhouse confessions because there is
no evidence that Defendants were aware of this information in 2002.
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
30 of 45

31
had “substantial exculpatory evidence to conclude” that Dillon was not a viable suspect. 	That
exculpatory evidence included Helen Nofz’s observations of the vehicle in the ditch (which were
inconsistent with Dillon’s vehicle records), as well as documents firmly placing Dillon hundreds
of miles from the scene of the murders just a few hours before they occurred.
Also, as in McNeill, the police here investigated and eliminated Dillon as an alternative
suspect. There is no genuine dispute that Wiersema and Van Streain investigated Dillon’s potential
involvement and then eliminated him as a suspect after returning from Ohio, based on evidence
reflected in the Serial Killer folder. 	Wiersema then conveyed that conclusion to Brown, who
apparently discussed that information with the cold-case team, as Werkema recalls discussing the
elimination of Dillon as a suspect. Nothing in the record before the Court suggests Werkema or
Brown had any reason to question Wiersema’s conclusion. Applying the reasoning in McNeill,
Brady does not apply to the information about Dillon.
To be sure, there are some differences between McNeill and the case at hand, but those
differences are insignificant. 	For instance, McNeill is different because the police in that case
“quickly dismissed” the alternative suspect, whereas the police here investigated Dillon for a
period of time before concluding that he was not a viable suspect. But it does not follow that a
quick dismissal renders an alternative suspect less favorable than one dismissed after a longer
period of time. Indeed, if the police quickly dismiss an alternative suspect, it may be easier for the
defendant to argue that the police investigation was inadequate. 	By contrast, such an argument
would be less persuasive here, where the police looked into Dillon and discovered evidence that
made his involvement seem far-fetched. Nofz was unable to positively identify him, his vehicles
and their registration did not match the vehicle Nofz saw in the ditch, and he had a well-
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
31 of 45

32
documented alibi. 	Thus, the speed of the dismissal does not meaningfully distinguish McNeill
from the case at hand.
McNeill is also different because the only witness to the crime in that case “definitively
stated” that the alternative suspect was not responsible, whereas there was no eyewitness to the
Fulton murders, let alone one who “definitively” stated that Dillon was not responsible.
Nevertheless, the strength of the exculpatory evidence in McNeill is comparable to the strength of
the evidence exculpating Dillon. In McNeill, “the entirety of the State’s evidence exculpating” the
alternative suspect was the eyewitness’s statement that the alternative suspect was not the
murderer. 	McNeill, 10 F.4th at 611 (Clay, J., dissenting). 	However, the same evening that the
eyewitness ruled out the alternative suspect, the eyewitness failed to identify the alternative suspect
in a photo lineup, undermining the reliability of their exculpatory statement. Id. That witness was
unreliable for other reasons. 	He was “high on crack cocaine and had consumed a significant
amount of alcohol at the time of the murder.” Id. at 592. And he gave “inconsistent statements
regarding his prior knowledge of McNeill.” Id. 	In contrast, the evidence exculpating Dillon is
more reliable. As discussed, the same witness who tentatively connected Dillon to the scene of
the crime also observed details that ruled him out. In addition, the documents from the Ravenna
Arsenal and the butcher shop in Ohio gave Dillon a concrete alibi.
Finally, McNeill is different because the alternative suspect evidence at issue there was a
single police report that identified both the alternative suspect and the reasons for excluding that
suspect. McNeill, 10 F.4th at 599. The court held that this particular report was not favorable
evidence. Id. By contrast, there are multiple pieces of evidence at issue here, some of which point
toward Dillon as a potential culprit for the Fulton murders and some of which rule him out.
Regardless, there is no reason to think the outcome in McNeill would have been different if the
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
32 of 45

