Avery et al v. City of Milwaukee et al

Filing 82

ORDER signed by Judge Rudolph T. Randa on 8/18/2014. 69 Defendants' MOTION for Summary Judgment GRANTED-IN-PART, DENIED-IN-PART (See Order for details); 78 Plaintiff's MOTION to Cite Additional Authority GRANTED. Trial scheduled to begin 12/1/2014. If the parties anticipate they will be unable to complete trial in one week (five full days), they should jointly contact court to reschedule. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIAM DAMON AVERY,
WILLIAM DAMEN AVERY, Jr.,
SIRENA ALLINE AVERY,
CYNTHIA LYNN TYLER, and
JALISA JONIQUE AVERY and
NAFIA NICOLE AVERY, minors by their
Father and next friend William Avery,
Plaintiffs,
-vs-

Case No. 11-C-408

CITY OF MILWAUKEE,
DETECTIVE GILBERT HERNANDEZ,
DETECTIVE DANIEL PHILLIPS,
DETECTIVE KATHERINE HEIN,
DETECTIVE TIMOTHY HEIER,
DETECTIVE KEVIN ARMBRUSTER,
DETECTIVE ERIC GULBRANDSON, and
DETECTIVE JAMES DEVALKENAERE,
Defendants.

DECISION AND ORDER
William Damon Avery spent six years in prison for a crime he didn‘t commit: the
murder of a drug-addicted prostitute named Maryetta Griffin. Avery was exonerated by
DNA testing which excluded Avery and matched the profile of Walter E. Ellis, an accused
serial killer.1
In this civil rights lawsuit, Avery alleges that certain City of Milwaukee police
1

See http://www.innocenceproject.org/Content/William_D_Avery.php.

detectives withheld exculpatory evidence, fabricated a false confession, and procured false
testimony from three jail house informants. This conduct, according to Avery, violated
his due process rights under the United States Constitution. Avery also brings claims for
conspiracy and failure to intervene, a claim against the City under Monell v. New York
City Dep’t of Social Servs., 436 U.S. 658 (1978), and a series of supplemental state law
claims for malicious prosecution, negligent infliction of emotional distress, and intentional
infliction of emotional distress. Finally, Avery‘s five children bring claims for loss of
companionship.
The defendants now move for summary judgment. Such a motion should be
granted 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). The plain
language of the rule ―mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's case, and on which that party
will bear the burden of proof at trial.‖ Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Summary judgment is appropriate only if, on the record as a whole, a rational trier of fact
could not find for the non-moving party. Rogers v. City of Chi., 320 F.3d 748, 752 (7th
Cir. 2003).
Much of the factual background set forth below is based upon Avery‘s version of
events, the veracity of which is disputed by the defendants. For purposes of this motion,
the Court views the record in the light most favorable to Avery and draws all justifiable
inferences in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The

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Court cannot weigh the evidence or decide which testimony is more credible. McCann v.
Iroquois Mem. Hosp., 622 F.3d 745, 752 (7th Cir. 2010). In this light, the defendants‘
motion for summary judgment must be denied to the extent discussed below.
BACKGROUND
On February 17, 1998, the partially clothed body of Maryetta Griffin, an African
American female who abused crack cocaine in the Milwaukee area, was found in an
abandoned garage. Griffin died as a result of manual strangulation, likely during the early
morning hours of the date her body was found.
In 1998, Avery was a dope dealer, selling crack cocaine out of 2474 North Palmer
Street in Milwaukee. Avery sometimes sold drugs to prostitutes through dope dating —
selling drugs in exchange for sex.
In the mid-1990‘s, City of Milwaukee Police Detective James DeValkenaere was
assigned to investigate similarities in the murders of perceived street prostitutes, drug
addicts or African American women on the north side of Milwaukee, a number of whom
had been strangled. During this investigation, Detective DeValkenaere was looking into
the possibility that there was one individual responsible for multiple homicides based on
similarities in the method of death and in the demographics of the victims. On January 9,
1996, a report was generated within the Milwaukee Police Department as a result of a task
force commissioned to review 32 unsolved female homicides which occurred between
1980 and 1995 to determine whether any physical evidence existed that could benefit from
DNA testing.

