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Bolden v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

August 9, 2019

Eddie L. Bolden, Plaintiff,
City of Chicago, James Oliver, Angelo Pesavento, and Edward Siwek, Defendants.


          Manish S. Shah, United States District Judge.

         Plaintiff Eddie Bolden was wrongfully convicted of murder and attempted murder. Now exonerated, Bolden seeks damages from the police officers whose investigation led to his imprisonment. One of Bolden's claims is that defendants violated his Fourteenth Amendment right to due process by destroying, suppressing, and fabricating evidence. Defendants move for summary judgment on that claim. For the reasons below, the motion is granted in part, denied in part.

         I. Legal Standards

         Summary judgment is appropriate if defendants show that there is no genuine dispute as to any material fact and that they are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). There is a genuine dispute over a material fact if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). As the movants, defendants bear the burden of establishing that the summary judgment standard is met, but Bolden must show evidence to establish every element of his claim for which he will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). I construe the facts in the light most favorable to Bolden and draw reasonable inferences from them in his favor. Laborers' Pension Fund v. W.R. Weis Co., Inc., 879 F.3d 760, 766 (7th Cir. 2018).

         II. Facts

         On January 29, 1994, someone murdered Irving Clayton and Derrick Frazier and shot Clifford Frazier, Derrick's brother. [266] ¶¶ 1, 6, 9, 37.[1] On the day of the shootings, the three victims met with Anthony Williams (or Ant, for short) so that Clayton and Derrick[2] could sell him two kilograms of cocaine. [251] ¶¶ 6, 11. Ant was a governor in the Gangster Disciples. [251] ¶ 8. The men met at J&J Fish, a restaurant owned by Ant's family. [251] ¶¶ 7, 11; [266] ¶ 4. Derrick and Clayton handled the meeting, while Clifford guarded Clayton's car with the drugs. [251] ¶ 11; [266] ¶ 3. Clifford had two guns with him-a .40 caliber pistol and a Mac 11. [251] ¶ 90. At some point, another man joined the meeting. [251] ¶ 12. When and where the newcomer joined is disputed, but he eventually climbed into the backseat of Derrick's car, and Clayton, Derrick, and the man drove away to count the money. [251] ¶ 12. A few hours later, Derrick and Clayton were found in the car less than a mile away from the J&J Fish, both with multiple gunshot wounds to the backs of their heads. [251] ¶¶ 14-15; [266] ¶ 6. Both men died from their injuries. [251] ¶¶ 14- 15.

         As for Clifford, he had been waiting near J&J Fish. [266] ¶ 4. Clifford was standing outside his car when a man began shooting at him-Clifford returned fire. [251] ¶¶ 98-99; [266] ¶ 8. Bullets struck Clifford in the back and leg as he ran. [266] ¶ 9. The shooter caught up to Clifford, and the two men fought near J&J Fish. [266] ¶ 10. Eventually, the shooter fled, and Clifford entered the restaurant. [266] ¶¶ 10- 11. Someone called 911, and the police responded to the scene. [266] ¶¶ 18, 148.

         A. The Investigation

         Defendants are Chicago police officers who investigated the shootings. [251] ¶¶ 3-4. Angelo Pesavento and Ed Siwek were detectives assigned to the investigation, and James Oliver was a gang crimes specialist who assisted them. [251] ¶¶ 3-4.[3]

         The Chicago Police Department notified all detectives about its investigative file policy. [266] ¶ 191. The policy required detectives investigating homicides to “record and preserve all relevant information during their investigations” and to keep one central, official file that included all reports, notes (including handwritten ones), and other materials generated or obtained during the investigation. [266] ¶¶ 193, 196. The thought was that the policy would help ensure officers' compliance with their disclosure obligations, since the file-containing everything-would be turned over to the prosecution and, in turn, the defense. [266] ¶¶ 193-94. Detectives were also responsible for keeping each other updated on evidence they found. [266] ¶ 19.

         1. Pesavento and Karl's Witness Interviews

         Detectives Pesavento and Karl interviewed several witnesses on the day of the shootings, and the next day, they prepared a typed supplementary report to summarize their investigation up to that point. [266] ¶ 75. The report included details about the some of the witnesses like their ages, birthdates, addresses, and phone numbers. [266] ¶ 75.

         One of the witnesses was Lee Williams, who, according to the report, said he saw a car pull over in front of his house and then saw a man in the backseat shoot the two men in the front seats. [251] ¶ 17. The report says Lee described the shooter as a black man in his early twenties, wearing dark clothing. [251] ¶ 17. At trial, Lee's story was different. Lee testified that though he had seen the car, he never saw a shooting or the car's driver, and that he told the police he saw someone get out of the backseat and walk away but could not tell the person's gender or race. [266] ¶ 79.

         The Pesavento-Karl report also summarizes interviews with witnesses from J&J Fish, including Tenesha Gatson, Edna and James Williams (Ant's parents), Maurice Stewart, and David McCray. [251] ¶ 37; [266] ¶¶ 68-70. The report says that Gatson told detectives someone named “Lynier” had entered J&J Fish earlier in the day to speak with Ant because his pager was broken, that Lynier had been directed to the next-door pager shop, that Lynier and Ant later spoke inside J&J Fish for 15 minutes, and that Ant then left and Lynier stayed at J&J Fish. [251] ¶ 39; [266] ¶ 82. It notes that Gatson said Lynier had a light complexion. [266] ¶ 81. Lynier is Bolden's middle name and nickname. [266] ¶ 73. At trial, Gatson testified that-contrary to the report-she did not tell the detectives that Lynier had come into J&J Fish with a broken pager looking for Ant, that he was directed to the pager shop, or that he spoke with Ant for 15 minutes. [266] ¶ 83. Instead, she had told the detectives that she saw Lynier and Ant speak at some point (but she did not know how long) and that Ant left some time after Clifford entered but before Lynier left. [266] ¶ 83. And years later, in her deposition for this case, Gatson testified that she never said Lynier had a light complexion. [266] ¶ 81.

         The report says that Edna and James denied witnessing anything and had nothing helpful to say. [251] ¶ 38. At trial, Edna testified that the detectives never asked her who the shooter was or who was in J&J Fish before the shooting and that she told the detectives that she saw a man run into the restaurant with a gun in his hand. [251] ¶¶ 38, 120. As for the other J&J Fish witnesses-Stewart and McCray- the report says that neither saw anything. [251] ¶¶ 41-42.

         2. Clifford Frazier

         Clifford-who survived the shooting-was the main witness of the night's events, and he was interviewed several times. Officer Barbara Temple first interviewed Clifford on the scene at J&J Fish, where he did not provide a description of the shooter. [251] ¶ 21. According to Officer Temple, Clifford said that he had a gun that he dropped outside on the sidewalk, though Clifford denies telling her that. [266] ¶ 22.

         Clifford was later taken to the hospital, where Officer Oliver interviewed him, together with one or two other officers. [251] ¶ 30. Officer Willis wrote a report summarizing the interview, and the parties dispute whether Officer Willis himself participated in the interview or if his report was only relating information he gathered from other officers. [251] ¶ 31; [266] ¶¶ 24, 181. Officer Willis's report describes the shooter as a black male, about 25 years old, wearing a white coat, between 5 feet 10 inches and 6 feet 1 inch tall, and with a medium-toned complexion. [251] ¶ 31. The report also notes that Clifford was informed of his Miranda rights. [266] ¶ 25. According to the report, Clifford said that on the night of the shootings he was acting as security for the drug transaction, and Ant, Derrick, and Clayton met inside J&J Fish to discuss the terms. [254-8] at 2; [266] ¶¶ 27-28. “A lone offender” left the restaurant with Derrick and Clayton, in the back seat of Derrick's car. [254-8] at 2. The offender later returned alone, said “freeze, don't move, ” and he and Clifford began shooting at one another. [254-8] at 2. Clifford ran, and the offender got into a physical fight with him, where the offender “beat [Clifford] about the head and body with his weapon the offenders.” [254-8] at 2-3. Clifford broke loose and ran into J&J Fish, where David McCray took Clifford's .40 caliber pistol and hid it under an ice machine. [254-8] at 3.

         Detective Baker also interviewed Clifford at the hospital. [251] ¶ 33; [266] ¶ 32. Detective Baker took notes, and Detective Pesavento used those notes (at least in part) to include a summary of the interview in the Pesavento-Karl supplementary report. [266] ¶¶ 33, 84. Detective Pesavento's summary varies from Detective Baker's notes in a couple of ways. The summary says that Clifford said he got a good look at the shooter and that the shooter's gun looked like the one Clifford had in his car, but those details are not in Detective Baker's notes. [266] ¶ 85. And though Detective Baker notes that the shooter was clean shaven and wearing a light-colored coat, Detective Pesavento did not include those details in his summary. [266] ¶ 86.

         The reports of Detective Baker's interview of Clifford relay a similar story to the one described in the Willis report, with a little more detail. Again, Clifford told the police that he went with Derrick and Clayton to sell cocaine. [254-4] at 6. Derrick gave Clifford two guns and told him to shoot anyone who came near the car he was guarding. [254-4] at 6. Derrick and Clayton went inside J&J Fish, and they came out with a black male who was tall, thin, had a light complexion, and was in his early twenties. [254-4] at 6. After they drove away, Clifford went inside a nearby Harold's Chicken to get some food, and he sat in his car eating it. [254-4] at 6. Two men were watching Clifford, which made him nervous, so Clifford got out of the car with one of his guns and pretended to check under the hood. [254-4] at 6. Clifford was there when a man came running, shooting at him. [254-4] at 6. Clifford ran away as they exchanged fire but then fell. [254-4] at 6. The shooter caught up to Clifford and began hitting him on the head with “his” gun, until Clifford was able to wrestle the gun away from the shooter. [254-4] at 6. At this time, Clifford recognized the shooter as the same person who had earlier driven away with Derrick and Clayton. [254-4] at 6. When Clifford got the gun from the shooter, the shooter fled, and Clifford dropped the gun on the street and kept his own. [254-4] at 6. Clifford then went into J&J Fish, where he was told to drop his gun and a black man with a dark complexion kicked it under a table. [254-4] at 6.

         Another officer-Officer Higgins-prepared a report that said, “Derrick Frazier informed officers … that [Ant] was involved in this incident and that Lynier was with Williams prior to the double murder.” [266] ¶ 87. The report's reference to Derrick was a mistake-Derrick was dead, and Officer Higgins meant to attribute the information to Clifford. [266] ¶ 88. And though the report suggests that Clifford named Lynier, Clifford did not at the time claim to know the name (or nickname) of the shooter. [266] ¶ 88.

         Clifford also had other interactions with the police investigating the case. Officers recovered cocaine and firearms from Clifford's home. [266] ¶¶ 61-62. Officer Oliver asked Clifford for information on Derrick and Clayton's drug supplier, though the discussion was not fruitful. [266] ¶ 161. Clifford told the police that Clayton's fiancée had a gun and that she had information about the drug supplier. [266] ¶ 162. Clifford once left a prosecutor a message saying that a public defender had tried to speak to him, but Clifford did not say anything. [266] ¶ 165. An officer may have accompanied Clifford to a funeral. [266] ¶ 163. And when Bolden was charged, defendants asked the prosecutor not to charge him with any charges that involved Clifford as a victim, though the prosecutors later added one. [266] ¶ 164.