33
evidence at issue had consisted of multiple reports instead of one. While McNeill indicates that it
is “helpful to evaluate each piece of evidence individually” when determining favorability, id. at
598, it does not require the Court to evaluate each piece of evidence in a vacuum, without
considering its relationship to other evidence. Cf. id. at 599 (considering several audio recordings
as a group when determining favorability); see also Coe, 161 F.3d at 345 n.4 (“The information
on [the alternative suspect] is only exculpatory if the whole truth about [the alternative suspect]
is.”). 	Thus, the distinction between one piece of evidence and multiple pieces of evidence is
irrelevant. McNeill applies.
Other 	cases 	cited 	by 	Titus, 	such 	as 	Hughbanks, 	Jamison, 	Gumm, 	and 	Bies, 	are
distinguishable because they do not involve alternative suspects who were investigated and cleared
by the police. It is one thing for a suspect to have sufficient connections to a crime to merit police
investigation and disclosure of the suspect to the defendant. The foregoing cases readily apply to
those circumstances. 	But McNeill indicates that a different rule applies where the police have
conducted that investigation and then ruled out the suspect based on “substantial” exculpatory
information gathered about the suspect. 	Neither Hughbanks, Jamison, Gumm, nor Bies address
the latter situation.
The Court acknowledges that a rule allowing police officers to withhold evidence of an
alternative suspect based on the weight of the evidence for and against that suspect’s culpability
potentially “conflicts with the Supreme Court’s directive that the criminal trial, as distinct from
the prosecutor’s private deliberations, be preserved as the chosen forum for ascertaining the truth
about criminal accusations.” 	McNeill, 10 F.4th at 611 (Clay, J., dissenting) (quoting Clark v.
Warden, 934 F.3d 483, 492 (6th Cir. 2019)). Nevertheless, this Court is bound by McNeill and
other Sixth Circuit cases holding that Brady does not automatically apply to all evidence of
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
33 of 45

34
alternative suspects considered by the police. 	In particular, it does not apply to evidence of
alternative suspects the police have eliminated based on substantial exculpatory evidence.
Applying that precedent here, Defendants are not liable for withholding evidence or information
pertaining to Dillon.
2. Qualified Immunity – Clearly Established Law
Even if McNeill is distinguishable from this case and does not dictate the outcome on the
merits of the Brady claim, it supports a finding that Defendants are entitled to qualified immunity.
In light of McNeill and Coe, it was not clearly established in 2002 that Defendants were required
to turn over the evidence about Dillon.
Shortly before Titus’s trial in 2002 (and shortly after Brown retired), the Sixth Circuit held
that, while the government is not necessarily obligated to “turn over every last suspect considered
in the course of an investigation,” it must disclose suspects with “enough factors” tying them to
the crime. Jamison, 291 F.3d at 390-91. This holding clearly indicated that the government must
disclose some of the alternative suspects police have considered during an investigation, but the
reach of that holding was hardly clear. The court’s opinion did not articulate a clear distinction
between alternative suspects with “enough factors” tying them to the crime and those without such
factors.
More importantly, neither Jamison nor any other Sixth Circuit opinion before Titus’s trial
held that Brady applies to evidence of alternative suspects the government has investigated and
eliminated. In 2002, the only guidance on that point was Coe’s statement that Brady “would not
apply” to alternative suspect evidence where police have “substantial exculpatory evidence” to
exclude that suspect. Coe, 161 F.3d at 345 n.4. Although Coe’s statement was not binding law or
central to its holding, it nevertheless pointed to a scenario where Brady would not require the
police to disclose an alternative suspect. Jamison did not address, let alone foreclose, that scenario.
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
34 of 45

35
Indeed, McNeill later adopted Coe’s statement as part of its reasoning. 	If Jamison clearly
established that the police must disclose all alternative suspects with some connection to the crime,
including those the police have eliminated based on substantial evidence, then McNeill would have
ignored Coe’s dicta and followed the rule in Jamison. 	Cf. McNeill, 10 F.4th at 611 (Clay, J.,
dissenting) (arguing that the alternative suspect had a sufficient connection to the crime and was
therefore favorable evidence under Jamison). McNeill did not do so. Instead, it relied on the logic
proposed by Coe, just as any reasonable officer in Defendants’ position could have done when
assessing the law in 2002.
The Sixth Circuit employed similar reasoning in Siggers v. Alex, No. 22-1182, 2023 WL
5986603 (6th Cir. Sept. 12, 2023), holding that it was not clearly established in 1984 that Brady
material includes “a statement implicating someone who was cleared as a suspect of the crime,
but who might have been mistaken for a second suspect.” Id. at *5 (emphasis added). The court
agreed that “Brady fairly implies that some evidence of alternative suspects must be disclosed,”
but it disagreed that “Brady clearly established a general right as of 1984 to all evidence of
alternative suspects.” Id. at 6. Although Moldowan implied that police had a clearly established
duty to disclose some alternative suspect evidence, the court in Siggers distinguished Moldowan
because “[t]here was no evidence in Moldowan that the police investigation had eliminated any of
the undisclosed persons as suspects, as there was here with respect to the suspect, Garland.”
Siggers, 2023 WL 5986603, at *6 n.7 (emphasis added).
Notably, Siggers examined the contours of clearly established law in light of the specific
context of that case. The court did not ask whether it was clearly established that (1) the police
must disclose all material exculpatory evidence, or (2) the police must disclose all legitimate
alternative suspects. 	Instead, it “narrowed the issue to whether it was clearly established that a
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
35 of 45