The report concluded that there were similarities between recent

asphyxiation or suffocation homicide cases of females, including: all were found in or

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near vacant buildings; all victims had a history of cocaine dependency; all engaged in the
practice of ―dope dating;‖ and all frequented the same social clubs. Detectives in the
homicide unit had daily briefings where they discussed the possibility that a serial killer
was responsible for these murders.
Avery interviews
Initially, there were two people of interest in relation to the Griffin murder:
Avery, and a person named Lorenzo Frost. Detective DeValkenaere and Detective Daniel
Phillips interviewed Avery on March 23, 1998. During this interview, Avery told the
detectives that he didn‘t kill Griffin and he didn‘t know who killed her.
According to Avery, Detectives DeValkenaere and Phillips wrote a false and
fabricated police report of this interview, stating that he told them he had oral sex with
Griffin on February 16, 1998, although Avery told them no such thing, and in fact never
had sexual relations of any nature with Griffin. Also according to the report, Avery told
DeValkenaere and Phillips that on February 16, he was in the attic of the Palmer Street
residence with Griffin where they played dominos together, and she said she would be
coming back later in the evening. According to Avery, and contrary to the report, Avery
last saw Griffin in the early evening hours of February 16, and he had no interaction with
Griffin that day while she was present at the Palmer Street residence.
Detective Phillips interviewed Avery again on March 24, this time with Detective
Gilbert Hernandez.

During this interview, Avery re-proclaimed his innocence and

repeatedly asked to speak to a lawyer.
According to Avery, Detectives Phillips and Hernandez wrote a false and

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fabricated police report of this interview with Avery, falsely stating that Avery told them
he sold ―dope‖ to Griffin February 16; that Avery told them that he was awakened by
Griffin going through his pockets and pulling out his money; that he fought with Griffin;
that he did not remember what happened but he told ―Ronnie‖ that he thought he ―killed
this bitch;‖ and that he was responsible for the murder, but he did not remember.
Later in the day, Avery was interviewed by Detective Katherine Hein (n/k/a
Spano). Avery repeatedly told Detective Hein that he didn‘t kill Griffin and didn‘t know
who did. Detective Hein wrote a fabricated police report of her interview with Avery,
falsely stating that she advised Avery of his constitutional rights; that Avery told her that
the Palmer residence was used by prostitutes to receive drugs in exchange for sexual
relations; that Avery told her he had oral sex, penis to mouth, with Griffin on February 16;
and that Avery told her about an incident where a woman known as ―Little Bit‖ was sent
out to get alcohol one evening the previous week and falsely reported that this incident
happened on February 16.
Jailhouse informants
Keith Randolph was an acquaintance of Avery who assisted him with legal
documents while incarcerated. On March 21, 2001, Detective Timothy Heier interviewed
Randolph at the Milwaukee Police Department Investigation Bureau. During the course
of this interview, Detective Heier supplied Randolph with details about the Griffin
homicide, coached Randolph into falsely implicating Avery in the Griffin homicide, and
promised Randolph that he would help him get his sentence reduced. Detectives Hein and
Hernandez did the same during an October 23, 2003 interview with Randolph at the

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Stanley Correctional Institution in Stanley, Wisconsin.
Antron Kent was incarcerated during the same period of time as Avery at the
Milwaukee County Jail and later at the North Fork Correctional Facility in Sayre,
Oklahoma. In July and August of 2002, Detective Kevin Armbruster had more than five
telephone conversations with Kent.

During these phone conversations, Detective

Armbruster supplied Kent with details about the Griffin homicide, coached, threatened,
and pressured Kent into making false statements which implicated Avery in the murder,
and promised Kent that he would help him get his sentence reduced. This process was
repeated during an August 26, 2002 interview at the North Fork Correctional facility,
conducted by Detectives Armbruster and Heier; an October 23, 2003 interview at the
Green Bay Correctional Institution, conducted by Detectives Hernandez and Hein; and a
September 7, 2004 interview at the GBCI, conducted by Detective Heier and Detective
Eric Gulbrandson.2
Jeffrey Kimbrough was incarcerated during the same period of time as Avery at
the North Fork Correctional Facility, although they never had any contact or interaction
with each other. Kimbrough was Kent‘s cellmate and was looking for a reduction in his
own criminal sentence. On August 27, 2002, Detectives Armbruster and Heier supplied
Kimbrough with details about the Griffin homicide and coached and pressured him into

2

When questioned about these interviews during his deposition, Kent invoked the Fifth
Amendment and refused to answer. Adverse inferences can be drawn from Fifth Amendment silence
in civil proceedings. LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 390 (7th Cir. 1995). Such an
inference, standing alone, is insufficient to create an issue of material fact that precludes summary
judgment. See, e.g., Barker v. Int’l Union of Operating Eng. Local 150, No. 08 C 50015, 2011 WL
6338800, at *6 (N.D. Ill. Dec. 19, 2011). Here, there is more than enough evidence to corroborate the
adverse inference that is raised by Kent‘s invocation of the Fifth Amendment.

