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Fox v. Hayes

April 7, 2010

KEVIN FOX AND MELISSA FOX, PLAINTIFFS-APPELLEES,
v.
EDWARD HAYES, MICHAEL GUILFOYLE, SCOTT SWEARENGEN, BRAD WACHTL, AND WILL COUNTY, DEFENDANTS-APPELLANTS,
v.
AMERICAN ALTERNATIVE INSURANCE CORPORATION AND ESSEX INSURANCE COMPANY, INTERVENORS-APPELLANTS.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 C 7309-John W. Darrah, Judge.

The opinion of the court was delivered by: Evans, Circuit Judge.

ARGUED SEPTEMBER 9, 2009

Before FLAUM, EVANS, and WILLIAMS, Circuit Judges.

The central event underlying this case evokes what is surely every parent's most visceral fear. In the early morning hours of June 6, 2004, three-year-old Riley Fox was taken from her home in Wilmington, Illinois. She was bound with duct tape, sexually assaulted, and drowned in a creek. Riley's parents, Kevin and Melissa Fox, claim that in the midst of their efforts to cope with this trauma, local detectives subjected them to a whole new nightmare. According to the Foxes, the defendants framed Kevin for Riley's murder, coerced him until he agreed to a "confession" that the detectives concocted, and caused him to be jailed (and facing the death penalty) on a charge of first-degree murder. The prosecutor eventually dropped the charge after DNA testing excluded Kevin as the donor of DNA found on Riley's body. In the meantime, Kevin spent eight months in jail, separated from his grieving wife and seven-year-old son, while his reputation in the small community where they lived was thoroughly smeared. To this day, no one else has been charged with Riley's murder.

Almost immediately after his arrest, Kevin and Melissa brought this multi-count, multi-party lawsuit under 42 U.S.C. § 1983 and Illinois law, claiming that Will County detectives Edward Hayes, Michael Guilfoyle, Scott Swearengen, Brad Wachtl, John Ruettiger (who died before the trial), and several other parties who have since settled or been dismissed from the suit, arrested and prosecuted Kevin without probable cause and in violation of his due process rights. The complaint also includes counts of conspiracy, false imprisonment, intentional infliction of emotional distress (IIED), and (for Melissa) loss of consortium. It sought both compensatory and punitive damages. Three years and multiple dispositive motions later, the case went to trial. After six weeks, the jury returned verdicts in favor of the Foxes against the five named defendants on all but the conspiracy and false imprisonment claims.

In its assessment of damages, the jury's verdict in favor of Kevin looked like this:

DefendantDue ProcessFalse ArrestMalicious ProsecutionIIEDPunitive DamagesTotals Hayes50000050000030000050000015000003300000 Swearengen50000050000030000050000015000003300000 Guilfoyle3000005000002000004000001400000 Wachtl300000100000200000100000700000 Estate of Ruettiger100000100000200000200000600000 Total17000001700000600000160000037000009300000

DefendantLoss of ConsortiumIIEDPunitive DamagesTotals Hayes1000000100000010000003000000 Swearengen1000000 10000002000000 Guilfoyle300000 200000500000 Wachtl300000 200000500000 Estate of Ruettiger1000000 10000002000000 Totals2700000100000025000006200000

The grand total of the damages awarded to the Foxes was $15.5 million. On motions after verdict, the district court struck all of the punitive damages awarded to Melissa ($2.5 million) and the punitive damages assessed against Wachtl ($100,000) on Kevin's claims. In addition, the district court entered an order memorializing the parties' agreement that the judgment against the Estate of John Ruettiger was satisfied and the case against it was dismissed. All of this has left the remaining tab at $12,200,000. It is that sum that is in play as the four named defendants-Hayes, Swearengen, Guilfoyle, and Wachtl-appeal.

Over the course of the long trial, the defendants and the Foxes presented drastically different versions of the events surrounding Kevin's arrest and prosecution. In broad strokes, this is the defendants' version. From day one, Kevin's behavior raised red flags that made the defendants suspect he was involved in Riley's death. After investigating for four months, Kevin was their only suspect. In October they brought Kevin in for questioning, hoping that he could resolve their concerns. In-stead, he made statements that further heightened their suspicions. When Kevin nonetheless denied involve-ment, the detectives suggested he take a polygraph examination. He did so voluntarily and failed. Their suspicions further raised, the defendants questioned him for several more hours, until Kevin admitted that he accidentally killed Riley. Kevin explained that on the night of Riley's death he accidentally hit her in the head with the bathroom door. Thinking he had killed her, he panicked. Instead of calling the police or an ambulance or a family member, Kevin bound Riley with duct tape to make it look like a murder and left her in the creek, where she drowned. The defendants had Kevin memorialize his statement on video and then arrested him for the murder of his daughter.

Because at this stage we review the evidence in the light most favorable to the Foxes, see Staub v. Proctor Hosp., 560 F.3d 647, 651 (7th Cir. 2009), what follows are more particular details of their version of these events. In June 2004, Kevin and Melissa were living with their children, Riley and six-year-old Tyler, in Wilmington, a small town located in a rural area about 60 miles south-west of Chicago. Kevin was a union painter and Melissa stayed home with the kids. Kevin took pride in his abilities as a dad, and he and Riley were particularly close. Melissa and Kevin both grew up in Wilmington and had an extended network of family and friends in town. Wilmington is the kind of place where crime is rare and people regularly leave their homes and cars unlocked. The Foxes were no exception. They often left their front door unlocked, and although the lock on their back door had been broken for months, they never bothered to fix it. Instead, they kept a stack of laundry baskets in front of the back door to keep it closed.

On June 5, 2004, a Saturday, Melissa was in Chicago with some friends to participate in a two-day walk to raise money for breast cancer research. Kevin took care of the children that afternoon and then dropped them off at the Wilmington home of Melissa's mother, who had agreed to watch the kids while he attended a concert in Chicago with Melissa's brother, Tony Rossi. Kevin and Tony drove the Foxes' Ford Escape to the concert, where Kevin drank about six beers. After the concert was over, around 10:30 p.m., Kevin and Tony went to a local restau-rant with another friend. Kevin was sober when he and Tony left for Wilmington an hour later. Around 12:50 a.m. they arrived back at the Rossis' house, where Tyler and Riley were sleeping in the living room. Kevin wanted to bring the children home so he could get them up early the next morning and travel to Chicago in time to see Melissa finish her participation in the walk. Apparently the kids were looking forward to the trip to Chicago: they had gone to an art supply store with their father that Saturday afternoon, where he purchased three poster boards and other supplies; they went home and made signs to hold up while watching their mother finish the walk. At the Rossi home later that night, Tony helped Kevin get the children into the car, and Kevin drove them home.

Before leaving for Chicago, Melissa had left the children's bed sheets in the dryer. When Kevin brought the kids in that night he was too tired to make their beds, so he put Tyler to sleep on an ottoman and Riley on the couch. They were within a few feet of each other in the living room. This wasn't an uncommon sleeping arrangement-the Foxes sometimes let the children fall asleep watching TV in the living room. After the children were sleeping, Kevin went outside and smoked a cigarette on the porch. He returned inside, watched TV in his bedroom, turned his fan on high, and fell asleep around 2:30 a.m.

Kevin awoke around 7:50 the next morning when Tyler came into his room and told him that Riley was gone. The kids often played hide-and-seek, so Kevin didn't panic. He went to the living room, where he saw Riley's blanket still on the couch and the front door open (he assumed Tyler opened it looking for Riley). He started calling Riley's name and looked carefully in her room, which was overrun with toys and had ample hiding spots. After searching the bedroom, he spent several more minutes searching the children's toy room. He then went back to the living room and kitchen and looked out the back window to see if she was in the backyard. She wasn't. After about 15 minutes, his sense of alarm growing, Kevin started walking to his neighbor's house, but he decided it was too early to ring the doorbell. Instead, he returned home and called the neighbor on the telephone. They hadn't seen Riley. Kevin started to panic now and began a more urgent search of the house. About 40 minutes after Tyler woke him up, Kevin called the police. He called 411 instead of 911 because he knew he would get the police through 411, and he thought 911 was for extreme emergencies. At that point, he was telling himself that Riley was hiding and would eventually be found.

The dispatcher who received Kevin's 411 call was a local police officer who said, "Are you kidding me?" when Kevin told him that Riley was missing. The officer drove to the Fox residence, where he joined Kevin in searching the house. Soon other police officers started to arrive, and they told Kevin to wait outside. Word of the situation got out fast, and Melissa's and Kevin's family members started to arrive. A police officer told Kevin not to call Melissa and worry her, so he didn't. Instead, he began walking around the neighborhood, calling Riley's name. While he was out walking, Melissa called Kevin, who was carrying his cell phone. He started crying and told Melissa that Riley was missing. Melissa, who at the time was on a street in Chicago with her friends and hundreds of other walkers, collapsed at the news. Her friend picked up the phone and arranged to get Melissa to Wilmington as quickly as possible. On the way home, Melissa spoke with her younger brother, Michael, who was confused and told her that he thought the kids were still at the Rossis' house.

When Melissa arrived back in Wilmington the area was overrun with police and neighbors who were helping with the search. She found Kevin in the yard across the street from their house, and police officers heard her say to him, "Did you do something stupid?" and "You better not be lying to me." Melissa testified that she said those things because there was so much confusion about where Riley might be and she thought Kevin might have caused a false alarm. She testified that Kevin had not always been truthful with her and that she thought he might not be forthcoming with information that he knew would be painful for her to hear.

The police activated an "Amber Alert" around 2:30 that afternoon, but not long after they did, searchers found Riley's body floating in a creek in a nearby forest preserve. No one told the Foxes. Instead, police officers asked them to come to the Wilmington police station to be interviewed about Riley's disappearance; the Foxes did so willingly. At the station, officers separated the couple and questioned them independently. They questioned Melissa mostly about Kevin. After about an hour, Kevin and Melissa were reunited. By that point, officers had informed Kevin's father that Riley's body was found, and they asked him to break the news to Kevin and Melissa. When he did, Kevin collapsed, then started screaming and hitting the walls. The police did not tell the family that Riley had been sexually assaulted or that her body had been found with duct tape over the mouth and arms.

The next day the Foxes returned to the police station, where they allowed the police to take their fingerprints and to collect their DNA. They also were introduced to Scott Swearengen, a Will County detective who was assigned as the lead investigator on the case. Although the Foxes didn't know it at the time, from the moment he saw Riley's body floating in the creek, Swearengen theorized that her death was an accident covered up to look like a murder by someone who knew her. But he told the Foxes that he was focusing on a theory that the murder was committed as an act of revenge by someone who might have been upset with them. Because no one told them about the sexual assault, the Foxes did not question his stated approach.

On June 22, 2004, 16 days after Riley's body was discovered, Swearengen asked the Foxes to take Tyler to a facility that he said offered free counseling. At the facility they met with Mary Jane Pluth, who introduced herself as a counselor and sought the Foxes' permission to ask Tyler if he woke up at all on the night of Riley's disappearance. They gave their permission and Kevin signed a consent form, which he did not read. If he had, he would have learned that Pluth's plan was to conduct a videotaped victim sensitive interview (VSI), which Swearengen and another Will County detective, Brad Wachtl, would watch from another room. The goal of a VSI is to extract helpful information from a vulnerable witness to assist in a criminal investigation.

The jury was allowed to watch the video of Tyler's VSI. The video shows that Pluth asked Tyler more than 20 times and in myriad ways whether Kevin had left the house on the night of Riley's disappearance. Tyler an- swered "no" repetitively, although he became more and more upset and withdrawn over the course of the interview and ended up giving some answers that were equivocal and contradictory. The video ends with six-year-old Tyler crying and asking for his parents. An expert witness called by the Foxes testified at trial that no useful information could be gained from that inter-view, and Pluth conceded as much at trial.

Little happened in the investigation during the remainder of the summer, but several things happened in September 2004 that made the Foxes doubt Swearengen's handling of the case. For one thing, Melissa testified that she learned from a friend that a child was abducted from her home in LaPorte, Indiana, on September 12. An abduction from the home, of course, was what the Foxes thought had happened to Riley. Melissa reported the matter to Swearengen and asked him to look into it. She was surprised he hadn't learned of it himself and didn't think he showed a lot of interest in investigating if there was a potential connection. Next, a friend told Melissa that they had seen police driving the Foxes' Ford Escape-which the Foxes had traded in after the murder because it reminded them of Riley-past a Mobil gas station. Later, Melissa would learn that the detectives had identified a sport utility vehicle (SUV) on the Mobil station's surveillance video at two points in the early morning hours of Riley's disappearance. They were driving the Foxes' SUV past the station to see if they could match it to the car on the tape. Finally, someone tipped off Kevin to a rumor that Riley had been killed as part of a motorcycle gang initiation, and when he called Swearengen to tell him, he found the detective's response disappointing. Swearengen sent Ruettiger to get more details from Kevin about the tip, but no one ever followed up on the lead.

The Foxes' doubts were abated for a brief moment around 7 p.m. on October 26, 2004, when Swearengen called and asked them to come down to the station to talk about a break in the case. Kevin and Melissa were excited; they drove to the station thinking they were about to learn what had happened to Riley. Their hope dissolved shortly after they arrived. They were led through three locked doors and then introduced for the first time to Ed Hayes, a supervisor recently assigned to Riley's case. Following the introduction the Foxes were separated; Melissa was taken to a waiting area and told that Guilfoyle would be right with her, and Swearengen and Wachtl took Kevin to an interrogation room. Unbeknownst to Kevin, some 30 other officers were watching the interrogation room by video monitor.

After giving Miranda warnings, Swearengen asked Kevin if he killed Riley or if he knew who did, and when Kevin said "no," Swearengen began questioning him again. Kevin repeated his story about what happened on the night of Riley's disappearance, and according to Kevin, its details were the same as the story he gave them on the night of her death. Around 8:10 p.m., about an hour after he arrived at the station, Swearengen accused Kevin of killing Riley. Kevin was outraged; he started crying, jumped from his seat, yelled that he would never do that, and tried to push his way past the officers to leave. Wachtl intervened and told him to "sit your ass down." Kevin did so. Swearengen and Wachtl started yelling that they knew Kevin killed Riley, and told him (falsely) that they had fiber evidence implicating him. Every time he tried to deny it, the officers cut him off. Kevin asked to see a lawyer and Swearengen and Wachtl left the room, locking the door behind them.

A few minutes later Swearengen returned, this time with Hayes. Swearengen told Kevin that they had a surveillance tape from the Mobil station showing his SUV driving past it at 4:50 on the morning of Riley's death. Kevin knew that couldn't be true and denied it. Swearengen then suggested it would be better for Kevin if the whole thing had been an accident, and that if it were, Kevin would be charged only with involuntary manslaughter. Hayes told him that if it wasn't an accident Kevin would spend 30 years to life in prison. Hayes kept saying that he knew Kevin would fail a poly-graph, so Kevin volunteered to take one.

Meanwhile, back in the waiting room, Melissa grew impatient when three hours passed and Guilfoyle didn't appear as promised. She began kicking on the locked door and yelling for someone to come and talk to her. Around 11 p.m., Swearengen appeared and took her to an office where Wachtl was waiting. They told her that they thought Kevin killed Riley. They told Melissa, for the first time, that Riley had been sexually assaulted. They said they thought Kevin killed Riley by accident and then tried to make it look like the motive was sexual assault. Melissa didn't buy this story, even for an in- stant. At about ...


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