United States District Court, N.D. Illinois, Eastern Division
Eddie L. Bolden, Plaintiff,
City of Chicago, James Oliver, Angelo Pesavento, and Edward Siwek, Defendants.
MEMORANDUM OPINION AND ORDER
S. Shah, United States District Judge.
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.
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).
January 29, 1994, someone murdered Irving Clayton and Derrick
Frazier and shot Clifford Frazier, Derrick's brother.
 ¶¶ 1, 6, 9, 37. On the day of the shootings, the
three victims met with Anthony Williams (or Ant, for short)
so that Clayton and Derrick could sell him two kilograms of
cocaine.  ¶¶ 6, 11. Ant was a governor in the
Gangster Disciples.  ¶ 8. The men met at J&J
Fish, a restaurant owned by Ant's family. 
¶¶ 7, 11;  ¶ 4. Derrick and Clayton
handled the meeting, while Clifford guarded Clayton's car
with the drugs.  ¶ 11;  ¶ 3. Clifford had
two guns with him-a .40 caliber pistol and a Mac 11. 
¶ 90. At some point, another man joined the meeting.
 ¶ 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.  ¶ 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.  ¶¶ 14-15; 
¶ 6. Both men died from their injuries. 
¶¶ 14- 15.
Clifford, he had been waiting near J&J Fish.  ¶
4. Clifford was standing outside his car when a man began
shooting at him-Clifford returned fire.  ¶¶
98-99;  ¶ 8. Bullets struck Clifford in the back
and leg as he ran.  ¶ 9. The shooter caught up to
Clifford, and the two men fought near J&J Fish. 
¶ 10. Eventually, the shooter fled, and Clifford entered
the restaurant.  ¶¶ 10- 11. Someone called
911, and the police responded to the scene. 
¶¶ 18, 148.
are Chicago police officers who investigated the shootings.
 ¶¶ 3-4. Angelo Pesavento and Ed Siwek were
detectives assigned to the investigation, and James Oliver
was a gang crimes specialist who assisted them. 
Chicago Police Department notified all detectives about its
investigative file policy.  ¶ 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.  ¶¶ 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.  ¶¶ 193-94. Detectives were
also responsible for keeping each other updated on evidence
they found.  ¶ 19.
Pesavento and Karl's Witness Interviews
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.  ¶ 75. The report included details
about the some of the witnesses like their ages, birthdates,
addresses, and phone numbers.  ¶ 75.
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.  ¶ 17. The report says Lee described the
shooter as a black man in his early twenties, wearing dark
clothing.  ¶ 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.
 ¶ 79.
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.  ¶ 37;  ¶¶ 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.  ¶ 39;  ¶ 82. It notes that Gatson
said Lynier had a light complexion.  ¶ 81. Lynier
is Bolden's middle name and nickname.  ¶ 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.  ¶ 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.  ¶
83. And years later, in her deposition for this case, Gatson
testified that she never said Lynier had a light complexion.
 ¶ 81.
report says that Edna and James denied witnessing anything
and had nothing helpful to say.  ¶ 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.  ¶¶ 38,
120. As for the other J&J Fish witnesses-Stewart and
McCray- the report says that neither saw anything. 
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.
 ¶ 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.  ¶ 22.
was later taken to the hospital, where Officer Oliver
interviewed him, together with one or two other officers.
 ¶ 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.
 ¶ 31;  ¶¶ 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.  ¶ 31. The report also notes that
Clifford was informed of his Miranda rights. 
¶ 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;  ¶¶
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.
Baker also interviewed Clifford at the hospital.  ¶
33;  ¶ 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.  ¶¶ 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.  ¶ 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.  ¶ 86.
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.
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.”  ¶ 87.
The report's reference to Derrick was a mistake-Derrick
was dead, and Officer Higgins meant to attribute the
information to Clifford.  ¶ 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.  ¶ 88.
also had other interactions with the police investigating the
case. Officers recovered cocaine and firearms from
Clifford's home.  ¶¶ 61-62. Officer Oliver
asked Clifford for information on Derrick and Clayton's
drug supplier, though the discussion was not fruitful. 
¶ 161. Clifford told the police that Clayton's
fiancée had a gun and that she had information about
the drug supplier.  ¶ 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. 
