Beaman v. Souk et al
Filing
136
ORDER & OPINION entered by Judge Joe Billy McDade on 1/2/2014: IT IS ORDERED that Defendants' Motion for Summary Judgment 109 is GRANTED. Counts I, II, and III, are DISMISSED WITH PREJUDICE. Counts IV, V, VI, VII, and VIII are DISMISSED WITHOUT PREJUDICE. Further, the other Motion for Summary Judgment 97 , filed by Defendants John Brown and McLean County, Illinois, is DENIED AS MOOT. CASE TERMINATED. (SEE FULL WRITTEN ORDER)(JRK, ilcd)
E-FILED
Friday, 03 January, 2014 09:02:30 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
ALAN BEAMAN,
)
)
Plaintiff,
)
)
v.
)
)
JAMES SOUK, CHARLES REYNARD, )
TIM FREESMEYER, ROB
)
HOSPELHORN, DAVE WARNER, JOHN )
BROWN, FRANK ZAYAS, MCLEAN
)
)
COUNTY ILLINOIS, and TOWN OF
)
NORMAL ILLINOIS,
)
Defendants.
)
Case No. 10-cv-1019
ORDER & OPINION
This matter is before the Court on the Motion for Summary Judgment (Doc.
109), filed by Defendants Tim Freesmeyer, Dave Warner, Frank Zayas, and Town of
Normal, Illinois.1 Plaintiff has filed a Response (Doc. 127), and Defendants filed a
Reply (Doc. 134). For the reasons stated below, Defendants’ Motion is granted.
PROCEDURAL HISTORY
Plaintiff filed a Complaint on January 26, 2010, containing allegations of
various legal wrongs in connection with Plaintiff’s recently-overturned 1995
conviction for the murder of Jennifer Lockmiller. Plaintiff raised both federal and
state law claims against prosecutors, police officers, and two municipalities for their
Defendant Rob Hospelhorn was also named as a filer, but he has since been
dismissed as a defendant. (Docket entries dated Aug. 27, 2013). Additionally, there
is a pending Motion for Summary Judgment (Doc. 97) filed by Defendants John
Brown and McLean County, Illinois, but these defendants have also been dismissed.
Thus, that Motion is moot.
1
roles in the investigation and prosecution. Defendants’ initial Motions to Dismiss
were granted in part and denied in part. (Doc. 48). Count I, a claim under 42 U.S.C.
§ 1983 for failure to disclose exculpatory information, was dismissed as to
Defendants Souk and Reynard on the basis of immunity, and the Court limited this
count as to other Defendants in that Plaintiff could not claim that evidence of
certain “bypass route” time trials, discussed in more detail below, was exculpatory
evidence whose nondisclosure violated his rights. (Doc. 48 at 30). Plaintiff’s
respondeat superior claim against McLean County was also dismissed. (Doc. 48 at
30). The Court also dismissed other claims, but without prejudice, and Plaintiff was
granted leave to file an amended complaint. (Doc. 48 at 30-31). Plaintiff then filed
his Amended Complaint (Doc. 50), and Defendants’ second Motion to Dismiss was
denied. (Doc. 68). However, two additional counts were dismissed as to Defendants
Souk and Reynard, and the Court ordered Plaintiff to file a Second Amended
Complaint to remove previously dismissed claims for clarity. (Doc. 68 at 30).
Subsequently, Defendants Souk and Reynard were dismissed entirely from
the case pursuant to an agreed motion. (Docket entries dated July 12, 2013).
Defendants John Brown, Rob Hospelhorn, and McLean County, Illinois, were also
dismissed pursuant to a voluntary dismissal. (Docket entries dated Aug. 27, 2013).
Thus, only police officers Tim Freesmeyer, Dave Warner, and Frank Zayas, as well
as their employer, the Town of Normal, Illinois, remain as Defendants in this case.2
The operative pleading, the Second Amended Complaint (Doc. 69), raises
eight claims. Count I is a claim brought pursuant to 42 U.S.C. § 1983 that
As such, all future references to “Defendants” refer to only these remaining
Defendants unless otherwise noted.
2
2
Defendants violated Plaintiff’s constitutional rights by withholding exculpatory
information from him, in violation of Brady v. Maryland, 373 U.S. 83 (1963). Count
II is a conspiracy claim, alleging that Defendants and others conspired to conceal
the information, and Count III alleges liability for failure to intervene to correct
these constitutional violations. Count IV is a state law malicious prosecution claim,
Count V alleges a state law civil conspiracy claim, and Count VI states a claim for
intentional infliction of emotional distress under state law. Each of these six claims
is stated against the three remaining individual Defendants, Freesmeyer, Warner,
and Zayas. Against the Town of Normal, Plaintiff alleges respondeat superior
liability in Count VII, and state law indemnification of the officers’ liability in
Count VIII.
SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted where “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). In ruling on a motion for summary
judgment, the Court must view the evidence in the light most favorable to the nonmoving party. SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365,
368 (7th Cir. 2009). All inferences drawn from the facts must be construed in favor
of the non-movant. Moore v. Vital Prods., Inc., 641 F.3d 253, 256 (7th Cir. 2011).
To survive summary judgment, the “nonmovant must show through specific
evidence that a triable issue of fact remains on issues on which he bears the burden
of proof at trial.” Warsco v. Preferred Technical Grp., 258 F.3d 557, 563 (7th Cir.
2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). If the evidence on
3
record could not lead a reasonable jury to find for the non-movant, then no genuine
issue of material fact exists and the movant is entitled to judgment as a matter of
law. See McClendon v. Ind. Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997). At the
summary judgment stage, the court may not resolve issues of fact; disputed
material facts must be left for resolution at trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986).
FACTUAL BACKGROUND3
Jennifer Lockmiller was found dead in her apartment in Normal, Illinois, on
August 28, 1993. Lockmiller had been strangled with an alarm clock cord and
stabbed in the chest with scissors. Strangulation was determined to be the cause of
death. She and Plaintiff Alan Beaman had both been students at Illinois State
University, and had been romantically involved in the past. After an investigation,
Plaintiff was arrested and charged with murder. Plaintiff was convicted of this
high-profile murder on April 1, 1995.
After his conviction, Plaintiff was sentenced to fifty years in prison. However,
in 2008, the Illinois Supreme Court vacated Plaintiff’s conviction on the basis of due
process violations under Brady, because evidence concerning an alternative suspect,
identified only as John Doe in the opinion but now identified as Larbi John Murray,
was not disclosed to Plaintiff. People v. Beaman, 890 N.E.2d 500 (Ill. 2008).
Recently, on April 29, 2013, the Circuit Court for the Eleventh Judicial District in
Unless otherwise indicated, these background facts reflect the Court’s
determination of the undisputed facts, and are drawn from the parties’ statements
of facts filed regarding the Motion for Summary Judgment. (Docs. 111, 127, 133).
“Disputes” that facts are mischaracterized or out of context are not genuine
disputes. All genuine factual disputes and reasonable inferences are taken in
Plaintiff’s favor, as noted above.
3
4
Bloomington, Illinois awarded Plaintiff a Certificate of Innocence under a state law
provision. Plaintiff now raises claims against certain individuals involved in the
investigation and prosecution, alleging violations of his constitutional rights and
state tort law.
Investigation Team
The primary investigators of the Lockmiller murder were officers of the Town
of Normal Police Department (NPD), particularly those officers involved in the
Criminal Investigations Division (CID).
Defendant Tim Freesmeyer was a detective in the CID during the
investigation. He was the principal detective initially responsible for investigating
Plaintiff. As early as October or November 1993, he took on a leadership role with
the murder investigation, and eventually was the principal investigator for the
entire case.
Defendant Dave Warner of the NPD worked as an evidence custodian during
the investigation. This entailed preparing paperwork and taking evidence to and
from the lab. He was also responsible for investigating one of the other suspects
that was initially considered, Stacey “Bubba” Gates.
Defendant Frank Zayas was the lieutenant in charge of the CID during the
investigation, until his retirement in November 1994.4 In this role, he supervised
the detectives working on the case. One of his duties was ensuring the State’s
Confusingly, there is a dispute about whether or not Zayas was in this role for this
entire period. Defendants claim he was reassigned away from the CID between
February and June 1994, but Plaintiff asserts he was not. (Doc. 127 at 80). This
discrepancy does not appear to be material, however, as whether or not he was in
charge of the CID, there is no dispute that he was involved with certain aspects of
the investigation during that time.