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falsely implicating Avery in the murder. The same thing happened during an October 20,
2003 interview at the Prairie Correctional Facility in Appleton, Minnesota, conducted by
Detectives Hein and Hernandez.
Legal proceedings
On September 7, 2004, Avery was charged with first degree reckless homicide as
a party to the crime, Wis. Stat. §§ 940.02(1), 939.05. On March 7, 2005, Avery was
convicted following a three-day jury trial. On May 26, 2005, Avery was sentenced to an
indeterminate term of not more than forty years imprisonment.
At Avery‘s trial, Detective Phillips testified that Avery told him that he awoke
early in the morning with Griffin going through his pockets, that they fought, and that
Avery said that he was responsible for the murder but did not remember how he killed Ms.
Griffin. Detective Hernandez testified to the same effect.
Antron Kent testified that Avery confessed to him while they were incarcerated
together. Keith Randolph confirmed that he told police about Avery‘s confession. On the
day he was scheduled to testify, Jeffrey Kimbrough told Detective Heier that he did not
want to testify against Avery. Detective Heier told Kimbrough that he ―had to do it‖ and
that there was ―no going back now.‖ Kimbrough then testified that he overheard Avery
confess to Kent while they were incarcerated together.
Avery testified at his trial that he did not confess to committing the murder and
that he did not make any inculpatory statements to Kent, Kimbrough or Randolph.
After Avery‘s trial, Detective Heier testified on behalf of Kent at a hearing related
to his sentence, explaining that his cooperation and testimony helped to convict Avery.

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Kent‘s sentence was later reduced by five years.
Exoneration
On April 5, 2010, Avery wrote a letter to Milwaukee County District Attorney
John Chisholm seeking new testing of a DNA sample taken from Griffin‘s mouth. On
April 19, 2010, Assistant District Attorney Norman Gahn sent Avery a letter stating that
he received Avery‘s letter to Chisholm and that the evidence would be submitted for
further testing.
On May 6, 2010, Gahn and Assistant District Attorney Mark Williams sent Avery
a letter stating that the DNA sample taken from Griffin‘s mouth was not a match for
Avery and was consistent with ―another person who is charged with crimes.‖ In May of
2010, Avery was released from prison, and on September 21, 2010, the circuit court
vacated the jury‘s verdict and sentence. On December 12, 2012, the State of Wisconsin
Claims Board granted Avery‘s petition for compensation under Wis. Stat. § 775.05,
finding that Avery provided ―clear and convincing evidence that he was innocent of the
crime for which he was convicted.‖
ANALYSIS
All of the individual defendants in this case invoke qualified immunity, which
shields them from liability for civil damages ―insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would
have known.‖ Estate of Escobedo v. Bender, 600 F.3d 770, 778 (7th Cir. 2010). To
determine whether the defendants are entitled to qualified immunity, the Court must
analyze whether a constitutional right would have been violated on Avery‘s version of the

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facts, and if so, whether the right was clearly established at the time of the alleged
violation. Viilo v. Eyre, 547 F.3d 707, 709-10 (7th Cir. 2008). To be clearly established
at the time of the challenged conduct, the right‘s contours must be ―sufficiently clear that
every reasonable official would have understood that what he is doing violates that right,‖
and ―existing precedent must have placed the statutory or constitutional precedent beyond
debate.‖ Humphries v. Milwaukee Cnty., 702 F.3d 1003, 1006 (7th Cir. 2012). This
standard ―protects the balance between vindication of constitutional rights and
government officials‘ effective performance of their duties by ensuring that officials can
reasonably . . . anticipate when their conduct may give rise to liability for damages.‖
Rabin v. Flynn, 725 F.3d 628, 632 (7th Cir. 2013) (quoting Reichle v. Howards, --- U.S. ---, 132 S. Ct. 2088, 2093 (2012)).
Fabrication of evidence
Avery argues that the defendants violated his clearly established due process
rights by creating false written reports that he confessed, knowing that he had not, and
also by manufacturing false testimony from jailhouse informants in order to corroborate
the fabricated confession. The Seventh Circuit has ―consistently held that a police officer
who manufactures false evidence against a criminal defendant violates due process if that
evidence is later used to deprive the defendant of her liberty in some way.‖ Whitlock v.
Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012). Moreover, it was clearly established as
early as 1935 that a state‘s presentation of testimony ―known to be perjured . . . to procure
the conviction and imprisonment of a defendant is as inconsistent with the rudimentary
demands of justice as is the obtaining of a like result by intimidation.‖

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Mooney v.

