William D. Avery, Plaintiff-Appellant,
City of Milwaukee, et al., Defendants-Appellees.
February 23, 2016
from the United States District Court for the Eastern
District of Wisconsin. No. ll-C-408 - Rudolph T. Randa,
Wood, Chief Judge, Sykes and Hamilton, Circuit Judges.
February 1998 Maryetta Griffin was raped and strangled to
death and left in an abandoned garage on Milwaukee's
north side. In 2004 Milwaukee police arrested William Avery
for the crime. He was convicted of first-degree homicide and
spent six years in prison before DNA evidence proved that
Walter Ellis, a serial killer linked to nine similar
homicides, was responsible for the murder. In 2010 Avery was
released from prison; this wrongful-conviction suit followed.
Avery alleged that Milwaukee detectives concocted a fake
confession and induced three jailhouse informants to falsely
incriminate him-evidence that was ultimately used to convict
him. He also claimed that the detectives failed to disclose,
as required by Brady v. Maryland, 373 U.S. 83
(1963), impeachment evidence about how they obtained the
false statements from the informants. Finally, Avery added a
claim against the City of Milwaukee under Monell v.
Department of Social Services, 436 U.S. 658 (1978).
district judge rejected the Brady claims on summary
judgment, reasoning that the detectives had no duty to
disclose the impeachment evidence because Avery already knew
the informants' statements were false. The remaining
claims were tried to a jury, which found two of the
detectives liable for violating Avery's due-process
rights. The jury also found the City liable and awarded $1
million in damages.
victory was short-lived. The judge invalidated the verdict
against the detectives based on what he said were "mixed
signals" coming from this court on whether an
officer's fabrication of evidence is actionable as a
due-process violation. The judge also set aside the verdict
against the City, holding that without a constitutional
violation by the detectives, Monell liability was
reverse. Avery's due-process claims fall comfortably
within our decision in Whitlock v. Brueggemann, 682
F.3d 567 (7th Cir. 2012), so the jury's verdict was
legally sound and must be reinstated in its entirety. The
Brady claims, too, must be revived. That Avery knew
the informants' statements were false did not relieve the
detectives of their duty to disclose impeachment evidence.
Avery is entitled to resume litigation of these claims.
Griffin, known as "Mercedes, " was sexually
assaulted and strangled to death in the early morning hours
of February 17, 1998. Her body was found in an abandoned
garage in a decrepit and crime-ridden neighborhood on
Milwaukee's north side. Griffin's death was tragic;
so was her life. She made her living as a prostitute and was
addicted to crack cocaine.
Avery knew Griffin. He ran a drug house in the neighborhood
and occasionally exchanged drugs for sex with prostitutes in
the area. Griffin, along with several other prostitutes, had
been at Avery's drug house the day before her death.
month after Griffin was killed, detectives from the Milwaukee
Police Department asked Avery to come to the station to speak
with them about the murder. Avery complied; he denied any
involvement in her death. After two prolonged rounds of
interrogation by four different detectives, he was sent to a
holding cell for the night. The next day two detectives from
the day before-Daniel Phillips and Gilbert Hernandez-resumed
the interrogation. Avery again denied involvement in the
crime. The detectives continued to badger him, accusing him
of killing Griffin. They reminded him that Mercedes was last
seen alive at his drug house and suggested that perhaps she
had tried to steal from him and a struggle or chase ensued.
Maybe she fell down the stairs and broke her neck during the
struggle? Avery denied that this happened.
his persistent denials, Detectives Phillips and Hernandez
prepared reports falsely stating that Avery confessed to the
murder and gave the following account of events: Mercedes was
at his drug house on the night in question; he fell asleep
and woke up to find her stealing cash from his pockets; he
remembered fighting with her but couldn't recall what
happened next, though he did remember telling a third person
that he "killed this bitch"; and finally, he
admitted that he killed Mercedes but couldn't remember
how he did it.
Phillips and Hernandez gave their reports to Assistant
District Attorney Mark Williams, Milwaukee's chief
homicide prosecutor. Williams concluded that the evidence was
insufficient to support a homicide charge. Avery was instead
charged with state narcotics offenses arising from his
drug-house operation. He was convicted and began serving a
short prison term.
in prison Avery met fellow inmates Keith Randolph, Antron
Kent, and Jeffrey Kimbrough. All three men eventually became
prosecution witnesses at his trial for Griffin's murder.
Avery's Brady claims are premised on the failure
by Milwaukee detectives to disclose details about their
interrogations of these jailhouse informants-evidence that
could have been used to impeach the informants when they
testified at trial. For present purposes, the defendants do
not contest the factual basis for Avery's Brady
claims, so the following account is his version of events.
Hernandez and Katherine Hein interviewed Randolph in prison
in October 2003. The two detectives supplied him with
details about the Griffin homicide, told him to point the
finger at Avery, and promised in return to help him win a
reduced sentence. Randolph eventually succumbed to the
pressure; he told them that Avery had admitted that he killed
Griffin. The detectives prepared reports to that effect but
omitted facts about the interrogation that could have been
used for impeachment purposes. Randolph was called as a
prosecution witness at Avery's murder trial but refused
to perjure himself by repeating the statement he gave to the
detectives. The prosecution was permitted to introduce the
detectives' reports into evidence, so the jury heard
Randolph's incriminating statement anyway-without the
details about the interrogation that might have caused the
jurors to doubt its reliability.
story line on Kent is similar. Detectives coached and
pressured him on multiple occasions over several years: in
phone calls from Detective Kevin Armbruster; in an interview
with Detectives Armbruster and Timothy Heier; in an interview
with Detectives Hernandez and Hein; in another meeting with
Detective Heier. The upshot is that like Randolph, Kent
eventually gave in and said that Avery told him he strangled
Griffin to death. Kent testified to that effect at
Avery's trial. Again, the circumstances of the
interrogation- that the detectives coached and pressured Kent
to implicate Avery-were not disclosed to the defense.
Armbruster and Heier were the first to question Kimbrough,
and Detectives Hein and Hernandez conducted a follow-up
interview. As with Randolph and Kent, the detectives fed
Kimbrough details about the Griffin murder and pressured him
to implicate Avery. They eventually got what they were
looking for: Kimbrough told them that Avery admitted that he
killed Griffin. Kimbrough later recanted this statement and
tried to back out of testifying at Avery's trial, but
Detective Heier told him that he "had to" testify.
Kimbrough did as he was told; he took the stand and testified
that Avery told him he killed Griffin. Neither the
recantation nor the facts about Kimbrough's interrogation
were disclosed to the defense.
completed his narcotics sentence in June 2004 and was
released from prison. Three months later he was arrested and
charged with Griffin's murder. Trial was held in March
2005. Detectives Phillips and Hernandez testified about
Avery's confession; their reports were also admitted. As
we've noted, Kent and Kimbrough testified that Avery told
them he strangled Griffin. And the prosecution introduced the
police reports ...