Argued January 19, 2012
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 07 c 1130—Ronald A. Guzmán, Judge.
Before Kanne, Sykes, and Hamilton, Circuit Judges.
Sykes, Circuit Judge.
Terrance Thompson was convicted of a state gun crime based entirely on the testimony of officers from the Chicago Police Department's Special Operations Section ("SOS"). He maintained that they fabricated the case against him by planting a gun in the vicinity of his stop and arrest. While he was serving his sentence, the Cook County State's Attorney uncovered widespread corruption in the SOS, implicating the officers who testified against him. Thompson moved to vacate his conviction and dismiss the case. The State's Attorney agreed to this relief because the officers were not credible. After more than three years in prison, Thompson was released.
Thompson sued the arresting officers for violating his due-process rights under Brady by deliberately withholding impeachment evidence, conspiring to violate the Brady disclosure duty, and failing to intervene to halt an ongoing Brady violation. He also asserted a Monell claim against the City of Chicago. The trial presented many complications. During discovery, the individual defendants invoked their Fifth Amendment privilege against self-incrimination, as did other SOS officers who otherwise would have been called as witnesses. To prove his case, Thompson had to rely on his own testimony and the adverse inference from the officers' assertion of the Fifth Amendment. He also wanted to present testimony from other victims of SOS misconduct and the guilty-plea testimony of the SOS officers who were convicted in the corruption investigation. This evidence was important to proving the Brady claims—it would help establish that the defendants deliberately withheld critical impeachment evidence of a pattern of malfeasance within the SOS—but the district court excluded much of it.
The jury found just one of the officers liable, and only on the Brady claim; it found in favor of all defendants on the remaining claims. As damages for Thompson's injury—more than three years of wrongful imprisonment— the jury awarded $15, 000. Thompson appeals, challenging the evidentiary rulings noted above and also certain trial tactics by defense counsel that he claims were improper and prejudiced his case.
We agree with Thompson's multiple claims of error. Although none are prejudicial standing alone, their cumulative effect had a substantial and injurious effect on the verdict. We reverse and remand for a new trial on the claims Thompson lost and also on damages.
On September 21, 2002, Thompson was in the area of West Ohio Street and North St. Louis Avenue in Chicago looking to buy drugs. At that time he was a heroin addict. He and several other men were standing on the corner when SOS Officers Carl Suchocki, Tim McDermott, and John Burzinski pulled up in their patrol car. As the police approached, the men on the corner scattered, but Thompson was detained and questioned by the officers, who wanted to know the location of the drug house and where the drug dealers had gone. While this questioning was underway, Officer Suchocki searched the surrounding area, disappearing for a few minutes down a gangway. He returned with a gun in his hand, saying "look what I got here, " and placed Thompson under arrest for unlawfully possessing the firearm. Questioning continued at the police station; the officers demanded that Thompson give them the location of the drug house. He said he didn't know. At some point during the interrogation, SOS Officers Jerome Finnegan and Bret Rice were also present; they were listed as "victims" on the case report. Thompson was eventually charged with aggravated unlawful use of a weapon. See 720 Ill. Comp. Stat. 5/24-1.6.
The case went to trial in October 2003. The prosecution relied entirely on the testimony of Officers Suchocki and McDermott. According to the Illinois Appellate Court's description of the trial, Suchocki and McDermott testified that on the afternoon of September 21, 2002, they were on patrol with a third officer, Burzinski, in the 3500 block of West Ohio Street. See People v. Pearson, 826 N.E.2d 1099, 1102 (Ill.App.Ct. 2005). They saw a number of people loitering on the corner, and as the officers approached, several individuals started pointing to Thompson and shouting that he had a gun. The officers testified that they saw Thompson grab a gun from his waistband and start to run away. They said they jumped out of their car, ran after Thompson, and saw him toss the gun over a fence during the foot chase. McDermott retrieved the gun while Suchocki caught up with Thompson and arrested him. Id.
On the strength of the officers' testimony, Thompson was convicted and sentenced to eight years in prison. On direct appeal the Illinois Appellate Court found a jury-selection error and reversed and remanded for a new trial. See id. at 1106-09. The Illinois Supreme Court granted leave to appeal. See People v. Pearson, 839 N.E.2d 1033 (Ill. 2005). Thompson remained in prison pending the state high court's review of his case.
In the meantime, in the fall of 2006, about three years into his prison term, Thompson saw a news story about the arrest and indictment of officers in the SOS unit on charges of corruption and other abuses of power. The Cook County State's Attorney had uncovered a longstanding pattern of misconduct within the SOS and was investigating several officers, including Suchocki. Thompson recognized him as one of the officers involved in his arrest who testified against him at trial.
Thompson immediately filed a petition to set aside his conviction, see Ill. Comp. Stat. 5/2-1401, arguing that this newly discovered evidence fatally undermined the credibility of the officers who testified against him. The petition questioned the integrity of Suchocki's police work dating back to 2002. The state prosecutor did not oppose the petition. The State's Attorney's Office had adopted a policy of dismissing any cases in which Suchocki and the other SOS officers implicated in the investigation had made an arrest or played a significant role. Assistant State's Attorney ("ASA") Kurt Smitko appeared in court and did not contest the substance of Thompson's section 1401 petition. ASA Smitko conceded that he could not carry his burden of proof because the officers who testified against Thompson were not credible. In a handwritten order dated December 5, 2006, a Cook County judge vacated Thompson's conviction, dismissed the case, and ordered Thompson released assuming no other holds. On January 9, 2007, the Illinois Supreme Court dismissed as moot its earlier order granting leave to appeal and directed the Illinois Appellate Court to vacate its decision. See People v. Pearson, 892 N.E.2d 993 (Ill. 2007). Thompson was released after serving more than three years in prison.
Thompson then brought this suit under 42 U.S.C. § 1983 against the City of Chicago and Officers Suchocki, McDermott, and Burzinski. The initial complaint alleged a series of due-process claims based on Brady, including failure to disclose impeachment evidence in violation of the basic Brady duty, conspiracy to violate Brady, and failure to intervene to prevent an ongoing Brady violation. He also alleged an equal-protection violation, a RICO claim, a Monell claim against the City, and state-law claims for false imprisonment, false arrest, intentional infliction of emotional distress, and malicious prosecution. Before trial the City stipulated to the entry of judgment against it if the jury found any of the officers liable on any of the constitutional claims, removing the Monell issue from the scope of the trial. Pretrial proceedings narrowed the case even further, leaving the following four claims for trial: the alleged Brady violation, the Brady conspiracy claim, the Brady failure-to-intervene claim, and the malicious-prosecution claim. The three claims based on Brady were premised on the same basic factual allegation that the officers had deliberately withheld and conspired to conceal critical impeachment evidence of a pattern or practice of abuse of power by officers within the SOS. Thompson sought to prove the pattern of police misconduct through his own testimony, the testimony of implicated SOS officers, and the testimony of other citizen witnesses who were victims of malfeasance by SOS officers during the relevant time period.
Motions in limine circumscribed the proofs and complicated the task of presenting the case to the jury. Thompson had initially planned to call 11 citizen witnesses to testify about abuses by SOS officers. In protracted pretrial proceedings, the district court issued a series of rulings under Rule 403 of the Federal Rules of Evidence barring four of these witnesses from testifying. Thompson was thereafter stymied in his effort to obtain the presence of certain others at trial; he was unable to serve subpoenas on two, couldn't locate another, and couldn't secure the presence of one more without delaying the trial for two days. Still another citizen witness had credibility problems based on his criminal history, so Thompson decided against calling him. In the end Thompson was left with only two citizen witnesses who would testify about their experience as victims of abuses of power by SOS officers.
In addition to the citizen witnesses, Thompson wanted to call the individual defendants adversely and also certain other SOS officers—Rice, James Eldridge, and John Blake—who were implicated in the State's Attorney's investigation. During discovery, however, the officers invoked their Fifth Amendment right against self-incrimi-nation. Thompson asked the court for a jury instruction about the permissible adverse inference from the officers' assertion of the Fifth Amendment. See Lefkowitz v. Cunningham, 431 U.S. 801, 808 n.5 (1977); Baxter v. Palmigiano, 425 U.S. 308, 318 (1976); LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 389-90 (7th Cir. 1995). The court agreed to give the instruction. Some of the SOS offi-cers—not the defendants here—had pleaded guilty to abuse-of-power charges in connection with the corruption investigation. They, too, indicated their intention to invoke the Fifth Amendment, and Thompson sought to introduce testimony from their guilty-plea hearings. The defendants objected on grounds of unfair prejudice, and the district court likewise excluded this evidence under Rule 403.
Thompson planned to present his own testimony, of course, and before trial he sought to minimize the prejudicial effect of his criminal history on cross-examination. He had a long record of arrests during the past 20 years, but only one conviction in the ten years preceding the trial. The district judge admitted the conviction for impeachment purposes but barred any reference to Thompson's arrest record. Thompson also had a history of using false names during some of his arrests, and the defendants naturally wanted to bring this evidence to the jury's attention. The court allowed it, but in an effort to avoid the obvious inference that Thompson had used the aliases during arrests—thereby putting his arrest record into evidence through the back door—the judge instructed defense counsel to refer to Thompson's use of aliases "during an important event in your life."
Finally, the judge barred evidence of Officer Suchocki's indictment. This was the subject of heated debate between the parties both before and during the trial. The defense wanted the fact of the indictment admitted, a counterintuitive position that requires some explanation. In brief, under Illinois law a malicious-prosecution claim requires proof that the criminal proceeding against the plaintiff was terminated in a manner "indicative of [the plaintiff's] innocence." Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996). The defense wanted to argue that Thompson's conviction had been vacated and the case dismissed not because he was innocent but because Suchocki had been indicted. Thompson's position was that if the indictment came in, then its contents should be read to the jury to give a more complete explanation of why Suchocki's testimony was unreliable—to explain, that is, that his testimony was not just unreliable for some reason unrelated to abuse of power but was thoroughly tainted by alleged corruption similar to Thompson's allegations here. The defense objected to admitting the contents of the Suchocki indictment and also insisted that the jury should be told that the indictment was eventually dismissed. The judge resolved the controversy by barring any reference to Suchocki's indictment.
Notwithstanding this hard-fought pretrial ruling, at trial the defense attorney posed a series of questions about the indictment of SOS officers—including Suchocki—during direct examination of Bernard Murray, Smitko's supervisor in the State's Attorney's Office. Defense counsel also mischaracterized ASA Murray's testimony during closing argument. Thompson's objections on these points were sustained, but he maintains on appeal that substantial damage to his case was done.
The jury found Suchocki liable on the Brady claim only. In all other respects, the verdict favored the defense. Suchocki was found not liable on the three remaining claims against him, and the jury found in favor of McDermott and Burzinski across the board. As damages for Thompson's ...