Holohan, 294 U.S. 103, 112 (1935). Building off of Mooney and subsequent cases, the
Seventh Circuit held it clearly established as of at least 1987 that the ―deliberate
manufacture of false evidence contravenes the Due Process Clause.‖ Whitlock at 585; see
also Fields v. Wharrie (―Fields II‖), 740 F.3d 1107, 1114 (7th Cir. 2014) (―it was
established law by 1985 (indeed long before) . . . that a government lawyer‘s fabricating
evidence against a criminal defendant was a violation of due process‖); Limone v.
Condon, 372 F.3d 39, 44-45 (1st Cir. 2005) (―if any concept is fundamental to our
American system of justice, it is that those charged with upholding the law are prohibited
from deliberately fabricating evidence and framing individuals for crimes they did not
commit‖).
The defendants completely ignore this controlling precedent in their opening brief.
In reply, the defendants argue that Whitlock and Fields II are distinguishable because the
informants in those cases initiated contact with the police. In this case, by contrast, the
jailhouse informants initiated contact with the detectives. The Court fails to grasp how
this is a relevant distinction. Fabricated evidence is fabricated evidence. Even if the
distinction were relevant, the defendants‘ argument fails to account for Avery‘s assertion
that his confession was also fabricated.
The defendants argue further that Avery‘s fabrication claim is barred by Newsome
v. McCabe, 256 F.3d 747 (7th Cir. 2001), but that case involved an entirely different
claim, one for malicious prosecution. Insofar as there is a ―constitutional right not to be
prosecuted without probable cause,‖ such a claim is ―knock[ed] out‖ by the ―existence of
a tort claim under state law.‖ Id. at 750. Avery‘s fabrication claim does not, as the

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defendants argue, amount to a claim for malicious prosecution. Perhaps it used to, see,
e.g., McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir. 2003), but no longer in light of
Whitlock and Fields II. See Petty v. City of Chi., 754 F.3d 416, 421 (7th Cir. 2014);
Saunders v. City of Chi., No. 12-cv-09158, 2014 WL 3535723, at *2 (N.D. Ill. July 11,
2014) (noting that prior to Whitlock and Fields II, courts ―typically held either that
fabricating evidence does not violate due process, or that fabricating evidence may violate
due process, but the existence of a state law tort for malicious prosecution dictates that a
plaintiff must bring his claim pursuant to state law rather than as a due process claim
under Section 1983‖).
The defendants attempt to link Newsome to the instant case through the
observation that in Newsome, the defendant police officers ―encouraged two witnesses to
select Newsome from a lineup – which the witnesses did, forming a vital link in the
process that led to Newsome‘s conviction as Cohen‘s killer . . .‖ 256 F.3d at 749. If the
plaintiff in Newsome had pressed a due process claim,3 it likely would have failed based
upon the distinction between coercion and fabrication. In ―fabrication cases, the police or
prosecutor manufactures evidence that he knows to be false. As we said in Fields II and
reiterate here, a prosecutor fabricating evidence that she knows to be false is different than
getting ‗a reluctant witness to say what may be true.‘‖ Petty, 754 F.3d at 422 (quoting
Fields II, 740 F.3d at 1112). Thus, there is no cognizable due process claim in a coercion
case, as opposed to an evidence fabrication case where there is a cognizable claim. Id.