4
5
Attorneys’ Office (SAO) received investigatory documents. He typically fulfilled this
duty by giving documents to the NPD records section to be placed in the central file,
and the records section would then send a copy to the SAO. This included
documents such as police reports, polygraph reports, interview transcripts, and
working files.
Tony Daniels, not a party to this lawsuit, was also a detective in the CID
during the investigation, taking over as head of the CID after Zayas retired in
November 1994. Daniels was initially the principal investigator for the murder, but
he was removed and replaced by Freesmeyer as early as October or November 1993.
Rob Hospelhorn, who has been dismissed as a Defendant, worked as a detective in
the CID with Freesmeyer for a short time during the investigation. He was not
involved in the investigation after early October 1993.
Charles Reynard was the elected State’s Attorney for McLean County at the
time of the investigation and prosecution. James Souk was the Chief of the Felony
Division in the SAO and was the lead prosecutor of Plaintiff’s criminal case. John
Brown was an employee of McLean County and assisted the SAO with the
investigation.
Investigative Process
The investigators collaborated in their efforts, and met periodically to discuss
the investigation. Reports show at least nine investigators’ meetings were held
during the course of the investigation, the purpose of which, according to officers,
was to share information and assignments and discuss progress. Additionally, most
of the detectives worked in cubicles, which allowed for communication and
6
information sharing. Officers were required to read reports from other officers to
stay informed of the investigation.
Prosecutor Souk attended at least five of the investigators’ meetings,
including a four-and-a-half hour meeting the day after the body was found. There
was “constant contact” between the investigators and prosecutors, with a “high level
of collaboration,” and Freesmeyer and Souk consulted frequently prior to charging
Plaintiff with the murder. (Doc. 133 at 52). Further, the State’s Attorneys provided
feedback on police reports. As described by Defendant Freesmeyer in deposition
testimony, Souk had authority over the investigation, even though not in an official
hierarchy.
Under normal procedure, detectives gave reports to Zayas, who would review
them and give a copy to the Police Chief, a copy to the records section, and a copy
would then be sent to the SAO. Witness interview transcripts were also generally
given to Zayas and then distributed.
Early Investigation
In the days immediately after Lockmiller’s body was found, investigators
conducted multiple interviews of people who might have information about the
murder. Investigators determined Lockmiller had likely died on August 25, 1993, so
investigators focused on that day.
Plaintiff was identified as a person of interest very early in the investigation.
Although other individuals were investigated as possible suspects, Plaintiff
emphasizes Freesmeyer’s deposition testimony that Plaintiff became the prime
suspect immediately, and Souk’s testimony that he was the only suspect already on
7
the first day of the investigation. He and Lockmiller had previously had a romantic
relationship, which ended about a month before the murder.
Plaintiff was interviewed by Daniels and Hospelhorn on the night of August
28, 1993, hours after Lockmiller’s body was found. When asked about his
whereabouts on August 25, he told them he had gotten home from work at 9 A.M.
and went straight to bed. At the time, he was staying with his parents in Rockford,
Illinois. It was discovered some time later that Plaintiff had been at Bell Federal
Savings and Loan in Rockford at 10:11
A.M.
on August 25, as confirmed by a
videotape from the bank. During a later interrogation by Freesmeyer, when asked
about his activities the week of the murder, Plaintiff started by recounting his
activities on August 25. Plaintiff testified that he did that because his activities that
day, an ice cream social and music rehearsal at his church and seeing a friend,
stuck out in his mind. (Doc. 127 at 123).
One of the other individuals questioned by investigators was Lockmiller’s
neighbor, David Singley, who could hear through the walls to Lockmiller’s
apartment. He gave information to the police stating that after he came home from
class at about 2 P.M. on August 25, he heard Lockmiller’s door slammed shut, and
then heard it open and close again five to ten minutes later. He told police he heard
the stereo on inside Lockmiller’s apartment the second time the door was open, and
heard footsteps going downstairs and outside. He also told police that at about 4:30
P.M.,
he heard that the television had been turned on and the stereo turned off, and
that the air conditioning was on by 5:15 P.M., though it had been off at 2 P.M.
8
Officers also spoke with Lockmiller’s friends, including Morgan Keefe, who
had found Lockmiller’s body. Keefe gave information about some of Lockmiller’s
romantic partners, as well as some men she had met recently while out with
friends. She told police about Plaintiff, including that he had previously broken
down Lockmiller’s door, and had threatened suicide if they broke up.
Alternative Suspects
The other individuals that NPD officers investigated as possible suspects
include Stacey “Bubba” Gates, Michael Swaine, Rob Curtis, and Larbi John Murray.
Lockmiller and Stacey “Bubba” Gates had been romantically involved
between January 1991 and July 1993, when Lockmiller ended the relationship. He
and Lockmiller had made plans to meet up the weekend of August 28, 1993, and
Gates had believed they would be getting back together then, but he was worried
she might back out.
Defendant Warner took a statement from Gates early in the investigation,
and requested a polygraph. The polygraph of Gates was completed on September 8,
1993. Gates denied involvement with the murder, but the examiner reported the
answers were “doubtful” or “inconclusive.” (Doc. 133 at 38-39). Warner requested
the polygraph report from the State Police Crime Lab, but there is a dispute as to
what happened with it after that point. Warner testified he has no recollection of
receiving it, but also has no reason to doubt that he did. As noted above, under
standard procedure, Warner would have submitted the polygraph report to Zayas,
who would have given it to the records section, and from there it would have been
sent to the SAO. Warner testified that he believed the Crime Lab would have also
9
sent it directly to the SAO. However, Souk testified he never received the report
(See Doc. 127 at 91).
Gates’s alibi was that he was teaching at a school in Peoria on the day of the
murder. The principal at the school where Gates worked, using a daily attendance
sheet for recollection, told police that Gates was working from 8 A.M. to 4 P.M. that
day. Defendants assert Gates was cleared as a suspect after his alibi was confirmed.
Plaintiff disputes that Gates was ever fully eliminated as a suspect. (Doc. 127 at
91).
Michael Swaine, Plaintiff’s roommate, also had a sexual relationship with
Lockmiller beginning in June 1993 and continuing until her death. Initially,
Freesmeyer was responsible for investigating Swaine as a suspect. He was cleared
as a suspect because of his polygraph results and confirmation of his alibi early in
the investigation. Thereafter, Swaine began to help Freesmeyer, recording
conversations he had with Plaintiff.
A man named Rob Curtis was also investigated by police at some point in the
investigation. He had attempted to date Lockmiller, but she had stood him up.
Curtis also had a criminal history of torturing and killing cats. This criminal history
was eventually found in some investigation files, but there is dispute as to how it
got there, and Defendants deny ever having possessed it.
Larbi John Murray
The most notable alternative suspect was Larbi John Murray. He and
Lockmiller had an on-again, off-again sexual relationship. Murray, who was a drug
dealer with some connection to a major dealer in Chicago, also sold drugs to
10
Lockmiller. At the time of her death, she owed Murray money for some marijuana
he had sold her, approximately twenty dollars according to Murray. At the time of
the murder, he lived in Bloomington, about 1.5 miles from Lockmiller’s apartment.
Murray was interrogated by Officers Daniels and Hospelhorn on two
occasions. During the first interview, on September 2, 1993, Murray told them he
had spoken with Lockmiller and Swaine in a parking lot sometime between August
19 and 23, 1993, and that after that he visited Lockmiller’s apartment, which was
the last time he had seen her alive. He believed he left Bloomington, Illinois, for
Byron, Illinois, on August 24 at 3
P.M.
and had not returned to town until
September 1. Murray also told them that Lockmiller still wanted to date him, and
that she had told him she had been afraid to break up with Plaintiff.
A police interview a few days later with Murray’s live-in girlfriend, Debbie
Mackoway, yielded somewhat conflicting information. Mackoway told them she had
been with Murray on August 25 from 2 P.M., when she got home from work, until
4:20 P.M., and thus he could not have left town until after that time. She confirmed
that Murray had returned to town on September 1. She also stated she was with
Murray when he saw Lockmiller on August 21, which was the last time she saw
Lockmiller alive and she believed the same was true for Murray.
During the second interview with Murray, on September 8, 1993, he stated
that he recalled the last time he saw Lockmiller was on August 21 in the parking
lot, and that that encounter happened after he had been to Lockmiller’s apartment.
