David Camm v. Stanley Faith ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1440
DAVID R. CAMM,
Plaintiff-Appellant,
v.
STANLEY O. FAITH, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, New Albany Division.
No. 4:14-cv-00123 — Tanya Walton Pratt, Judge.
____________________
ARGUED OCTOBER 30, 2018 — DECIDED SEPTEMBER 10, 2019
____________________
Before WOOD, Chief Judge, and SYKES and BARRETT, Circuit
Judges.
SYKES, Circuit Judge. This case arises from a heinous triple
murder that occurred almost 19 years ago in Georgetown,
Indiana, a small town near the Kentucky border. The plain-
tiff is David Camm, a former state trooper who was twice
convicted of the crimes but was acquitted after a third trial.
He then filed this suit for damages for the years he spent in
custody.
2 No. 18-1440
There are many factual disputes. Construing the evi-
dence in Camm’s favor, as we must at this stage, the claims
center on the following version of events. Camm came home
on the night in question and found his wife and two young
children shot to death in the garage. Two days later law-
enforcement officers obtained a warrant for his arrest,
relying almost exclusively on the observations of Robert
Stites—a plainly unqualified forensic assistant who was not
trained to do anything more than photograph evidence.
Taking a far more active role in the investigation, Stites told
the investigators that several bloodstains on Camm’s T-shirt
were “high velocity impact spatter,” indicating that Camm
was present and in close proximity when one or more of the
victims was struck by a bullet. Investigators and prosecutors
exaggerated Stites’s qualifications in a probable-cause
affidavit and at trial, and a jury found Camm guilty. The
judgment was reversed on unrelated grounds, and on retrial
Camm was again convicted. That judgment too was re-
versed. A jury found him not guilty the third time around.
He was released after 13 years in custody.
This lawsuit under 42 U.S.C. § 1983 followed. The de-
fendants are several investigators, two prosecutors, and
Stites and his boss, who backed up his assistant’s opinions.
Camm alleges that the defendants willfully or recklessly
made false statements in three probable-cause affidavits that
led to his arrest and continued custody while he awaited
trial and retrial. Though the parties and the district judge
referred to this as a claim for malicious prosecution, we’ve
since explained that “malicious prosecution” is the wrong
label. It’s a Fourth Amendment claim for wrongful arrest
and detention. The suit also raises a claim of evidence sup-
pression in violation of Brady v. Maryland, 373 U.S. 83 (1963).
No. 18-1440 3
Finally, Camm alleges that the defendants deprived him of a
fair trial by inducing the real killer Charles Boney to give a
false account implicating him in the murders. The judge
entered summary judgment for the defendants.
We reverse in part. Camm presented enough evidence to
proceed to trial on the Fourth Amendment claim, but only as
it relates to the first probable-cause affidavit. A trial is also
warranted on the following aspects of the Brady claim:
whether some of the defendants suppressed evidence of
Stites’s lack of qualifications and their failure to follow
through on a promise to run a DNA profile through a law-
enforcement database to check for a match. In all other
respects, we affirm the judgment.
I. Background
Camm appeals from a summary judgment, so our ac-
count of the facts considers the evidence and draws all
reasonable inferences in the light most favorable to him.
Leaver v. Shortess, 844 F.3d 665, 668 (7th Cir. 2016). In other
words, our factual narrative reflects Camm’s theory of the
case to the extent that the evidence would permit a reasona-
ble jury to credit it.
In the fall of 2000, Camm had recently resigned his job as
an Indiana State Trooper to pursue another line of work. On
the evening of September 28, he went to his church to play
basketball. Ten other players can attest that he was at the
gym from around 7 to 9:25 p.m. On arriving home Camm
discovered his wife, Kimberly, lying in a pool of blood on
the garage floor. She had been shot in the head. He then
found his two children—seven-year-old Bradley and five-
year-old Jill—in the backseat of his wife’s Bronco. Brad had a
4 No. 18-1440
gunshot wound to the chest; Jill was shot in the head. All
three were dead. Camm thought Brad might still be alive, so
he reached over Jill’s body, pulled his son from the Bronco,
and began performing CPR. As he removed Brad’s body
from the car, some of Jill’s blood ended up on the front of his
T-shirt.
After a futile attempt to resuscitate his son, Camm called
the Indiana State Police. Stan Faith, the elected Floyd County
prosecutor, arrived at about 10 p.m., and he soon took
control of the investigation. Faith made an immediate deci-
sion to hire Rodney Englert, a private forensics analyst based
in Oregon. Englert specializes in blood-spatter analysis, a
subjective field he now admits is only partly scientific.
Englert wasn’t able to travel to Indiana right away, so he
sent his assistant Robert Stites. Englert told Faith that Stites
would be there only to document evidence and take photos.
That limitation was well-founded: Stites has since admitted
that he is not a crime-scene reconstructionist, has never
taken a basic bloodstain-analysis course, and has almost no
scientific background of any kind.
Nonetheless, Stites did far more than photograph. He
told the investigators that the blood on Camm’s shirt was
“high velocity impact spatter” (“HVIS”), which occurs only
in the presence of a gunshot. Rather than wait for Englert to
analyze the pattern in person, Stites called his boss and
described the spots of blood over the phone. The parties
dispute what Englert said in response: Englert testified in
deposition that he never would have confirmed Stites’s
finding over the phone. Stites, however, testified that after
he described the spots, Englert agreed that it met the criteria
for HVIS. Either way, Stites returned from the phone call
No. 18-1440 5
and told the investigators that he was 100% certain about his
HVIS finding.
He then went further, finding HVIS bloodstains on the
garage door, shower curtains, breezeway siding, a mop, and
a jacket. In hindsight only the stain on the T-shirt turned out
to be blood, much less HVIS. Stites also told the officers that
given its viscosity, he could tell that the blood was manipu-
lated by a high pH cleaning substance. He said this even
though he had never been to a crime scene where fresh
blood was present. Nor had he ever seen serum separation,
the natural and innocent phenomenon that actually ex-
plained the blood’s viscosity. Jim Niemeyer, the most expe-
rienced detective on the case, quickly realized that Stites was
not qualified and did not belong at the crime scene. But
when Niemeyer ran his concerns up the chain of command,
he was told that Stan Faith wanted Stites to be involved.
Meanwhile, lead case officer Sean Clemons was inter-
viewing Camm’s aunt and neighbor, Mrs. Ter Vree. She told
him that between 9:15 and 9:30 p.m.—roughly the time
Camm returned from playing basketball—she heard three
loud noises that sounded like someone pounding a fist on a
car. She did not tell Clemons that the noises sounded like
gunfire, nor did she ever think they did. Soon after Camm’s
arrest, Clemons became aware that Camm had punched his
tailgate several times when he discovered his murdered
family.
Crucially, