Memphis police did not disregard accepted law enforcement standards in investigating a 2021 rape allegedly committed by accused murderer Cleotha Henderson, the City of Memphis says in a new court filing.
In their first material response to a negligence lawsuit filed by rape victim Alicia Franklin, attorneys for the city deny or object to several of the suit’s central allegations.
Those allegations include a claim that if police had properly investigated Franklin’s Sept. 21, 2021, rape and had arrested Henderson then, that the abduction and murder of jogger Eliza Fletcher earlier this year could have been avoided.
“The City objects … because it calls for pure speculation,’’ says the 25-page document filed Monday, Dec. 26, in Shelby County Circuit Court.
The objections follow a motion from the city in early December stating that any contention that Fletcher’s slaying could have been avoided by a more thorough investigation of Franklin’s 2021 rape is “immaterial, impertinent and scandalous.”
But the new filing, known in legal parlance as an answer to the plaintiff’s request for admissions, raises yet another round of questions for Franklin’s attorney, Gary K. Smith.
In it, the city admits that police didn’t dust for fingerprints at the Franklin crime scene nor question Henderson, who also goes by the last name Abston, who has been charged with both Franklin’s rape and Fletcher’s murder.
Henderson, now 39, wasn’t charged with Franklin’s rape until Sept. 8, 2022 — nearly a year after Franklin says the crime occurred — when DNA test results finally returned from a state crime lab. By then, Fletcher had been abducted while jogging near the University of Memphis. Her body was later found behind an abandoned home in South Memphis.
“They say (police) tried to contact (Henderson) in October 2021, but never did over the course of a year,’’ Smith said. “Then that leads to a whole series of questions to be asked in depositions. Well, when did you try to contact him? How many times did you try to contact him? When did you drop the ball? I mean, good Lord, it covered a year.’’
In its answers filed Tuesday, Dec. 27, the city said it tried but failed to question Henderson, who also uses the last name Abston.
“The City admits that it did not seek to interrogate Cleotha Abston in September 2021, although it did in October 2021,’’ the response says without providing any further detail.
Despite trying unsuccessfully to question Henderson that October, the city admitted in its filing that “MPD did not interrogate Cleotha Abston from September 21, 2021, until September 3, 2022,” when Henderson was arrested for Fletcher’s Sept. 2 murder.
In Tuesday’s filing, the city also admits that the Memphis Police Department didn’t request expedited DNA testing.
But the city provides a more qualified series of responses to another central claim in Franklin’s suit: That detectives showed her an old photograph of Henderson in a photo lineup that she couldn’t identify with 100% certainty. According to Franklin’s suit, officers promised to obtain and show her a newer photo but never did.
The city contests that claim.
“MPD conducted a photo lineup on Oct. 5, 2021 … and the City admits that the Photo Lineup included a photo of Cleotha Abston,’’ says the response by Tannera George Gibson and Jonathan P. Lakey, attorneys with the Burch, Porter & Johnson law firm who are representing the city in defending against Franklin’s suit.
The city says the photo was provided by the Tennessee Driver Services Division, but that “MPD did not know the date of the photograph.’’
Later in the response, the city says:
“Plaintiff (Franklin) stated in writing that she was unable to make a positive identification…. The City denies that MPD officers said they would get a more recent photo of Cleotha Abston in the Photo Lineup.”
After Franklin failed to make a positive identification, “MPD did not conduct a second (lineup) with a different or ‘more recent’ photo for the lineup,’’ the city’s attorneys said.
For Franklin, MPD’s handling of the photo lineup was a major failing.
“They didn’t care,’’ Franklin, 22, told the Institute for Public Service Reporting and The Daily Memphian in an interview in September.
She said she called police back several times, seeking updates on her case and whether police had obtained an updated photo.
“I called back again like maybe four months later, and … they was like, ‘Well, just keep in mind that it can take anywhere from a year or two to process a rape kit.’ So at that point, I gave up,” Franklin said.
Another focal point of contention involves any efforts to interrogate Henderson (aka Abston). Franklin contends in her suit that “MPD failed to bring Abston in for questioning.’’
Asked to “admit that MPD did not interrogate Cleotha Abston-Henderson prior to the murder of Eliza Fletcher,’’ the city responded: “…The City admits that MPD did not interrogate Cleotha Abston from September 21, 2021, until September 3, 2022,’’ when Henderson was arrested for Fletcher’s Sept. 2 murder.
On other key points of contention, the city:
- Admitted that Franklin gave officers Henderson’s phone number, but denied that she ever gave them his last name. Instead, the city said Franklin identified Henderson only as “CJ.”
- Admitted that “MPD determined not to have Crime Scene dust for potential fingerprints,’’ but said Franklin played a role in a failure to collect fingerprints from her cell phone, which she said Henderson had handled. “MPD collected Plaintiff’s phone at Regional One Hospital to determine if it should and/or could be processed for fingerprints,’’ the city’s attorneys wrote, “but that Plaintiff told MPD while still at the (Rape Crisis Center) that she wanted her phone back.’’
- Denied that there was sufficient evidence to arrest Henderson, at least in the early stage of the investigation.
In response to this request from the plaintiff — “Admit that MPD did not comply with appropriate police investigation standards in investigating the rape of Alicia Franklin’’ — the city answered: “Denied.’’
Asked to “admit that MPD had sufficient evidence in September 2021 to arrest Cleotha Abston-Henderson for the rape of Alicia Franklin,’’ the city answered: “Denied.”
In defending against Franklin’s suit, the city is relying on legal precedent that grants police discretion in deciding how to investigate a case. In a motion filed Dec. 6 asking Circuit Court Judge Mary L. Wagner to dismiss Franklin’s suit, the city contends police had no duty to investigate her allegations to the extent she believed was necessary.
The Dec. 6 motion also seeks to strike references to Fletcher’s murder and delays in testing rape kits from the suit, contending that contentions that her slaying could have been avoided by a more thorough investigation of Franklin’s 2021 rape are “immaterial, impertinent and scandalous.”
In its answers filed Tuesday, the city repeatedly objected to questions linking the Franklin rape and Fletcher murder cases.
“The City objects … because it is immaterial to this litigation and not reasonably related to any viable claim or defense at issue in this litigation,’’ the city’s attorneys wrote.
Franklin’s attorney, Smith, disagrees.
“It has everything to do with the Alicia Franklin case,’’ Smith said. “Alicia Franklin is tormented with guilt that she did not push the police harder to do their job. It is part of her damages in this case. It’s a shame that the city does not share in the guilt that she feels.”