He stated that on August 25, the day of the murder, he was at home alone in the
morning and early afternoon, and that he was with Mackoway from the time she got
11
home from work at 1 P.M. until he left for Byron, Illinois, at 4 P.M. Murray’s phone
records, later obtained by Daniels, confirmed that Murray was in BloomingtonNormal on August 25. Murray also told the officers about the money Lockmiller
owed him. He offered to take a polygraph, and also told officers he and Mackoway
had moved into a hotel because they were afraid of Plaintiff.
Daniels took Murray to the Morton Crime Lab for a polygraph on September
30, 1993. The examiner attempted the test but was unable to get a result because
Murray did not follow directions despite being instructed multiple times. The
directions Murray disobeyed included taking deep breaths that disrupted the
examination, and sometimes failing to answer only yes or no. He eventually told the
examiner he was not able to comply, and he was then dismissed. The examiner did
not conclude that Murray had intentionally prevented a result, though the
examiner stated in a postconviction hearing that not following directions can be an
intentional response. Daniels testified that he did not notice any behavior during
interrogations that would suggest Murray would be unable to complete a polygraph.
Daniels discussed with Murray the possibility of trying again with a female
examiner, and another polygraph was set up for October 12, 1993, but Murray did
not show up for it.
Warner eventually received a report regarding Murray’s polygraph, which
was addressed to him. The facts as to what happened to the report after that point
are disputed. Warner has testified that he gave it to Daniels and does not know
what happened to it, but Plaintiff disputes that Daniels ever received it, as Daniels
12
has no memory of receiving it. (See Doc. 133 at 89-90). The SAO did not receive
Murray’s polygraph report.
Murray had a history of abusive behavior and use of steroids. Steroids were
found in Murray’s apartment during a search in January 1993, and he admitted to
having used them on multiple occasions. In October 1994, Murray had two felony
drug charges brought against him, as well as one domestic battery misdemeanor
charge against him based on a complaint by Mackoway. Mackoway told police of
past arguments and physical abuse by Murray, including elbowing her in the chest
repeatedly. This report led to Murray’s arrest and an order of protection. Also,
Mackoway alleged Murray had been experimenting with steroid use, which made
his behavior erratic. Souk undisputedly knew all of this information by the time of
Plaintiff’s trial.
Investigation of Plaintiff
As noted above, the investigation was focused primarily on Plaintiff from an
early stage. During the investigation, much information was obtained about
Plaintiff’s relationship with Lockmiller. They had previously dated for about two
years prior to the murder, breaking up and reuniting several times, with the
relationship ultimately ending about a month before the murder. Police learned of a
history of loud arguments, including one that ended with Plaintiff drinking nail
polish remover. Plaintiff had previously kicked in the door of Lockmiller’s home on
two occasions, which Plaintiff asserts was because she was with other men and
trying to hide it from him. (Doc. 127 at 110). Despite this information indicating a
tumultuous relationship, Plaintiff asserts the last time he saw Lockmiller after they
13
broke up, they left things on civil terms, and he began dating someone else in
August 1993.
Seven fingerprints were found on the alarm clock, the cord of which had been
used to strangle Lockmiller, two of which belonged to Plaintiff. Of the rest, four
belonged to Swaine, and one was unidentified. Defendants did not run the
unidentified print through an indexing system and do not know if anyone else did.
Plaintiff had previously stayed the night at Lockmiller’s apartment and used the
alarm clock, which Souk testified was a reasonable alternative explanation for the
presence of fingerprints. No suitable fingerprints had been removed from the alarm
clock cord or the scissors that were used to stab Lockmiller.
Regarding Plaintiff’s activities on the day of the murder, August 25, 1993,
aside from the video of Plaintiff at Bell Federal Savings and Loan at 10:11 A.M. that
day, phone records also showed two phone calls placed from Plaintiff’s parents’
home that morning, both lasting a short time, at 10:37
A.M.
and 10:39
A.M.
Plaintiff’s argument is that he made those phone calls, though this is disputed.
(Doc. 133 at 4-5). Driving time trials conducted by Freesmeyer indicate that using a
bypass route around town, Plaintiff could have driven from the bank to the
residence in twenty-five minutes, though this was not listed in Freesmeyer’s report
of the trials.5 Plaintiff’s mother testified that Plaintiff was at her home at 2:15 P.M.,
when she arrived there after being out.
As noted above, the Court previously dismissed any claim based on failure to
disclose the bypass time trial evidence, because Plaintiff had introduced evidence of
bypass route times at his trial. (Doc. 48 at 6, 7-8, 30). However, simply because it
cannot be the basis for a Brady claim does not mean the information is necessarily
immaterial to Plaintiff’s claims. Defendants’ argument to the contrary is incorrect.
5
14
Freesmeyer also conducted time trials to determine how quickly Plaintiff
could have gotten from Rockford to Bloomington-Normal and back. On at least one
of these time trials, Souk accompanied Freesmeyer. These time trials showed that
driving the speed limit, it would take two hours and seventeen minutes to drive
from Lockmiller’s apartment to the Beaman residence, or one hour and fifty-six
minutes at an average speed of seventy-five miles per hour. If Plaintiff had left from
the bank rather than the Beaman residence, time trials showed the round trip from
the bank to Lockmiller’s apartment to the Beaman residence would have taken four
hours and eleven minutes driving the speed limit, or three hours and forty-four
minutes driving an average speed of seventy-five miles per hour.
Final Investigation Stages
In April 1994, Daniels attended a national police conference in Florida on
cold case investigations. NPD Assistant Police Chief Walt Clark authorized Daniels
to attend, and instructed him to present the Lockmiller case at the conference.
While there, Daniels obtained a list of possible leads investigators could pursue in
the case.
On May 16, 1994, several people involved in the investigation met to discuss
the case. Zayas, Daniels, Freesmeyer, Reynard, and Souk were present. They
discussed whether to arrest Plaintiff, though the tone of the meeting is disputed.
Plaintiff argues Souk and Freesmeyer had already decided to arrest Plaintiff. (Doc.
127 at 103). Daniels testified that he suggested pursuing the list of leads from the
April conference, but that this suggestion was rejected by Souk. (Doc. 127 at 105).
Ultimately, the decision was made to charge Plaintiff with Lockmiller’s murder.
15
Reynard made the final decision, and Souk agreed with it. Freesmeyer also
supported the decision.
Plaintiff points to some evidence showing that not all of the investigators
were completely approving of the decision, and that some believed there was not yet
sufficient evidence. (Doc. 127 at 105-06). Several months after Plaintiff’s arrest,
Zayas held the opinion that there was still work to do to foreclose other suspects. In
particular, Daniels was strongly opposed to the decision to arrest Plaintiff.
Preparation for Trial
A grand jury indicted Plaintiff on July 14, 1994. The grand jury heard
testimony from Freesmeyer, Plaintiff, and Plaintiff’s parents, co-worker, employer,
and church Youth Ministries director. During Freesmeyer’s testimony, he gave two
answers that Plaintiff highlights. First, in the discussion of interviews with
residents of Lockmiller’s apartment building, Freesmeyer answered affirmatively a
question by Souk of whether it would “be a fair summary of those interviews that
all of them produced no eyewitnesses to the crime and no information that turned
out to be particularly helpful in the investigation.” (Doc. 133 at 118). The inference
Plaintiff urges from that statement is that Freesmeyer was untruthful or
misleading, as it ignores or discounts the statements from Lockmiller’s neighbor,
Singley, about noises in her apartment that afternoon. Second, in response to Souk’s
question of whether, other than Plaintiff, he had been able to “locate any other
person anywhere who had any conceivable motive to kill Jennifer Lockmiller,”
Freesmeyer answered “[n]o, not necessarily.” (Doc. 133 at 119). Plaintiff cites the
Murray evidence to argue this statement as untruthful.
16
Plaintiff’s defense team consisted of attorney William Beu, who had been
hired very early in the investigation and was lead counsel, attorney Rex Reu, and
investigator Vern Pickett. According to Souk, it was policy that all non-privileged
documents in the case file that the prosecutors received from police, the lab, or other
sources, were turned over to criminal defendants’ counsel. In December 1994,
Plaintiff and his counsel attended a meeting at which Warner and Souk were
present, to go over evidence and apparently to allow Plaintiff to see all of the
evidence.