¶ 165. An officer may have accompanied Clifford to a
funeral.  ¶ 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.  ¶ 164.
Clifford's .40 Caliber Gun
Willis found Clifford's .40 caliber pistol at J&J
Fish.  ¶ 36. McCray-one of the witnesses from
J&J Fish-was arrested and charged with the unlawful use
of a firearm for hiding it.  ¶ 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.  ¶ 70. The listed charge is unlawful use
of a weapon.  ¶ 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;  ¶ 59.
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.  ¶ 73;  ¶ 51.
Steward was Clayton's fiancée.  ¶ 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.  ¶ 44.
next day, officers, including Officer Oliver and maybe
Detective Karl, went to Steward's home that she shared
with Clayton to conduct a search.  ¶ 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.  ¶ 45;  ¶ 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.  ¶ 102. The
officers wrote down phone numbers they got from some of
Clayton's documents and took some of the documents with
them.  ¶¶ 101-02.
officers, including Detectives Siwek and Karl, interviewed
Steward at the police station.  ¶ 92. 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.  ¶
92. But that was not all Steward told the detectives during
the interview.  ¶ 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.  ¶ 93. Kimbrough told
Steward that he did not agree to do it but gave her the names
of others who might have been approached.  ¶ 93.
Steward gave the detectives those names, which did not
include Bolden's.  ¶ 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. 
¶ 95. Steward said Clayton and Derrick would not have
let someone they did not know well into their car. 
¶ 95. None of Steward's information about the hit
made it into the detectives' report.  ¶ 97.
month after the shootings, Bolden was asked to participate in
a lineup at the police station.  ¶ 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.  ¶ 60. Bolden agreed to participate
in the lineup, and he was accompanied by a retained attorney.
 ¶¶ 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.  ¶ 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.  ¶ 62;  ¶ 124.
Pesavento, Siwek, and Karl conducted the lineup of Bolden and
four other men.  ¶ 125. Clifford had described the
shooter as being about 20 or 21 years old, 6 feet tall, and
thin.  ¶ 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.  ¶ 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.  ¶ 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?”
 ¶¶ 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.  ¶ 140. The officer then directed
Clifford back to the window, and Clifford shook his head yes
to identify Bolden.  ¶ 140. Defendants deny that
these events occurred and that Bolden was capable of seeing
them through the glass.
was arrested after the lineup.  ¶ 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. 
¶ 143. 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.  ¶ 143. Detective Karl kicked
the door shut and said that Officer Oliver did not remember
Bolden.  ¶ 143. Later on, Bolden was waiting in an
interview room when Detective Kill looked into the room,
smiled, and said, “he's bald.”  ¶
police department only kept 911 recordings for 30 days unless
someone requested that they be preserved.  ¶ 147.
There was a form that detectives could fill out and submit if
they wanted to preserve a 911 recording.  ¶ 153.
Detective Pesavento knew that he could have obtained the
recording of the 911 call from J&J Fish, but he never
did.  ¶ 155. The department also kept dispatch
cards with the 911 dispatchers' notes about the call,
including the caller's name if possible.  ¶ 76;
 ¶ 151. Dispatch cards were retained for at least
60 days.  ¶ 156.
March 4, 1994, Bolden's trial attorney subpoenaed the 911
tapes and dispatch cards for the shootings.  ¶ 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.  ¶ 77.
The letter did not specifically address the dispatch cards,
instead noting generally that “[Bolden's] request
for information [could] not be accommodated.” 
October 1996, a jury heard the case against Bolden. 
¶ 167. Bolden was represented by a public defender who
had taken over representation sometime after Bolden's
initial appearance.  ¶ 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.  ¶ 174. By this time, Ant was in
a drug-induced coma and unavailable to testify.  ¶
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.  ¶ 171. Neither Detective Siwek nor
Officer Oliver testified.  ¶ 173.
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.  ¶ 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. 
¶¶ 88-89. He said that he brought two guns with
him, both of which he got from his house.  ¶ 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.  ¶ 176. From there, Clifford said he saw
Bolden exit the next-door beeper store, enter J&J Fish,
and shake hands with everyone.  ¶¶ 91-92;