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Whitted v. Joshua

July 20, 2009


The opinion of the court was delivered by: Judge John A. Nordberg


Plaintiff Michael Whitted alleges he was wrongfully charged with murder and forced to spend over two years in jail. According to Whitted, defendant Andrew Joshua arrested him based on a single eyewitness whose story he knew was flawed in two significant ways. Before the court are cross-motions for summary judgment. The key facts and arguments can be summarized upfront.

On April 11, 1996, two cousins from Michigan traveled to the south side of Chicago to buy marijuana. Both were shot in the early evening, in separate incidents. Demetrius Hunter survived, but his cousin Derrick Hunter was found dead in the driver's seat of his car located in a vacant lot next to two abandoned truck trailers.

No eyewitness to the murder was found that night. Over the next three months, Joshua focused the investigation on three young men involved in the drug deal with the two cousins.

After interviewing two of the three suspects, Joshua felt he did not have enough evidence to charge them for the murder.

So he went back to look for an eyewitness. It was then three months after the shooting. He found a woman named Lena Haller who claimed to have seen the shooting from approximately 200 feet away. Based on this one eyewitness, Joshua arrested Whitted for murder.

But from the outset, Joshua knew Haller's story had at least one significant problem. Her version of what happened conflicted with the physical evidence. Haller claimed the shooter stood outside the driver's side door and shot the victim in the driver's seat. But the gun wounds were on the right side of the victim's body, suggesting the shooter was in the front passenger seat. Joshua told the felony review prosecutor about this problem and he refused to approve murder charges. Whitted was released from jail the next day. That was in 1996.

Nothing happened for two years. Then, in 1998, through happenstance, Joshua located the third suspect. Even though he provided no new information, Joshua decided to re-charge Whitted based on the same evidence and the same theory.

A different state's attorney came out to conduct felony review. This time Joshua took a different approach in briefing the prosecutor. He omitted the part about how Haller's statement conflicted with the physical evidence. This prosecutor, after interviewing Haller and briefly visiting the crime scene, approved murder charges against Whitted.

Unable to post bail, Whitted sat in jail for almost two and a half years waiting trial. Shortly before trial, a third prosecutor was assigned to try to the case. She interviewed Haller and concluded she was no longer credible because of possible dementia. The reason for this diagnosis is that Haller told the prosecutor the shooter was white. She previously said he was black. Whitted is African American. Based on this change in Haller's story, the prosecutor nolle prosequi the charges and Whitted was released from jail.

Three months after being let out of jail, Whitted filed this § 1983 lawsuit. An amended complaint was filed several years later. The gist of the complaint is that Joshua knew Haller's story was unreliable because of two major flaws. The first is the conflict with the physical evidence described above. The second alleged flaw is that Haller could not have seen the shooting from where she was standing because her line of sight was completely blocked by the two abandoned truck trailers.

Viewed from a broader perspective, Whitted is alleging that Joshua engaged in prosecutor shopping. After being told by the first prosecutor that the evidence was insufficient, Joshua waited two years to re-charge Whitted and then kept the second prosecutor in the dark about the flaws in Haller's statement. According to Whitted, if Joshua had simply taken the time to tell the second prosecutor about the flaws, he never would have approved the charges. Stated more bluntly: a five minute conversation would have kept Whitted from needlessly spending two and half years in jail.

Joshua raises various legal and factual arguments in response. First, as to each of the individual § 1983 claims, he asserts specific legal defenses, such as the statute of limitations. Second, with regard to all claims, both the § 1983 claims and the state malicious prosecution claim, he argues he had probable cause to arrest Whitted. The two alleged flaws can be explained away by positing a few additional facts in the record. Alternatively, even if he failed to explicitly tell the prosecutor about the flaws, he made the documents available to him and was not required to give an opinion about the evidence. Third, he argues that, if summary judgment is granted on the federal claims, one alternative would be to dismiss the state claim for lack of supplemental jurisdiction.

Analysis of Legal Claims

Before going into greater detail on the facts, it makes sense first to analyze whether plaintiff has any federal claims even if the facts are construed in his favor. Questions have persisted throughout the long history of this case about whether plaintiff has any viable § 1983 claims. As a general matter, a plaintiff alleging he was framed for a crime faces a "difficult task" in formulating a federal cause of action under § 1983, a point the Seventh Circuit has noted several times. See, e.g., Manning v. Miller, 355 F.3d 1028, 1031 (7th Cir. 2004). In addition, the law changed during discovery, with new decisions being issued by the Seventh Circuit and the U.S. Supreme Court.