Trial preparation continued into 1995. Around January 1, 1995, Freesmeyer
began working out of the SAO to begin to prepare for trial. The state had
subpoenaed Murray for the trial and he was on their witness list. In fact, there was
a flag on Murray’s drug and domestic abuse cases indicating not to offer a plea deal
without first speaking to Souk so the implications for Plaintiff’s trial could be
considered. However, the state eventually decided not to call him.
Souk filed a motion in limine before trial seeking to exclude reference to
Lockmiller’s sexual relationships other than with Plaintiff and Swaine. At a hearing
on this motion in limine before the criminal trial, on February 27, 1995, Souk
represented to the court that the state had no evidence in its possession that would
allow Plaintiff to argue any other person could have committed the crime. The next
day, Souk filed another motion in limine, to exclude evidence that someone besides
Plaintiff was the murderer. Both of these motions were granted.
17
Availability of Information to Plaintiff
Plaintiff’s attorneys did not receive the Murray or Gates polygraph reports,
the reports surrounding Murray’s arrest and protective order noting repeated
domestic abuse, or the 1993 police reports about Murray’s steroid use. Souk testified
he did not believe the information relating to Murray to be Brady material. Plaintiff
and his counsel also were not informed generally of the unpursued leads from the
Florida conference or the dissent among investigators as to the readiness of the case
for prosecution, or of Curtis’s criminal history.
Despite not receiving all information about Murray from prosecutors,
Plaintiff’s counsel had some information about Murray as they prepared for trial.
Beu knew generally that Murray had a romantic relationship with Lockmiller, had
sold her drugs, and had a criminal history. Beu additionally had the disclosed
transcripts of interviews between Daniels and Hospelhorn and Murray, including
Murray’s changed story of his whereabouts on the day of the murder and his offer to
take a polygraph examination. Beu also learned of Murray’s arrest in October 1994
for a felony drug charge. Beu testified he knew only of the marijuana-related charge
from Murray’s arrest in 1994, and did not receive information about the domestic
violence or steroids.
As noted above, it was usual policy for the SAO to disclose whatever it
received from the lab, and any non-privileged materials it had in its file. Beu was
given reports showing other suspects were given polygraph examinations, including
Swaine. The polygraph examiner testified that the lab would not provide polygraph
reports without a subpoena, and that he could not remember any instance of a
18
criminal defense attorney attempting to obtain such reports from him. Beu did not
interview any NPD investigators before trial.
Trial
At trial, the defense theory was that Plaintiff was in Rockford at the time of
the murder. Beu had researched alternative suspects, and wanted to introduce
evidence indicating other individuals could have committed the crime, including
evidence of Lockmiller’s lifestyle and her relationships and contacts with other men.
The trial court’s rulings on the motions in limine precluded such evidence. Beu
believed that had he received information about Murray’s polygraph, steroids use,
criminal background, and history of abuse, the judge would have been swayed to
allow testimony presenting Murray as an alternative suspect.
During his closing argument, Souk argued Plaintiff arrived at Lockmiller’s
home just after noon on the day of the murder, and that he was out by about 12:15
P.M.
The prosecution emphasized that every other suspect’s alibi, including Swaine
and Gates, had been proven except for Plaintiff’s. The parties stipulated at trial
that employment records showed Gates had been at work on the day of the murder.
Post-Trial Efforts
After Plaintiff was found guilty and sentenced, Plaintiff’s attorneys hired a
private investigator, Tony Matens, in November 1996 to further investigate the
murder. He obtained much of the evidence Plaintiff now alleges was withheld from
him. Subsequently, Plaintiff pursued postconviction relief in the state courts. His
efforts succeeded when, in 2008, the Illinois Supreme Court vacated Plaintiff’s
conviction. People v. Beaman, 890 N.E.2d 500 (Ill. 2008).
19
DISCUSSION
Under 42 U.S.C. § 1983, a plaintiff may bring a cause of action based on a
deprivation of constitutional rights resulting from state action. See, e.g., Padula v.
Leimbach, 656 F.3d 595, 600 (7th Cir. 2011). Section 1983 liability is generally
premised on the personal involvement of a defendant in the constitutional violation.
See, e.g., Walker v. Rowe, 791 F.2d 507, 508 (7th Cir. 1986); Duckworth v. Franzen,
780 F.2d 645, 650 (7th Cir. 1985).
In Count I, Plaintiff alleges Defendants, acting individually or in conspiracy,
deprived him of a fair trial by withholding material exculpatory evidence from him,
in violation of his due process rights. Counts II and III, though plead separately, are
closely related to Count I, as they state essentially alternative bases for liability for
the suppression of Brady material beyond specific intentional acts. Count II alleges
a conspiracy to deprive Plaintiff of material exculpatory evidence, and Count III
alleges a failure to intervene to prevent the violation of his rights in that manner.
As explained herein, the many facets of these three claims fail for a variety of
reasons—some of the undisclosed evidence Plaintiff complains of was not Brady
material; other evidence was given to the prosecutor, thus discharging Defendants’
Brady obligation; Plaintiff has not provided sufficient evidence of a conspiracy or of
failure to intervene liability; and as to the one piece of evidence that may have been
withheld from the prosecution in violation of Plaintiff’s rights, Defendants are
entitled to qualified immunity. As a result, because all federal claims are dismissed,
the Court also declines to retain supplemental jurisdiction over the remaining
claims.
20
I.
Evidence in Issue
As a preliminary matter, the Court will address a dispute over what pieces of
allegedly undisclosed evidence may properly form the basis of Plaintiff’s Brady
claims. In the Second Amended Complaint, Plaintiff alleges that Defendants caused
material exculpatory evidence to be withheld, and that the evidence “includes but is
not limited to” three specific pieces of evidence. (Doc. 69 at 19). These are 1) the
report from the polygraph of Larbi John Murray, 2) police reports from Murray’s
arrest for domestic assault, and 3) the petition for order of protection filed by
Mackoway against Murray. (Doc. 69 at 19). Plaintiff also includes at the end of that
list “further and additional exculpatory evidence not yet known to Plaintiff.” (Doc.
69 at 19).
In Defendants’ Motion for Summary Judgment, they correctly anticipated
that Plaintiff would rely on undisclosed evidence not listed in the Second Amended
Complaint to show his due process rights were violated. Specifically, Plaintiff
additionally points to 1) the report from the polygraph of Stacey “Bubba” Gates, 2)
police reports from Rob Curtis’s criminal history, and 3) the “Unsolved Nature of
the Case and Additional Leads.” (Doc. 127 at 169). Defendants complain that by
basing his Brady claim in part on this evidence not listed in the operative pleading,
Plaintiff is attempting to plead a new claim. Essentially, they argue that the only
evidence that should be considered for the Brady claim is the evidence listed in the
Second Amended Complaint, and that any allegation of additional withheld
evidence is an improper new claim that would be untimely and any amendment to
the pleading to add the claim would not relate back.
21
A recent Seventh Circuit decision, Jimenez v. City of Chicago, 732 F.3d 710
(7th Cir. 2013), makes Defendants’ argument highly doubtful. In Jimenez, the court
found no error when new Brady theories of withheld evidence beyond evidence
discussed during summary judgment were argued during trial. Id. at 718. In
reaching this conclusion, the court stated:
Contrary to the defendants’ contention, these Brady theories were not
stand-alone due process claims, and they certainly did not require
Jimenez to amend his complaint in the middle of trial to add such
factual detail to the pleadings. Defendants have not shown that they
were unfairly blindsided or that Jimenez's trial evidence contradicted
his discovery responses.
Id. This conclusion is consistent with pleading requirements. Parties are not
required to plead specific facts. See Benuzzi v. Bd. of Educ., 647 F.3d 652, 664 (7th
Cir. 2011). Discovery may reveal additional facts in support of a claim, which a
party may wish to use at a later stage. As in Jimenez, Defendants have not shown
they were unfairly surprised by these facts; in fact, they expected Plaintiff to raise
them in his Response, as he did. Thus, the Court finds nothing improper with
Plaintiff pointing to additional pieces of evidence he alleges were also withheld from
him during his criminal proceedings as evidence of a due process violation.
II.
Count I – Brady Violation
Plaintiff claims Defendants violated his due process rights by withholding
material exculpatory evidence from him during his criminal proceedings, and thus
are liable under 42 U.S.C. § 1983. A prosecutor cannot suppress material evidence
favorable to a criminal defendant. Brady v. Maryland, 373 U.S. 83, 87 (1963). If a
prosecutor withholds material exculpatory evidence, the defendant’s due process
right to a fair trial may be violated. Newsome v. McCabe, 256 F.3d 747, 752 (7th Cir.
22
2001). Under the Brady line of cases, police officers also have a duty to turn over
exculpatory evidence to the prosecutor. See Carvajal v. Dominguez, 542 F.3d 561,
566 (7th Cir. 2008); Harris v. Kuba, 486 F.3d 1010, 1014 (7th Cir. 2007); Newsome,
256 F.3d at 752.
A.
Brady Material
A plaintiff must show three elements to prove a Brady violation: 1) the
evidence must be favorable to the accused because it is exculpatory or impeaching,
2) it must have been suppressed, regardless of good faith, and 3) the evidence must
have been material, meaning there is a reasonable probability that the result of the
proceeding would have been different, which is also referred to as prejudice.
Strickler v. Greene, 527 U.S. 263, 281-82 (1999); see also Carvajal, 542 F.3d at 56667. If numerous inferences are required for the evidence to be favorable to the
accused, the first element is not satisfied. See Harris, 486 F.3d at 1016. Evidence
suggesting an alternative perpetrator is usually considered exculpatory. See
Williams v. Ryan, 623 F.3d 1258, 1265 (9th Cir. 2010).
Evidence is suppressed if “(1) the prosecution failed to disclose the evidence
in time for the defendant to make use of it, and (2) the evidence was not otherwise
available to the defendant through the exercise of reasonable diligence.” Ienco v.
Angarone, 429 F.3d 680, 683 (7th Cir. 2005). The government has no obligation to
conduct the defendant’s investigation for him. United States v. White, 970 F.2d 328,
337 (7th Cir. 1992). In Ienco, where a law enforcement database report could have
been subpoenaed by defense counsel, it was not suppressed. 429 F.3d at 683. It is
undisputed that the evidence at issue was not disclosed to Plaintiff’s counsel by the
23
prosecution, so the only question is whether the evidence was otherwise available
through reasonable diligence.
For the third element, evidence is material in the Brady context if there is a
“reasonable probability that, had the evidence been disclosed, the result of the
proceeding would have been different.” Cone v. Bell, 556 U.S. 449, 470 (2009). “The
question is not whether the defendant would more likely than not have received a
different verdict with the evidence, but whether in its absence he received a fair
trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v.
Whitley, 514 U.S. 419, 434 (1995). Thus, if confidence in the outcome of the trial is
undermined by the reasonable probability of a different outcome, the evidence is
material and the defendant suffered prejudice. See id. at 434-35. More than a “mere
possibility” that the evidence could have helped the defense is required. United
States v. Agurs, 427 U.S. 97, 110 (1976). The cumulative effect of all of the
suppressed information is considered, Goudy v. Basinger, 604 F.3d 394, 399 (7th
Cir. 2010), and the omission is “evaluated in the context of the entire record,” Agurs,
427 U.S. at 112.
1.
Curtis Criminal History
Curtis’s criminal history is not Brady material because it is not exculpatory,
and even if it could be considered exculpatory, it is not material. The only link
between Curtis and Lockmiller that Plaintiff cites is a statement he made after the
murder that she had once stood him up for a date. Plaintiff seemingly argues Curtis
was also a suspect, or should have been a suspect, in the investigation, and that
because he has tortured animals in the past, he was a more likely suspect. But too
24
many inferences are required for this piece of evidence to be favorable to Plaintiff.
Curtis’s criminal record is not evidence inculpating him in the present case. An
individual having a criminal past does not suggest he is the perpetrator of the
current crime, particularly when the incidents are as unrelated and dissimilar as
animal cruelty and murder. The evidence of Curtis’s criminal history is thus not
exculpatory, nor did it have any impeachment value, as he was not a witness. For
similar reasons, the evidence would not be material. No judge would be persuaded
that Curtis could have been presented as an alternative suspect simply because it
was revealed he had once been involved in torturing animals, disturbing as it may
be. Thus, this evidence is not Brady material.
2.
Leads and Dissents
Evidence of potential leads that were not pursued or evidence showing some
investigators had doubts about Plaintiff’s guilt is also not Brady material. The
evidence Plaintiff points to seems to be opinions from certain officers that other
suspects were not necessarily ruled out and that the case was not sufficiently strong
against Plaintiff to proceed to trial, and a list of leads Daniels obtained from the
Florida conference he attended. None of this is evidence that shows Plaintiff did not
commit the crime. In any investigation, there are likely to be leads that are not
pursued. Investigators must make decisions about how to use their resources to
investigate cases. Further, the Court is aware of no authority requiring a
prosecutorial decision to be unanimous, or creating an obligation under Brady to
disclose any lack of unanimity. With the possible exception of the evidence about
Murray, Plaintiff was given access to all of the material information that led some
25
investigators to form the opinion that the case was weak or remained unsolved.
These opinions themselves are not also Brady material. Additionally, Plaintiff
points to no impeachment value of the evidence, and the Court finds none.
The two cases Plaintiff cites to argue that evidence of leads or a lack of
thoroughness in an investigation are Brady material are inapposite. In both cases,
the evidence allegedly withheld was actual evidence indicating someone else had
commit the crime, not a list of leads generated by police officers or vague opinions
as to the status of the case. In one case, the evidence implicated an alternative
suspect, Bowen v. Maynard, 799 F.2d 593, 600-13 (10th Cir. 1986), and in the other,
the withheld evidence was an admission that another person had a contract out for
a murder victim, Mendez v. Artuz, 303 F.3d 411, 412-13 (2d Cir. 2002). Both courts,
in making brief gestures to the fact that such evidence also undermined the
thoroughness of police investigations, were simply giving superfluous support to
their conclusions, not explaining the basis for the exculpatory nature of the
evidence. Accordingly, evidence of the “unsolved nature” of the case and leads that
were not pursued need not have been disclosed to Plaintiff, and Defendants cannot
be liable for withholding it.
3.
Gates Polygraph
The evidence that Gates could have been lying on his polygraph when he
denied involvement in the murder suggests he could be an alternative perpetrator,
and is thus exculpatory. However, it is not material. Defendants point out that
Plaintiff stipulated at trial that Gates had been working at a school in Peoria the
day of the murder, though presumably Plaintiff would not have agreed to such a
26
stipulation if he had been able to argue Gates was the perpetrator. Under the
standard the trial court was applying when it excluded evidence of other suspects,
the evidence pointing to an alternative perpetrator could not be too remote or
speculative. Even if there was technically a possibility, which Freesmeyer did not
pursue, that Gates left his place of employment, a school, during the day to murder
Lockmiller, he would still have been only a speculative alternative suspect. It is
highly unlikely the trial court would have been persuaded to allow evidence
showing Gates was the actual murderer given his solid alibi and no other evidence
to indicate his guilt. Thus, the evidence was not material and was not subject to
disclosure under Brady.
4.
Murray Evidence
The evidence relating to Murray is Brady material, as it satisfies all of the
elements.6 Because it inculpates someone else, it is exculpatory. Though not strong
evidence, taken together, Murray’s erratic behavior from steroids, history of
domestic assault including elbowing his girlfriend in the chest, and possible evasion
during the polygraph, which he did not complete, suggest he could have been the
culprit.
Defendant argues the evidence was not suppressed because Plaintiff should
have discovered it with reasonable diligence. Plaintiff contends that because he was
relying on the prosecution’s representations that all non-privileged materials it had
The Illinois Supreme Court determined on the merits that the evidence relating to
Murray was Brady material that should have been disclosed to Plaintiff. Thus, this
Court questions whether it may be collaterally estopped from relitigating that issue.
The parties did not brief that point, and because the Court sees no basis for a
contrary conclusion at this stage but finds the claim must be dismissed on other
grounds, the Court need not resolve the issue.
6
27
were available to him, it was not unreasonable for his counsel not to obtain the
withheld evidence. However, the cases he cites for that proposition all address a
different, though perhaps related, question, of whether there was cause to excuse
procedural default of a claim that allows a court to analyze it on habeas review.
See, e.g., Strickler, 527 U.S. at 284-85 (holding counsel’s reliance on implicit
representation from an open file policy that all exculpatory materials would be
included satisfied to show cause for procedural default). Thus, the rule is not as
clear-cut as Plaintiff asserts, though an open file policy by a prosecutor is likely
relevant to the reasonable diligence inquiry.
