Evans v. City of Chicago

513 F.3d 735, 2008 U.S. App. LEXIS 1246, 2008 WL 185799
CourtCourt of Appeals for the Seventh Circuit
DecidedJanuary 23, 2008
Docket06-3401
StatusPublished
Cited by35 cases

This text of 513 F.3d 735 (Evans v. City of Chicago) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Evans v. City of Chicago, 513 F.3d 735, 2008 U.S. App. LEXIS 1246, 2008 WL 185799 (7th Cir. 2008).

Opinions

EVANS, Circuit Judge.

This is the second time we are considering Michael Evans’ case against the City of Chicago and several of its police officers alleging that the defendants conspired to falsely convict him of the abduction, rape, and murder of 9-year-old Lisa Cabassa 31 years ago. In 2006, we affirmed the district court’s denial of the police officer defendants’ motion for summary judgment based on their claim of qualified immunity. Evans v. Katalinic, 445 F.3d 953 (7th Cir.2006). Now, after a jury returned a verdict for the City and its officers, we consider several trial-related rulings on Mr. Evans’ appeal. In particular, we review whether the district court’s decision shortly before trial both to allow several officers who had declined all previous discovery requests on Fifth Amendment grounds to testify and to exclude evidence of their prior silence is consistent with Harris v. City of Chicago, 266 F.3d 750 (7th Cir.2001).

Twenty-seven years after his conviction, DNA testing established that neither Evans nor his co-defendant, Paul Terry, was the source of semen found on Lisa Cabas-sa’s body. Their convictions, based in significant part on the testimony of a woman named Judy Januszewski, were eventually vacated. The state’s attorney declined to reprosecute and Governor Rod Blagojevich subsequently pardoned Evans (and Terry) on the basis of innocence.

In 2004, Evans filed this suit pursuant to 42 U.S.C. § 1983, claiming that the police officers’ efforts to get Januszewski to identify and testify against him, along with other alleged improprieties, deprived him of due process. (Our 2006 decision contains a full discussion of these facts, so we will not repeat them here.)

Back in 2004, Evans sought to depose the defendant officers. The officers instead moved for a protective order, arguing that they should not have to be deposed in light of an ongoing investigation by a special prosecutor into certain abuses committed by police officers in their area headquarters around the time of the Ca-bassa investigation.1 Acknowledging that the Cabassa case may have been within the special prosecutor’s investigation — an issue the parties still debate — Magistrate Judge Schenkier gave the officers until January 31, 2005 (mid-way through discovery) to decide whether to participate in discovery or assert a privilege. When [739]*739January arrived, Officers Dignan, DiGiaco-mo, Hill, Katalinic, McKenna, Leracz, Ryan, and Swick (the “5A officers”) took the same position: all declined to testify, asserting their rights under the Fifth Amendment.

On November 22, 2005, after fact discovery had closed but before the close of all discovery, Katalinic changed his mind and offered to waive his Fifth Amendment privilege. He then filed an amended answer, and amended discovery responses. In the final pretrial order, filed on January 13, 2006, the defendants listed Katalinic as a “will call” witness.

On January 14, 2006, Evans moved to bar the testimony of the 5A officers. He acknowledged that Katalinic was an “arguable exception” but maintained that Kata-linic had to move to reopen discovery and seek a new deposition. On January 16, Katalinic so moved. On January 18 (12 days before the scheduled trial), the other 5A officers requested similar treatment if the special prosecutor’s report vitiated their concerns about self-incrimination. The case was then stayed until May 1 during the qualified immunity appeal.

The 5A officers renewed their request to testify on May 16, 2006, maintaining that the forthcoming release of the special prosecutor’s report would allow them to reevaluate their position. They offered to respond to discovery, make themselves available for depositions, and give Evans additional follow-up time if they decided to testify. Evans opposed this motion, arguing that such relief would effectively deny him the benefits of discovery.

On May 19, 2006, District Judge David Coar rejected the 5A officers’ request, saying that they had “made a calculated determination, and [would] be bound by their determination.” Despite this statement, Judge Coar expressly reserved ruling and allowed the parties to brief the issue.

On June 2, 2006, Judge Coar took up the issue again. This time he sided with the 5A officers. Regarding Katalinic, Judge Coar ruled that he had “made a more timely request” and therefore could testify if he answered all written discovery and appeared for a deposition within 10 days. As to the other 5A officers, Judge Coar found that they had not “acted timely” and that “there is prejudice.” However, Judge Coar gave them the same opportunity to testify under the same conditions as Kata-linic. Evans then requested that, if the 5A officers decided to testify, they give an explanation regarding their decision, considering that the special prosecutor’s report still had not been issued (although his investigation recently had ended). Evans also asked for the opportunity to object based on the officers’ justification. Judge Coar responded that Evans’ counsel could make whatever objections he wanted, but the schedule would stand.

On June 5, 2006, Evans offered to waive punitive damages against any 5A officer who agreed not to testify. Dignan accepted Evans’ offer.2 The other officers chose to testify, serving Evans with written discovery and submitting to redepositions, which were completed by July 8.3

On July 6, 2006, Evans submitted a motion requesting that the 5A officers either [740]*740be defaulted or bound to their prior privilege assertions. The 5A officers filed a cross-motion to bar any mention of their prior Fifth Amendment assertions. Judge Coar took up both motions on July 11, 2006, just before opening statements. In a brief ruling, Judge Coar denied Evans’ motion and granted the officers’. Thus, Evans’ counsel was barred at trial from making any reference to the 5A officers’ prior invocation of their Fifth Amendment privilege.

That same day, Judge Coar also ruled on the defendants’ motion to bar the testimony of Dignan, the officer who accepted Evans’ offer and would be asserting his Fifth Amendment rights in response to all questions at trial. Instead of allowing Evans to call Dignan to the stand, Judge Coar ruled that he would instruct the jury that Dignan had refused to answer questions about the case and that they could draw an adverse inference from his refusal to take the stand.

Finally, near the end of the trial, Judge Coar ruled on Evans’ proposed instructions, verdict form, and special interrogatory allowing the jury to find for him it if determined that his rights were violated by “any” City of Chicago employee “other” than the named officers. Judge Coar rejected this language as confusing and beyond the jury’s responsibility. However, he adopted Evans’ proposed conspiracy instruction, providing for liability if “at least one defendant acting voluntarily and in concert with at least one other person” violated Evans’ rights.

The case went to the jury on four claims: federal due process, conspiracy, and failure to intervene claims, and a state law malicious prosecution claim.

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Cite This Page — Counsel Stack

Bluebook (online)
513 F.3d 735, 2008 U.S. App. LEXIS 1246, 2008 WL 185799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-city-of-chicago-ca7-2008.