36
‘statement implicating someone who was cleared as a suspect of the crime, but who might have
been mistaken for a second suspect, was Brady material’—and determined that was not clearly
established.” Buehner v. City of Cleveland, 788 F. Supp. 3d 827, 909 (N.D. Ohio 2025) (quoting
Siggers, 2023 WL 5986603, at *5-6). In other words, “qualified immunity in this specific context
appears to hinge, in part, on whether the alternate suspect was ‘cleared as a suspect of the crime.’”
Id. (quoting Siggers, 2023 WL 5986603, at *5). Thus, “if officers have investigated that alternate
suspect and cleared them as a suspect, that would fall outside clearly established law requiring
disclosure.” Id. (cleaned up). Likewise, because the police in Kalamazoo investigated Dillon and
discovered substantial evidence to clear him as a suspect, it was not clearly established in 1984
that Brady required Defendants to turn over the evidence pertaining to Dillon.
Titus’s case differs from Siggers in that the relevant date for determining clearly
established law here is 2002, not 1984. Defendants’ Brady obligations continued up to and during
Titus’s trial in 2002. 9 	But the only relevant legal opinion identified by the parties that issued
between 1984 and Titus’s trial is Jamison. As discussed, Jamison is distinguishable for the same
reason that the Sixth Circuit distinguished Moldowan: there is no indication that the police in
Jamison had eliminated the alternative suspect. 	Thus, Jamison did not clearly establish that
Defendants were required to disclose the evidence regarding Dillon, whom Wiersema had
eliminated based on substantial exculpatory evidence.
For similar reasons, Titus’s reliance on Bies and D’Ambrosio v. Bagley is misplaced. Titus
argues that these habeas cases held that the law regarding disclosure of alternative suspects was
clearly established before 2002 because the petitioners in those cases challenged convictions for
crimes committed before 2002. However, neither of those cases involved an alternative suspect
9 Brown’s obligations ceased when he retired in January 2002, a few months before Titus’s trial.
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
36 of 45

37
who was eliminated by the police. 	Moreover, neither of those opinions expressly addressed
whether the law regarding disclosure of alternative suspects was clearly established in or before
2002.
In summary, as to the Dillon evidence, Titus has not met his burden of overcoming the
defense of qualified immunity. He has not shown that Defendants violated clearly established law.
Consequently, Defendants are entitled to qualified immunity for Titus’s claim that Werkema and
Brown suppressed evidence about Dillon or suppressed the knowledge that the Nofzs selected
Dillon in the Ohio lineup.
C. Huffman Signed Statement
The other piece of evidence purportedly withheld by Brown and Werkema is the signed
statement that Wiersema claims he took from Huffman when he interviewed her in 1990, wherein
she claimed she saw Titus at her parents’ house between 8:00 p.m. and 9:00 p.m. That statement
was consistent with her mother’s account, but it contradicted Huffman’s later statements to the
police in 2002 and at Titus’s trial. She told Romanak in May 2002 that she saw Titus between
6:15 p.m. and 6:30 p.m., and she testified at trial that she saw Titus between 5:15 p.m. and 6:00
p.m.
1. Favorability
The signed statement would have been favorable to Titus because it would have impeached
the only eyewitness testimony placing Titus near the Fulton State Game Area close to the time that
Bennett and Estes were killed. See Smith v. Cain, 565 U.S. 73, 76 (2012) (evidence impeaching
key witness was material under Brady).
2. Apparent Favorability
Defendants argue there is no evidence that they were aware of the written Huffman
statement, as there is no evidence of its existence apart from Wiersema’s recent deposition
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
37 of 45