Even with reasonable diligence, it would not have been expected that
Plaintiff’s counsel would have acquired the withheld Murray evidence. Regarding
the Murray polygraph, Plaintiff’s attorneys had an interview transcript showing
Murray had agreed to take a polygraph examination and a report by Freesmeyer
showing that he failed to show up for a scheduled polygraph on October 12, 1993.
This was, in fact, to be his second polygraph, but the Court does not find it
unreasonable if defense counsel concluded from the materials they had been given
that there was no polygraph report to be had. Defendants’ assertions that Attorney
Reu may have communicated with Murray’s attorney, or that he should have seen
Murray’s inaccurate representation in a newspaper article that he had passed a
polygraph, do not suffice for the Court to conclude as a matter of law that Plaintiff’s
counsel could have discovered the polygraph with reasonable diligence.
Defendants make much of the fact that the polygraph report could have been
obtained through subpoena of the crime lab where the examinations were done. It is
28
true that Seventh Circuit cases have indicated that a Brady violation cannot be
found where the evidence is available to the defendant and his counsel through
subpoena. See, e.g., United States v. Rodriguez-Andrade, 62 F.3d 948, 952 (7th Cir.
1995). However, the rule cannot be as straightforward as Defendants assert, as
virtually all evidence whose existence is known is obtainable by subpoena. It is
more logical that even those documents would have to also satisfy the reasonable
diligence standard. Because a jury could find that even with reasonable diligence
Plaintiff’s attorneys would not have discovered the Murray polygraph report, the
fact that they were obtainable by subpoena if they had known if its existence is not
dispositive.
The basis Plaintiff argues for his prejudice from the suppression of the
Murray evidence is that had he been given the withheld evidence, he would have
argued at trial that someone else had committed the murder, and this would have
undermined the prosecution’s case theory that all other suspects had been
eliminated. (Doc. 127 at 155-56). Because of a ruling on the prosecution’s motion in
limine to exclude evidence showing that someone else could have committed the
murder, Plaintiff was prevented from introducing evidence inculpating other
suspects. This ruling was made based on the prosecution’s representation to the
court that there was no evidence that sufficiently pointed to other suspects. Plaintiff
argues that with the additional evidence relating to Murray, the judge would have
been swayed to allow evidence of other suspects. (Doc. 127 at 155-56). Defendants
make no argument against the materiality of the Murray evidence in their Motion.
(Doc. 110 at 17-25).
29
There is a reasonable likelihood the trial court would have allowed evidence
of alternative suspects if presented with the suppressed evidence about Murray.
When considered in light of the whole record, this evidence is fairly persuasive, and
tends to show that another person could have committed the crime. Armed with
Murray’s documented drug abuse, domestic assault with possibly similar patterns,
and erratic behavior from steroids, as well as a polygraph that Murray did not
complete and the plausible inference that it was an intentional evasion, the
evidence pointing to Murray may well have overcome the showing required for the
trial judge to allow Plaintiff to argue another culprit, namely Murray, committed
the murder. Considering the entire record, there was a reasonable likelihood of a
different result, and this evidence is thus material.
Therefore, the only evidence that could properly be considered Brady
material is the evidence relating to Murray, specifically his polygraph report, his
domestic abuse records, and the protection order materials, which include
information about his steroid abuse. As to all of the other evidence, as a matter of
law, there was no constitutional violation even though it was not disclosed to
Plaintiff, and Defendants cannot be liable for its suppression either directly or
indirectly through conspiracy or failure to intervene liability.
B.
Officer Liability
Under the Brady line of cases, police officers have a duty to turn over
exculpatory evidence to the prosecutor. See Carvajal, 542 F.3d at 566; Harris, 486
F.3d at 1014. If they fail to do so, the accused’s due process rights are violated. See,
e.g., Newsome, 256 F.3d at 752. However, “police need not spontaneously reveal to
30
prosecutors every tidbit that with the benefit of hindsight (and the context of other
evidence) could be said to assist defendants.” Newsome v. McCabe, 260 F.3d 824,
824 (7th Cir. 2001) (per curiam). Generally, for a defendant to be liable under
§ 1983, the plaintiff must prove personal involvement in the constitutional
violation. See Kelly v. Mun. Courts of Marion Cnty., Ind., 97 F.3d 902, 909 (7th Cir.
1996).7 Joining multiple defendants in a single claim may pass muster under
federal pleading requirements; however, at the summary judgment stage, Plaintiff
is required to show, as to each Defendant, sufficient evidence of his personal
involvement in the constitutional violation to allow a reasonable jury to find for
Plaintiff against that Defendant. See, e.g., Gentry v. Duckworth, 65 F.3d 555, 561
(7th Cir. 1995).
Defendants argue that because the Illinois Supreme Court stated in its
decision vacating Plaintiff’s conviction that the State had conceded it knew of the
Murray evidence, collateral estoppel precludes Plaintiff from now arguing the
evidence was not disclosed to the prosecutor. Accordingly, Defendants argue, their
duty to disclose the evidence to the prosecutor was discharged as a matter of law.
In determining the preclusive effect of a state court judgment, the law of the
state from which the judgment came applies. See Allen v. McCurry, 449 U.S. 90, 96
(1980). Thus, Illinois issue preclusion law controls. Issue preclusion applies when:
(1) the issue decided in the prior adjudication is identical with the one
presented in the suit in question, (2) there was a final judgment on the
merits in the prior adjudication, and (3) the party against whom
Plaintiff alleges in Count I that Defendants are liable for acting “individually,
jointly, and in conspiracy.” (Doc. 69 at 19). For this discussion, the Court sets aside
potential conspiracy liability, as that is discussed in conjunction with Count II,
below.
7
31
estoppel is asserted was a party or in privity with a party to the prior
adjudication.
Gumma v. White, 833 N.E.2d 834, 843 (Ill. 2005). The issue must have been actually
litigated in the prior case, and “a decision on the issue must have been necessary to
the judgment.” Am. Family Mut. Ins. Co. v. Savickas, 739 N.E.2d 445, 451 (Ill.
2000).
Defendants point to a statement in the Illinois Supreme Court’s decision,
referring to the Murray evidence: “In its brief to this court, the State does not
dispute that it knew of the evidence and failed to disclose it.” Beaman, 890 N.E.2d
at 511. However, Defendants overlook a distinction between the analysis of Brady
violations in collateral attacks to convictions and in § 1983 litigation. When
determining whether a Brady violation entitles an accused to have his conviction
overturned, as noted by the Illinois Supreme Court, it does not matter whether the
prosecutor knew of the evidence or whether it was known only to police
investigators. See Kyles, 514 U.S. at 437-38. Knowledge of the evidence is imputed
to the prosecutor even if only the police possessed it. See id.; United States v. Mota,
685 F.3d 644, 648 (7th Cir. 2012); United States v. Wilson, 237 F.3d 827, 832 (7th
Cir. 2001). Thus, when the Illinois Supreme Court determined that the State knew
of the evidence relating to Murray, it was not distinguishing between the prosecutor
and the police, because any material exculpatory information known to either
should have been disclosed, and the failure to disclose would be constitutional error
regardless of who technically was to blame.
In contrast, it is critical to the analysis of Plaintiff’s § 1983 Brady claim to
determine whether the prosecutor knew of the evidence, or whether the police failed
32
to disclose it to him. Thus, the issue in the present case is not identical to the issue
before the Illinois Supreme Court, and issue preclusion does not bar litigation of
whether Souk himself knew of certain evidence or whether it was known only to
investigators.
Turning to the question of whether Defendants withheld any evidence from
the prosecution, the undisputed facts show that most of the Murray evidence was
not withheld from the prosecutor. It is undisputed that the police reports from
Murray’s domestic assault and the papers about the protective order against him
were known to Souk. Thus, none of this evidence can be the subject of the § 1983
Brady claim under the theory of liability for their individual actions, as Defendants
did not suppress the information from the prosecutor. Plaintiff essentially concedes
as much in his Response. (Doc. 127 at 153). Because the evidence of Murray’s
domestic assault and protection order were known to Souk, Defendants could only
be liable if they conspired with him to conceal those particular pieces of evidence,
which is addressed below. However, it is undisputed that Souk did not receive the
Murray polygraph report.