Saunders, 2014 WL 3535723, at *3 (―neither Newsome nor McCann addressed whether
fabricated evidence violates a defendant‘s due process rights‖).
3

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In Fields II, the Seventh Circuit clarified the relevant terminology. ―Coerced
testimony is testimony that a witness is forced by improper means to give; the testimony
may be true or false. Fabricated testimony is testimony that is made up; it is invariably
false. False testimony is the equivalent; it is testimony known to be untrue by the witness
and by whoever cajoled or coerced the witness to give it. Much testimony is inaccurate,
but not deliberately so and therefore not false or fabricated as we are using these words.‖
740 F.3d at 1110. Avery asserts that the defendants pressured (i.e., coerced) the jailhouse
informants into saying that Avery confessed to the Griffin murder, but he also argues that
the defendants and the informants all knew that Avery didn‘t confess. Id. at 1112 (―the
prosecutor who was sued in Whitlock was part of an investigative team that told witnesses
what to say knowing that what the team was telling them was false. This is different from
coercing a reluctant witness to say what may be true‖) (emphasis added) (internal citations
omitted). That the informants were coerced into fabricating evidence doesn‘t make the
evidence any less fabricated. Coercion can be ―an essential tool in ‗persuading‘ a witness
to fabricate testimony.‖ Id. This is, quite clearly, a fabrication case, the hallmark of
which is that the defendants ―manufactured evidence that they knew to be false.‖ Petty at
423. Avery can proceed to trial on his claim that the defendants violated his due process
rights in this manner.

Brady v. Maryland
Avery also argues that the defendants violated due process by not disclosing the
fact that they coached and manipulated the jailhouse informants into falsely implicating

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him in the Griffin murder. This claim arises under Brady v. Maryland, 373 U.S. 83
(1963), a ―due process case that entitles criminal defendants to be shown any exculpatory
evidence (including evidence usable to impeach a prosecution witness) in the possession
of prosecutors, . . .‖ Gauger v. Hendle, 349 F.3d 354, 360 (7th Cir. 2003). Brady and its
progeny apply to investigating police officers when they ―withhold exculpatory evidence
from prosecutors and the withholding of evidence is ‗material.‘‖ Holland v. City of Chi.,
643 F.3d 248, 255 (7th Cir. 2011).
In Gauger, the plaintiff pressed a similar argument: that detectives were required
to give truthful versions of his own statements at an interrogation to the prosecutors to be
forwarded to his counsel at his criminal trial. The Seventh Circuit found ―the proposed
extension of Brady difficult even to understand. It implies that the state has a duty not
merely to disclose but also to create exculpatory evidence. Indeed, the duty to disclose
falls out, because Gauger knew what he had said at the interrogation. The problem was
not that evidence useful to him was being concealed; the problem was that the detectives
were giving false evidence. Gauger wants to make every false statement by a prosecution
witness the basis for a civil rights suit, on the theory that by failing to correct the statement
the prosecution deprived the defendant of Brady material, that is, the correction itself.‖
349 F.3d at 360 (internal citations omitted).
Here, the duty to disclose under Brady ―drops out‖ because Avery knew what he
said (or didn‘t say) to the jailhouse informants, just like Gauger knew what he said to the
interrogating police officers. See Harris v. Kuba, 486 F.3d 1010, 1017 (7th Cir. 2007)
(―Like Gauger, Harris knew about his relationship, or lack thereof, with Davis. He was

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fully capable of challenging the officers‘ and prosecutors‘ contention to the contrary‖).
Avery ―seeks an extension of Brady to provide relief if a police officer makes a false
statement to a prosecutor by arguing that an officer is ‗suppressing‘ evidence of the truth
by making the false statement.‖ Id. The Seventh Circuit has ―foreclosed this extension.‖
Id.; see also Sornberger v. City of Knoxville, 434 F.3d 1006, 1029 (7th Cir. 2006) (―Nor
can Brady serve as the basis of a cause of action against the officers for failing to disclose
these circumstances [a coerced confession] to the prosecutor. . . . The Constitution does
not require that police testify truthfully; rather ‗the constitutional rule is that the defendant
is entitled to a trial that will enable jurors to determine where the truth lies‘‖) (emphasis in
original).
Remaining claims
The defendants‘ only argument regarding the balance of Avery‘s claims is that
they should be dismissed due to the absence of a viable, underlying due process claim.
Obviously, given the foregoing analysis, summary judgment cannot be granted on that
basis. The Court will also retain jurisdiction over the supplemental state law claims.
***
Avery‘s motion to cite additional authority [ECF No. 78] is GRANTED. The
defendants‘ motion for summary judgment [ECF No. 69] is GRANTED-IN-PART and
DENIED-IN-PART, consistent with the foregoing opinion.
The trial in this case is scheduled to begin on December 1, 2014. If the parties
anticipate that they will be unable to complete this trial in one week (five full days), they
should jointly contact the Court to discuss re-scheduling.

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Dated at Milwaukee, Wisconsin, this 18th day of August, 2014.

SO ORDERED:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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