Now, after lengthy discovery and supplemental briefing, it has become clear that all of Whitted's federal claims are not viable. From the start of this case, the parties have argued whether the two-year statute of limitations for the § 1983 false arrest claim accrued upon plaintiff's arrest in 1998 or upon his release from jail in 2001. In light of the Supreme Court's ruling in Wallace v. Kato, 549 U.S. 384 (2007), Whitted now concedes that the issue has been definitively resolved against him. He also recognizes that his § 1983 malicious prosecution is barred by Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001), and has dropped other claims such as the alleged manipulation of the line-up. The remaining federal claim is the type of Fourteenth Amendment due process claim mentioned in Newsome. However, as Judge Shadur discussed in Johnson v. Garza, 564 F.Supp.2d 845, 854 (N.D. Ill. 2008), such a claim rests on a violation of Brady v. Maryland and is therefore not viable where, as here, the case did not go to trial.

This leaves only the state law malicious prosecution claim. Joshua primarily argues that we should grant judgment in his favor on the merits of this claim. However, he also briefly states that we could dismiss the claim for lack of supplemental jurisdiction. It obviously makes sense to address the latter argument first.

Under 28 U.S.C. § 1367, we have discretion to retain or remand supplemental state law claims after dismissing the federal claims. Adkins v. Illinois Cent. R. Co., 326 F.3d 828, 836 (7th Cir. 2003). When the federal claims are dismissed before trial, there is a general presumption that pendent claims should be "left to the state courts." Wright v. Associated Ins. Cos., 29 F.3d 1244, 1252 (7th Cir. 1994). Yet, as the Seventh Circuit has stated, the presumption is not automatic. Williams Electronics Games, Inc. v. Garity, 479 F.3d 904, 906-07 (7th Cir. 2007) (court may retain jurisdiction where "substantial federal judicial resources have already been expended on the resolution of the supplemental claims"); Timm v. Mead Corp., 32 F.3d 273, 277 (7th Cir. 1994) (court should consider "judicial economy, convenience, fairness, and comity").

Exercising our discretion, we find that fairness and judicial economy favor retaining jurisdiction. Discovery has been extensive and this case has been ongoing for some time. To restart it now in state court would increase the delay and perhaps lead to additional discovery. See Williams, 479 F.3d at 906 (sending case to state court "might require a reopening of pretrial discovery or other adjustments[,] thus delaying the outcome of the case and running up the expense of the litigation"). Moreover, substantial judicial resources have already been expended by both this Court and the parties in addressing the present arguments in the summary judgment briefs and exhibits.

The Malicious Prosecution Claim

To assert a claim for malicious prosecution under Illinois law, a plaintiff must show: (1) the defendant commenced or continued a criminal proceeding; (2) the proceeding was terminated in plaintiff's favor; (3) there was no probable cause to arrest him; (4) malice; and (5) damages. Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996). Although defendant argues that plaintiff cannot establish the second and fourth elements, he directs his major effort against the third element of probable cause.

I. Probable Cause

To assess probable cause, we must set forth the facts in greater detail. Our initial and primary focus will be on defendant's motion, meaning we will view disputed facts and reasonable inferences in plaintiff's favor. In Section IV, we address plaintiff's cross-motion.

On April 11, 1996, Demetrius and Derrick Hunter drove to Illinois to buy marijuana from Peter Gukina who lived in Harvey, Illinois. This was not the first drug deal between them. The plan was for the two cousins to first meet Gukina at a Burger King in Markham, Illinois and then for everyone to drive to Harvey. The two cousins drove a blue Nissan Maxima. Gukina drove a black Chevy. He was accompanied by Demetrius and Donovan Whitted.

After meeting at the Burger King, the two groups drove to Harvey. There, they split up. Derrick's cousin, Demetrius Hunter, got out of the blue Nissan and waited outside by a fence, along with Gukina and Donovan Whitted. Derrick Hunter, the murder victim, stayed in the driver's seat of the blue Nissan and was joined by Demetrius Whitted in the front passenger seat. They drove off in the blue Nissan.

According to Demetrius Hunter, while they waited outside, Donovan Whitted suddenly pulled out a gun and started shooting him. Demetrius Hunter ran but was shot several times in the legs and hand. As he fell to the ground, he saw his cousin driving east-bound on 148th Street in the blue Nissan with Gukina was running ...

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