Even for this polygraph, Defendants argue there is no evidence of intentional
suppression from the prosecutor. Negligence or even gross negligence do not create
a due process violation actionable under § 1983. Slade v. Bd. of Sch. Dirs., 702 F.3d
1027, 1032 (7th Cir. 2012); see also Daniels v. Williams, 474 U.S. 327, 330-31 (1986).
Plaintiff points to disputes of fact as well as undisputed facts that it argues could
allow the jury to infer intentional suppression of evidence by Defendants. (Doc. 127
at 160-64).
33
As Plaintiff notes, there is of course no admission by any of the Defendants of
an intentional suppression of evidence. Thus, to some extent, Plaintiff must rely on
indirect evidence. The case law Plaintiff cites to support his proposition that
indirect evidence can prove intent is not exactly on point, all relating to other types
of cases in which some form of intent must be proven. Though citing a rule used in
discrimination cases, Plaintiff argues, for example, that intent could be inferred
from significant and unexplained deviations from policy. See Hobgood v. Illinois
Gaming Bd., 731 F.3d 635, 645 (7th Cir. 2013). Even if not on point, the general
idea is analogous, and Plaintiff need not have direct proof of an intentional
suppression of this polygraph.
Based on the undisputed facts in the record, there are multiple inferences a
jury could reach. A jury could well conclude the failure to turn the polygraph report
over to the prosecutor was a negligent mistake. However, taking the evidence in the
light most favorable to Plaintiff, he has pointed to sufficient evidence to support an
alternative inference that at least one of the three individual Defendants
intentionally withheld the information from Souk. The only officer that
undisputedly had the polygraph report in his possession at any point is Warner.
Under NPD policy, the polygraph reports would then be given to Zayas, who would
give them to the records department and ensure a copy was given to the prosecutor.
However, for reasons unknown, this policy was not followed with the Murray
polygraph, and the parties dispute what happened to it once received by the NPD.
Warner claims he gave it to Daniels instead of Zayas, but Daniels has no
recollection of ever receiving the report. A jury could infer from the failure to follow
34
policy and the conflicting testimony that there was intentional suppression of the
evidence by Warner, the only Defendant shown by the record to have possessed the
polygraph report. However, absent an admission by Warner, there is a disputed
issue of fact that can only be resolved by trial, and Plaintiff’s claim of the violation
of his due process rights for withholding the Murray polygraph from the prosecutor
as stated against Defendant Warner cannot be resolved as a matter of law.
Regarding the Defendants Freesmeyer and Zayas, on the other hand, there is no
evidence that either of them ever possessed the report. Therefore, Plaintiff having
shown insufficient evidence that Freesmeyer or Zayas was personally involved with
the suppression of the Murray polygraph, summary judgment is allowed on the due
process claim asserted in Count I against all Defendants except Warner.
III.
Count II – Conspiracy
In Count II, Plaintiff alleges liability based on a conspiracy between
Defendants and Souk to withhold exculpatory evidence from him. Thus, even for the
Murray evidence that was known to the prosecutor, Plaintiff argues Defendants
may still be liable for its suppression because of their role in the conspiracy to
withhold it. For a plaintiff to establish conspiracy liability in a § 1983 claim, he
must show that 1) the individuals reached an agreement to deprive him of his
constitutional rights, and 2) overt acts in furtherance actually deprived him of those
rights. See Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir. 1988). The conspirators
need not have known the precise limits of the plan, but must have shared the same
objective to violate constitutional rights and agreed to the general nature and scope
of the conspiracy. See Green v. Benden, 281 F.3d 661, 665-66 (7th Cir. 2002);
35
Hampton v. Hanrahan, 600 F.2d 600, 621 (7th Cir. 1979), rev'd in part on other
grounds, 446 U.S. 754 (1980).
Circumstantial evidence may be used to prove a conspiracy, but the evidence
must not be speculative. Williams v. Seniff, 342 F.3d 774, 785 (7th Cir. 2003). The
circumstantial evidence must be “sufficient to permit a reasonable jury to conclude
that a meeting of the minds had occurred and that the parties had an
understanding to achieve the conspiracy's objectives.” Green, 281 F.3d at 666. For
example, the Seventh Circuit has concluded that frequent phone calls do not prove a
conspiracy, they only prove that individuals were in contact. E.g., Alexander v. City
of South Bend, 433 F.3d 550, 557 (7th Cir. 2006); Goetzke v. Ferro Corp., 280 F.3d
766, 778 (7th Cir. 2002). Also, a person’s supervisory position cannot be the basis for
an inference that he was involved in the conspiracy. Bell v. City of Milwaukee, 746
F.2d 1205, 1255 (7th Cir. 1984), overruled on other grounds by Russ v. Watts, 414
F.3d 783 (7th Cir. 2005). Joint pursuit of an investigation based on a belief a
suspect is guilty is not an unlawful conspiracy. See Reasonover v. St. Louis Cnty.,
Mo., 447 F.3d 569, 582 (8th Cir. 2006). The Court knows of no authority indicating
that flaws in an investigation are evidence of a conspiracy. See Kunz v. City of
Chicago, 234 F. Supp. 2d 820, 824 (N.D. Ill. 2002) (reaching same conclusion).
A police officer’s duty to disclose exculpatory evidence is not discharged by
disclosure to a prosecutor conspiring with the police officers to fabricate evidence.
Whitlock v. Brueggemann, 682 F.3d 567, 576 (7th Cir. 2012), cert. denied, 133 S. Ct.
981 (2013). Plaintiff alleges that Defendants and Souk, and perhaps others, were
engaged in a conspiracy to deprive Plaintiff of the evidence at issue, and thus, even
36
if Souk knew of the evidence of Murray’s domestic abuse, drug arrest, and erratic
behavior from steroid use, Plaintiff argues Defendants may still be liable because of
their role in the conspiracy to suppress it or, relatedly, because their Brady duty
was not satisfied by disclosing the evidence to a co-conspirator.
The evidence Plaintiff cites to support his conspiracy theory can be put into
six general categories. (See Doc. 127 at 144-45). First, there is evidence of a “high
level of information sharing,” including frequent meetings, exchange of reports, and
close contact among the investigators. Second, Freesmeyer and Souk believed
Plaintiff was the primary suspect almost immediately. Third, there is evidence that
some of the investigators, including one of the alleged conspirators, Zayas, believed
the case was not ready to be prosecuted even as late as November 1994. Fourth,
Plaintiff points to Freesmeyer’s grand jury testimony, directed by Souk, which he
characterizes as dishonest. Fifth, Plaintiff argues, supported by some evidence, that
the conspirators faced strong incentives to resolve the case, including that
Freesmeyer, as lead investigator, would receive most of the credit for solving the
case and most of the blame if it went unsolved, and that Souk later used his
prosecution of this case in campaign materials when running for a judicial seat.
Sixth, Plaintiff cites evidence of Souk and Freesmeyer’s friendship. Plaintiff also
points to overt acts each of the conspirators committed to further the conspiracy,
most importantly that each of the Defendants could have played a role in the
unexplained disappearance of the Gates and Murray polygraphs.
Even taken together and drawing inferences in Plaintiff’s favor, none of the
evidence Plaintiff cites is enough to be more than speculative evidence of a
37
conspiracy: A jury could not reasonably infer that Defendants conspired among
themselves and with Souk with the common goal of suppressing evidence from
Plaintiff. Most of the evidence Plaintiff cites is evidence that Defendants worked
closely together and with Souk to investigate the Lockmiller case. This does not
show conspiracy; it only shows they were doing their job. Working relationships or
even friendships between individuals do not support a conspiracy claim. Zayas’s
view that the case was not ready to be prosecuted could indicate his consent to go
along with the prosecution despite its weaknesses, but does nothing to prove an
agreement to withhold evidence from Plaintiff. Freesmeyer’s grand jury testimony
with Souk’s knowledge, even if arguably misleading, is not evidence of a conspiracy.
They collaborated on the testimony as part of their jobs. The fact that Freesmeyer
did not find the Singley statements helpful, or that he believed Plaintiff should be
prosecuted and that no other suspects had a motive, do not indicate he agreed with
others to violate Plaintiff’s constitutional rights.
