Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 C 3570-David H. Coar, Judge.
The opinion of the court was delivered by: Evans, Circuit Judge.
ARGUED SEPTEMBER 18, 2007
Before EVANS, WILLIAMS, and SYKES, Circuit Judges.
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 Cabassa'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 Cabassa investigation.*fn1 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 January arrived, Officers Dignan, DiGiacomo, 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 Katalinic 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 Katalinic. 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.*fn2 The other officers chose to testify, serving Evans with written discovery and submitting to redepositions, which were completed by July 8.*fn3
On July 6, 2006, Evans submitted a motion requesting that the 5A officers either be 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. The jury returned a verdict that exonerated the officers, and on August 8, 2006, Judge Coar granted judgment on the verdict. On August 29, he corrected the judgment to include the City of Chicago. This appeal followed.
Of the three arguments raised on this appeal, 70 percent of the ink in the briefs is expended on the question of how Judge Coar resolved the thorny matter of the Fifth Amendment issue regarding the 5A officers. We will consider that matter last, after we briefly resolve the two other issues raised by Mr. Evans: the handling of Dignan's Fifth Amendment issue and the rejection of certain proposed instructions and verdict questions regarding the City's liability.
Because an adverse inference can be drawn in a civil case when a witness refuses to answer a question on Fifth Amendment grounds, a party seeking to benefit from the inference always prefers to maximize and dramatize the moment. And that's what Evans wanted to do: call Dignan as a witness so the jury could watch him take the oath and then decline to answer a series of questions.*fn4 Evans' desire to proceed in this fashion is certainly understandable. But Judge Coar elected to bring Dignan's assertion of his Fifth Amendment rights to the jury in a less dramatic fashion, and we can reverse his decision on this point only if it was a clear abuse of his discretion. See Doe v. Smith, 470 F.3d 331, 341 (7th Cir. 2006). And this we cannot do.
Evans argues that, under Baxter v. Palmigiano, 425 U.S. 308 (1976), he had a right to call Dignan to the stand solely to invoke his Fifth Amendment privilege. That claim is too broad. In Baxter, the Supreme Court held that "the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them[.]" Id. at 318. We have interpreted Baxter to mean that the negative inference against a witness who invokes the Fifth Amendment in a civil case is permissive, not required. Daniels v. Pipefitters' Ass'n Local Union No. 597, 983 F.2d 800, 802 (7th Cir. 1993).
The situation presented here was rather unique. Evans candidly admits that he was "pleased" when Detective Dignan accepted his offer to rid himself of the punitive damage claim against him in exchange for a promise to continue to assert his Fifth Amendment privilege. Given this rather unusual scenario, it would be difficult to conclude that Judge Coar abused his discretion by not embracing this situation for its maximum effect.
The judge instructed the jurors that they could draw an adverse inference as to liability based on Dignan's asser- tion of the Fifth Amendment to questions about the case. There is no reason to think that the jurors ignored the instructions or assumed that Dignan was not asked questions relevant to Evans' claims. Indeed, during closing argument, Evans' counsel articulated specific questions that Dignan refused to answer, such as, "did you conspire to frame Michael Evans with the other defendants?" The jury's verdict indicates that it declined to draw a negative inference from Dignan's assertion of his Fifth Amendment rights. Given this state of affairs, we find no error in how Judge Coar decided to resolve the issue.
We turn next to the claim that Evans' proposed instructions, verdict form, and special interrogatory regarding the City of Chicago's liability were wrongly rejected. We review decisions regarding instructions and the like for an abuse of discretion. Latino Foods Marketers, ...