38
testimony. 	Werkema does not recall seeing such a statement (Werkema Dep. 64), and Cinabro
notes that Wiersema previously testified that such a statement did not exist. 	At an evidentiary
hearing in 2015, Wiersema testified that he did not take a written statement from Huffman.
(3/27/2015 Evid. Hr’g Tr. 41-43, ECF No. 75-5.)
However, Wiersema’s more recent testimony is sufficient to create a factual dispute about
these issues. He testified that he took this statement and that it would have been placed into the
main investigative file held by the KCSO. 	(Wiersema Dep. 172-73.) 	As discussed above, the
KCSO later provided the main investigative file to the cold-case team. Consequently, a jury could
infer that Werkema and Brown received that statement. In other words, construing the foregoing
evidence in the light most favorable to Titus, a reasonable jury could find that the written statement
existed and that Werkema and Brown were aware of it. See Elkins v. Summit County, 615 F.3d
671, 675 (6th Cir. 2010) (finding officers could have been aware of a memorandum where they
did not contest its creation and, if mailed, they would have received it according to the
department’s usual practices); Gillispie v. City of Miami Township, No. 3:13-cv-416, 2020 WL
5629677 (S.D. Ohio Sept. 21, 2020) (finding officer could have been aware of police reports with
exculpatory value where other officers testified to their existence and contents, and according to
custom and procedure, those reports would have been part of the case file).
Although Wiersema’s testimony has changed over time, the Court cannot disregard his
more recent testimony by pointing to his prior inconsistent statements. At the summary judgment
stage, the Court cannot weigh the strength of Wiersema’s testimony or evaluate his credibility.
Instead, the Court must construe his conflicting statements in Titus’s favor before granting
summary judgment to Defendants, and in Defendants’ favor before granting summary judgment
to Titus. Because of those conflicting statements, there is a genuine factual dispute about whether
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
38 of 45

39
the written statement existed and whether Werkema or Brown were aware of it. 	Thus, neither
party is entitled to summary judgment on those issues.
Construing the evidence in Titus’s favor, if the statement existed and if Werkema and
Brown were aware of it, a reasonable jury could also conclude that Werkema was aware of its
exculpatory value as impeachment evidence. 	A jury could conclude that Werkema would have
known about Huffman’s interview with Romanak in April or May 2002, in which Huffman
asserted that she saw Titus between 6:15 p.m. and 6:30 p.m. (5/1/2002 Romanak Rep.,
PageID.3052.) Based on this report, Werkema would have known before trial that Huffman placed
Titus at the scene closer in time than any other eyewitness, contrary to her written statement and
contrary to Titus’s alibi, making the impeachment value of her written statement apparent.
However, Brown retired before Huffman’s interview with Romanak. There is no evidence
he would have known that she had changed her story about the timing of Titus’s arrival. Thus, the
impeachment value of the written statement would not have been apparent to him. 	The Court
cannot discern any other exculpatory value of that statement that would have been apparent to
Brown before his retirement in January 2002. 	A written statement placing Titus at Huffman’s
parents’ home at 8:00 p.m. (several hours after the murders occurred) does not tend to exculpate
Titus on its own. Indeed, it is consistent with the prosecution’s theory that Titus killed Estes and
Bennett between 4:30 p.m. and 5:30 p.m. when Titus and Driskell were separated from one
another, and that Titus then rejoined Driskell in Battle Creek by 6:00 p.m. before returning home
at around 7:00 p.m. Accordingly, Brown is entitled to summary judgment on this issue, but not
Werkema.
3. Suppression
As discussed above, evidence is suppressed from the defense if not made available to it
and the evidence is wholly within the control of the government. 	“There is no Brady violation
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
39 of 45

40
‘where a defendant knew or should have known the essential facts permitting him to take
advantage of any exculpatory information, or where the evidence is available . . . from another
source,’ because in such cases there is really nothing for the government to disclose.” Coe, 161
F.3d at 344 (quoting United States v. Clark, 928 F.2d 733, 738 (6th Cir. 1991) (cleaned up)).
Defendants suggest that they are not liable for withholding a statement from Huffman
because Titus’s counsel could have interviewed Huffman. 	However, nothing in the materials
turned over to Titus’s counsel hinted at the existence of a written statement by Huffman that she
saw Titus between 8:00 p.m. and 9:00 p.m. on the night of the murders. Wiersema’s report from
1990 does not indicate that he asked her about seeing Titus that night, let alone that he took a
written statement from her attesting to the timing of Titus’s arrival. 	Moreover, interviewing
Huffman in 2002 would not have produced a written statement from years earlier. 	Thus, the
written statement was not available from another source and Titus did not possess the essential
facts permitting him to take advantage of it. 	Thus, Defendants are not entitled to summary
judgment on the suppression prong.
4. Materiality
The written statement would have impeached Huffman’s trial testimony more strongly than
Burnworth’s testimony or than Huffman’s statements to Romanak. 	The greater impeachment
value of a signed statement arguably distinguishes this case from those in which the impeachment
evidence was not material because it was merely cumulative of other inconsistent statements by a
prosecution witness. See, e.g., Montgomery v. Bobby, 654 F.3d 668, 681–82 (6th Cir. 2011) (en
banc).
On the other hand, the Court must assess the materiality of evidence by looking at the entire
trial record, see Bies, 775 F.3d at 399, which the parties have not provided. And nowhere do the
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
40 of 45