Plaintiff need not have a smoking gun, but he must have more than evidence
that simply shows circumstances that are likely present in most or all complex
police investigations and prosecutions—collaboration, dissenting views, and
incentives to solve the case. At most, Plaintiff’s evidence shows Defendants and
Souk worked closely to pursue the investigation and prosecution, even if wrong in
their belief that Plaintiff was the perpetrator and even if the investigation had
flaws. That is not an unlawful conspiracy. Thus, Count II is dismissed.
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IV.
Count III – Failure to Intervene
Finally, Plaintiff alleges Defendants may be liable on the basis of their failure
to intervene to prevent the withholding of material, exculpatory evidence. Failure to
intervene liability arises when an officer had reason to know that a constitutional
violation was committed and had a realistic opportunity to intervene to prevent the
violation, but did not. Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994).
Defendants’ argument against this basis of liability is that the Defendants
worked independently, and there is no evidence that they were aware of each
other’s actions. Though Defendants’ argument is sparse, the Court agrees that there
is quite simply no indication that any one of the Defendants was aware of a
violation by any of the other Defendants and failed to avail himself of an
opportunity to prevent it. The present case is distinguishable from much of the case
law on failure to intervene liability, often involving officers witnessing excessive
force or unlawful arrest by a fellow officer. See, e.g., Harper v. Albert, 400 F.3d 1052,
1064 (7th Cir. 2005). A key step in finding a failure to intervene is a violation by a
particular individual. See id. Here, as the discussion above indicates, the only
violation arguably shown by the evidence is that Warner failed to disclose the
Murray polygraph to the prosecution. Even for this alleged violation, there is no
evidence to indicate other Defendants were aware of this suppression of evidence
and able to intervene. Thus, Defendants cannot face liability on this basis, and
Count III is dismissed.
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V.
Qualified Immunity
The only violation thus remaining to be considered is the possible violation by
Defendant Warner suppressing the Murray polygraph report from the prosecution.
However, even if there was a violation of Plaintiff’s rights in this regard,
Defendants argue they are entitled to qualified immunity, and any claims against
them not dismissed on other grounds should be dismissed on the basis of qualified
immunity.
Under the qualified immunity doctrine, government officials are entitled to
protection from damages liability if their conduct “does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Courts must
undertake a two-step inquiry to determine whether officials are entitled to qualified
immunity. Pearson v. Callahan, 555 U.S. 223, 232 (2009). First, the court must
determine whether, taking the evidence in the light most favorable to the
complaining party, there is evidence that would allow for a finding of a
constitutional violation. See id. Second, the court must determine whether the right
was “clearly established” at the time of the alleged misconduct. Id. Courts may
address the steps in any order. Id. at 236.
As the discussion above indicates, Plaintiff has provided sufficient evidence of
a violation of his constitutional rights for the failure to disclose the Murray
polygraph to the prosecution. Thus, the first inquiry in qualified immunity analysis
is completed, and Plaintiff has shown facts that make out a violation of his due
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process right to the disclosure of material exculpatory evidence. The Court must
now determine whether the right was clearly established at the time of the conduct.
There are two ways a plaintiff can show a right is clearly established: “(1) he
can point to an analogous case establishing the right to be free from the conduct at
issue; or (2) he can show that the conduct was ‘so egregious that no reasonable
person could have believed that it would not violate clearly established rights.’”
Steidl v. Fermon, 494 F.3d 623, 632 (7th Cir. 2007) (quoting Smith v. City of
Chicago, 242 F.3d 737, 742 (7th Cir. 2001)). Even if factual circumstances are novel,
a right can still be clearly established, so long as the state of the law at the time
gave the defendants fair warning that their conduct was unconstitutional. Hope v.
Pelzer, 536 U.S. 730, 741 (2002). Put another way, the “contours of the right must
be sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). To
properly apply this standard, the court must consider the alleged violation with a
certain level of factual specificity. See, e.g., Steidl, 494 F.3d at 627. Thus, for a
Brady violation, the inquiry is not whether an officer would clearly know he had an
obligation to disclose exculpatory information to the prosecution; rather, the
question is more fact-specific, and it must have been clear that an officer would
have been expected to disclose the particular piece of evidence. See Carvajal, 542
F.3d at 569-70.
Defendants acknowledge that law enforcement officers’ general Brady
obligation was clearly established, but argue that the law at the time of the conduct
had not clearly established more specifically that polygraph reports had to be
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disclosed.8 Defendants point primarily to a Supreme Court case from 1995, a few
months after the Beaman trial concluded, in which the Court held that a polygraph
report that was not admissible in evidence for any purpose was not material and did
not have to be disclosed under Brady. Wood v. Bartholomew, 516 U.S. 1, 8 (1995).
With some exceptions that Plaintiff does not argue apply here, evidence of
polygraph reports are also inadmissible in Illinois. See People v. Jefferson, 705
N.E.2d 56, 62 (1998). Thus, even if the evidence could have impacted the proceeding
through the circuitous route of persuading the judge to allow at trial other evidence
that Murray was the real perpetrator of the crime, which could have provided
reasonable doubt necessary for an acquittal, it was not unreasonable for officers to
believe it was not Brady material. Given the very limited use of polygraph reports
at trial under state law, the Court concludes a reasonable officer could have the
belief that the Murray polygraph would not be material evidence. Thus, because it
was not clearly established that polygraph reports would have to be disclosed under
Brady at the time of Defendant Warner’s alleged conduct, he is entitled to qualified
immunity on this claim.
Therefore, Plaintiff’s only Brady claim that does not fail for lack of evidence
of a violation is barred by qualified immunity. Defendant Warner cannot be liable
for the Brady violation that Plaintiff alleges. For this reason and others explained
above, Counts I, II and III are dismissed.
Defendants attempt to further narrow the inquiry, to one of whether there was an
obligation to disclose a polygraph of a person who had been ruled out as a viable
suspect. But the Court finds it inappropriate to give such weight to the
prosecution’s determination of who was a viable suspect. Perhaps if the prosecutor
had received the polygraph report, he would no longer have agreed Murray was not
a viable suspect.
8
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VI.
Remaining Claims
With the first three counts dismissed, all that remain are state law claims
and counts alleging liability for the Town of Normal. These claims must also be
dismissed.
For Counts IV, V, and VI, based in Illinois law, because the parties are not
diverse, the Court’s only basis for jurisdiction is 28 U.S.C. § 1367, providing for
supplemental jurisdiction over state law claims related to a case properly in federal
court. When federal claims are resolved before trial, the general rule is that federal
courts should decline to retain supplemental jurisdiction over state law claims.
Wright v. Associated Ins. Cos. Inc., 29 F.3d 1244, 1251 (7th Cir. 1994). There are
some exceptions to the rule, such as when judicial economy supports retaining
jurisdiction. Id. However, none of them apply in the present case. Thus, the Court
declines to retain jurisdiction over Plaintiff’s state law claims, and they are
dismissed without prejudice.
Counts VII and VIII are alleged merely to create liability for the Town of
Normal for Defendants’ behavior. Because the Court has concluded that Defendants
are not liable, there is nothing to indemnify. Further, respondeat superior liability
does not apply to the federal § 1983 claims. Monell v. Dep't of Soc. Servs., 436 U.S.
658, 693-95 (1978). Thus, these counts are also dismissed.
CONCLUSION
For the reasons above, Plaintiff’s claims of a Brady violation fail. Most of the
evidence Plaintiff did not receive at his criminal trial was not Brady material, and
the undisputed facts show that most of it that was Brady material had been
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disclosed to the prosecution, thus satisfying Defendants’ obligations. Plaintiff did
not present evidence sufficient for a jury to find a conspiracy to deprive him of his
rights existed or that Defendants are subject to failure to intervene liability. Even
regarding the Murray polygraph report, the Brady material withheld from the
prosecution possibly by Defendant Warner, because the constitutional right that
may have been violated was not clearly established at the time of his action, he is
entitled to qualified immunity. All other claims are also dismissed, as the Court
declines to retain supplemental jurisdiction over the state claims and there is no
basis for municipal liability.
IT IS THEREFORE ORDERED that Defendants’ Motion for Summary
Judgment (Doc. 109) is GRANTED. Counts I, II, and III, are DISMISSED WITH
PREJUDICE. Counts IV, V, VI, VII, and VIII are DISMISSED WITHOUT
PREJUDICE. Further, the other Motion for Summary Judgment (Doc. 97), filed by
Defendants John Brown and McLean County, Illinois, is DENIED AS MOOT.
CASE TERMINATED.
Entered this 2nd day of January, 2014.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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