         3. Clifford's .40 Caliber Gun

         Officer Willis found Clifford's .40 caliber pistol at J&J Fish. [251] ¶ 36. McCray-one of the witnesses from J&J Fish-was arrested and charged with the unlawful use of a firearm for hiding it. [251] ¶ 72. The inventory report for the gun notes that there was blood on it, and it lists Clifford's name in the fields for both owner and arrestee. [251] ¶ 70. The listed charge is unlawful use of a weapon. [251] ¶ 70. The inventory report contains a field saying, “Hold for Investigation and/or Evidence, ” with a box and space for the investigating officer's name, star number, and unit next to it. [254-24] at 2. Officer Willis filled in his information, but the box was not checked. [254-24] at 2; [266] ¶ 59.

         The state disclosed the gun as physical evidence that might be used in Bolden's trial, and Bolden's trial attorney asked that it be preserved, but in March 1994, the court presiding over McCray's criminal case ordered that the gun be destroyed. [251] ¶ 73; [266] ¶ 51.

         4. Cynthia Steward

         Cynthia Steward was Clayton's fiancée. [266] ¶ 92. On the night Clayton was murdered, Steward told officers the shootings may have been a gang hit by the Gangster Disciples and that shortly before the murders, someone named Andre Kimbrough told her that Ant had asked him to carry out a hit on Clayton and Derrick. [251] ¶ 44.

         The next day, officers, including Officer Oliver and maybe Detective Karl, went to Steward's home that she shared with Clayton to conduct a search. [266] ¶ 100. They asked Steward to give them Clayton's keys, including a key to a safe deposit box, and Officer Oliver threatened that she could lose her children or be arrested if she did not cooperate. [251] ¶ 45; [266] ¶ 103. The officers searched the house for Clayton's documents and said they were looking for (among other things) bank records that would show where he kept the deposit box. [266] ¶ 102. The officers wrote down phone numbers they got from some of Clayton's documents and took some of the documents with them. [266] ¶¶ 101-02.

         Later, officers, including Detectives Siwek and Karl, interviewed Steward at the police station. [266] ¶ 92.[4] Detectives Siwek and Karl summarized the hours-long interview in a four-paragraph report, noting that Steward said Clayton and Frazier sometimes sold drugs to Ant and Clayton told her they were going to do so on the day of the murders. [266] ¶ 92. But that was not all Steward told the detectives during the interview. [266] ¶ 93. Steward also told the detectives what she had said on the night of the shootings-that Ant and others had solicited Kimbrough for a hit on Clayton and Derrick. [266] ¶ 93. Kimbrough told Steward that he did not agree to do it but gave her the names of others who might have been approached. [266] ¶ 93. Steward gave the detectives those names, which did not include Bolden's. [266] ¶ 94. Steward also said that Clayton was with her when Kimbrough gave her the disturbing news, so Clayton and Derrick-aware of the hit out on them-were extra cautious on the day they were murdered. [266] ¶ 95. Steward said Clayton and Derrick would not have let someone they did not know well into their car. [266] ¶ 95. None of Steward's information about the hit made it into the detectives' report. [266] ¶ 97.

         5. Lineup

         About a month after the shootings, Bolden was asked to participate in a lineup at the police station. [251] ¶ 61. Clifford had earlier been asked to identify his shooter in a photo array (which included Bolden's photo), but Clifford said he needed to see the shooter in person to make the identification. [251] ¶ 60. Bolden agreed to participate in the lineup, and he was accompanied by a retained attorney. [266] ¶¶ 118, 120-21. According to Bolden, while he and his attorney were waiting for the lineup to begin, Officer Oliver walked Clifford right by them, and Clifford looked at Bolden. [266] ¶ 122. At around the same time, either Bolden or his attorney told Detective Karl that Bolden was the one who made the 911 call from J&J Fish to report the shooting. [251] ¶ 62; [266] ¶ 124.

         Detectives Pesavento, Siwek, and Karl conducted the lineup of Bolden and four other men. [266] ¶ 125. Clifford had described the shooter as being about 20 or 21 years old, 6 feet tall, and thin. [266] ¶ 126. Bolden-24 years old, 6 feet 2 inches tall, and skinny-was the only person in the lineup close to meeting all of those characteristics. [266] ¶ 126. For example, three of the four fillers were 5 feet 9 inches or shorter, and the only other man who was above 6 feet tall weighed 260 pounds. [256-24] at 3. From there, the parties dispute what happened in the lineup room. According to Bolden, he could see Clifford through the tinted window that separated them. [266] ¶ 136. Bolden says that he saw Clifford point to one of the lineup fillers and start to walk away, prompting Detective Karl to open the door, look at Bolden, and say, “you are Eddie Bolden, right?” [266] ¶¶ 138-39. Bolden also says he saw Clifford and an officer move in front of him, where the officer said something to Clifford, and Clifford shook his head no and walked away. [266] ¶ 140. The officer then directed Clifford back to the window, and Clifford shook his head yes to identify Bolden. [266] ¶ 140. Defendants deny that these events occurred and that Bolden was capable of seeing them through the glass.

         Bolden was arrested after the lineup. [266] ¶ 143. In his post-arrest interview, Bolden repeated that he was the one who had called 911 when Clifford was injured, though Detective Pesavento does not recall him saying that. [266] ¶ 143.[5] Bolden told Detective Karl to bring Officer Oliver into the interview room because, according to Bolden, Officer Oliver knew that he was in J&J Fish when the police arrived. [266] ¶ 143. Detective Karl kicked the door shut and said that Officer Oliver did not remember Bolden. [266] ¶ 143. Later on, Bolden was waiting in an interview room when Detective Kill looked into the room, smiled, and said, “he's bald.” [266] ¶ 143.

         6. 911 Recording

         The police department only kept 911 recordings for 30 days unless someone requested that they be preserved. [266] ¶ 147. There was a form that detectives could fill out and submit if they wanted to preserve a 911 recording. [266] ¶ 153. Detective Pesavento knew that he could have obtained the recording of the 911 call from J&J Fish, but he never did. [266] ¶ 155. The department also kept dispatch cards with the 911 dispatchers' notes about the call, including the caller's name if possible. [251] ¶ 76; [266] ¶ 151. Dispatch cards were retained for at least 60 days. [266] ¶ 156.

         On March 4, 1994, Bolden's trial attorney subpoenaed the 911 tapes and dispatch cards for the shootings. [251] ¶ 75. The police department responded to the subpoena by saying that it was too late-Bolden's subpoena was sent outside of the retention period for tape recordings. [251] ¶ 77. The letter did not specifically address the dispatch cards, instead noting generally that “[Bolden's] request for information [could] not be accommodated.” [266] ¶ 152.

         B. The Trial

         In October 1996, a jury heard the case against Bolden. [266] ¶ 167. Bolden was represented by a public defender who had taken over representation sometime after Bolden's initial appearance. [266] ¶ 150. The prosecution's theory was that the drug transaction was a ruse orchestrated by Ant, meant to lure the victims somewhere where Bolden could shoot them. [266] ¶ 174. By this time, Ant was in a drug-induced coma and unavailable to testify. [251] ¶ 85. The prosecution called Detective Pesavento to testify about the lineup procedure, and Detectives Pesavento and Karl were both called to rebut testimony that the lineup was tainted. [266] ¶ 171. Neither Detective Siwek nor Officer Oliver testified. [266] ¶ 173.

         The prosecution's main witness was Clifford, who identified Bolden as the one who had climbed into his brother's car and later come back to shoot Clifford. [266] ¶ 175. Clifford testified that on the night of the shootings, Clayton and Derrick came to his house to get two kilograms of cocaine, and the three of them drove to J&J Fish. [251] ¶¶ 88-89. He said that he brought two guns with him, both of which he got from his house. [251] ¶ 90. A detail not captured in the police reports, Clifford testified that he had entered the J&J Fish with Clayton and Derrick to meet with Ant and that Ant asked him to leave because he was armed, so Clifford went across the street to Harold's Chicken. [266] ¶ 176. From there, Clifford said he saw Bolden exit the next-door beeper store, enter J&J Fish, and shake hands with everyone. [251] ¶¶ 91-92; [266] ...

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