41
parties attempt to assess how Huffman’s statement would have impacted the outcome of Titus’s
trial in light of the entire record. Summary judgment is therefore denied on the materiality prong.
5. Defendants’ Culpability
Defendants further argue that some level of culpability greater than negligence or simple
possession of exculpatory information is necessary to hold them liable, such as intentional
concealment, bad faith, or deliberate indifference. 	(Cinabro Renewed Summ. J. Br. 22, ECF
No. 133; Werkema Summ. J. Br. 29-30, ECF No. 108-1.) They are partially correct. The level of
culpability necessary to find Defendants liable is awareness that the evidence withheld “could form
a basis for exonerating the defendant.” Marino, 747 F.3d at 398 (quoting Moldowan, 578 F.3d at
388 n.14). In other words, the evidence’s exculpatory value must have been “apparent” to them.
Id.
Defendants are wrong to suggest that something more is necessary, such as intentional
concealment or bad faith. 	Moldowan squarely held that police officers can be liable for
withholding Brady material even if they do not act with an improper motive. Moldowan, 578 F.3d
at 378. “[T]he critical issue . . . is the nature of the evidence that was withheld[,] . . . not the mental
state of the government official who suppressed the evidence.” 	Id. at 384. 	Bad faith may be
relevant if police officers withhold evidence that was only “potentially useful,” and its exculpatory
value was not apparent. See United States v. Mooney, 135 F.4th 486, 498 (6th Cir. 2025) (quoting
Arizona v. Youngblood, 488 U.S. 51, 58 (1988)). 	In such cases, the officers’ bad faith conduct
“indicate[s] that the evidence could form a basis for exonerating the defendant.” Youngblood, 488
U.S. at 58. But the Sixth Circuit has repeatedly “rejected the proposition that an officer’s Brady
violation requires ‘bad faith.’” 	Salter v. City of Detroit, 133 F.4th 527, 536 (6th Cir. 2025)
(emphasis added) (quoting Clark, 130 F.4th at 579). Thus, Titus is not required to show bad faith
or intentional concealment by Defendants.
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
41 of 45

42
Along similar lines, Werkema argues that government officials can only be liable for a
constitutional violation based on their own misconduct, not the misconduct of others. See Gibson
v. Matthews, 926 F.2d 532, 534–35 (6th Cir. 1991). He is correct, but nothing about that principle
requires that the official have a particular state of mind to be liable for a Brady violation. 	See
Daniels v. Williams, 474 U.S. 327, 329-30 (1986) (“[Section] 1983, unlike its criminal counterpart,
18 U.S.C. § 242, contains no state-of-mind requirement independent of that necessary to state a
violation of the underlying constitutional right.”). Here, the necessary state of mind is awareness
of the evidence and of its exculpatory value. Bad faith is not necessary.
In addition, no authority supports Defendants’ argument that they are not liable for
suppressing a statement created by Wiersema. 	They suggest it is Wiersema’s fault for not
disclosing that statement to the prosecutor. However, officer liability for a Brady violation does
not depend upon where the evidence or information originates. Under Moldowan, the officer is
liable if he was aware of and suppressed material, favorable evidence that was not already
disclosed to the prosecutor.
6. Hearsay
Defendants object that Wiersema’s testimony about the contents of the Huffman statement
is inadmissible hearsay. To the contrary, hearsay is an out-of-court statement “offered in evidence
to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). Titus does not offer Wiersema’s
testimony to prove that Huffman saw Titus arrive at her parents’ house between 8:00 p.m. and
9:00 p.m. on the night of the murders. Instead, he offers it to prove that Huffman made a statement
that was inconsistent with her trial testimony, in order to impeach her credibility. When offered
for that purpose, the hearsay rules do not apply.
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
42 of 45

43
7. Qualified Immunity
Defendants apparently argue they are entitled to qualified immunity with regard to the
Huffman statement because the law was not clearly established that they were required to disclose
evidence that they did not personally generate or solely possess. 	Brady does not apply to
information available to the criminal defendant from other sources, but there is no genuine dispute
that, if the Huffman statement existed, it was not available to Titus except through the police who
were investigating his case. 	However, Defendants imply that they are entitled to qualified
immunity if other police officers possessed the same information and did not disclose it to the
prosecutor. If that is their argument, they are mistaken.
As an initial matter, it was clearly established in 2002 that a prosecutor’s Brady obligations
extended to impeachment evidence. See Strickler, 527 U.S. at 282 n.21 (“Our cases make clear
that Brady’s disclosure requirements extend to materials that, whatever their other characteristics,
may be used to impeach a witness.”). And according to Moldowan, it was clearly established as
early as 1990 that police officers must comply with Brady by turning over potentially exculpatory
evidence to the prosecutor’s office. 	Moldowan, 578 F.3d at 381-82. 	Moldowan described that
obligation as an “unwavering constitutional duty to preserve and ultimately disclose” material,
exculpatory evidence, where its exculpatory value is apparent to the officer. Id. at 388 (emphasis
in original).
Nothing in the Sixth Circuit’s formulation of a police officer’s Brady obligation, or the
Supreme Court’s formulation as applied to prosecutors, limits its scope to materials generated or
solely possessed by that particular officer. To the contrary, the Supreme Court has long described
Brady as imposing an “affirmative duty to disclose evidence favorable to a defendant.” Kyles, 514
U.S. at 432. In 1999, it stated that this affirmative duty “encompasses evidence ‘known only to
police investigators and not to the prosecutor.’” 	Strickler, 527 U.S. at 281 (quoting Kyles, 514
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
43 of 45

44
U.S. at 438) (emphasis added). 	While the Supreme Court has not spoken to a police officer’s
liability for failing to disclose Brady materials, it clearly indicated before 2002 that Brady
generally encompasses information known to police officers.
Similarly, when concluding that clearly established law extended Brady’s disclosure
obligations to police officers, the Sixth Circuit cited precedent from other circuits before 2002
holding that “a police officer sometimes may be liable if he fails to apprise the prosecutor or a
judicial officer of known exculpatory information.” Moldowan, 578 F.3d at 381 (emphasis added)
(quoting Brady v. Dill, 187 F.3d 104, 114 (1st Cir. 1999)). And a few months before Titus’s trial,
the Sixth Circuit indicated that Brady “extends to information in the possession of the law
enforcement agency investigating the offense.” Jamison, 291 F.3d at 385. In short, it was clearly
established by 2002 that Werkema and Brown had a duty to disclose favorable evidence known to
them, whether or not they personally generated that information or other officers also possessed
it. Thus, they are not entitled to qualified immunity on this basis.
IV. CONCLUSION
In summary, Defendants are entitled to summary judgment for Titus’s claim that Werkema
and Brown withheld evidence and information regarding Dillon as an alternative suspect.
Defendants are not liable because the favorability of that evidence and information would not have
been apparent in light of the substantial evidence excluding Dillon as a plausible suspect.
Moreover, Defendants are entitled to qualified immunity for this claim because Titus has not
shown that clearly established law required Werkema or Brown to turn over such evidence or
information to the prosecutor.
In addition, Cinabro is entitled to summary judgment for Titus’s claim that Brown withheld
Huffman’s written statement claiming that she saw Titus arrive at her parents’ house between 8:00
p.m. and 9:00 p.m. on the night of the murders. Even if the statement existed, its exculpatory value
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
44 of 45

45
would not have been apparent to Brown before he retired. Consequently, the Court will dismiss
Cinabro as a defendant.
But neither Titus nor Werkema is entitled to summary judgment for Titus’s claim that
Werkema withheld Huffman’s written statement. 	The evidence in the record creates a genuine
factual dispute as to whether that statement existed and whether Werkema was aware of it. 	If
Werkema was aware of it, a jury could conclude that its exculpatory value as impeachment
evidence would have been apparent to him. 	The parties have not adequately briefed or
demonstrated whether that statement is material, i.e., whether Titus’s use of that statement during
his trial could have had an outcome on the verdict, so the Court cannot decide that issue. Moreover,
construing the available evidence in Titus’s favor, Werkema is not entitled to qualified immunity
for this claim.
The Court will enter an order consistent with this Opinion.
Dated: November 20, 2025 	/s/ Hala Y. Jarbou
HALA Y. JARBOU
CHIEF UNITED STATES DISTRICT JUDGE
Case 1:23-cv-00997-HYJ-SJB ECF No. 165, PageID.<pageID> Filed 11/20/25 Page
45 of 45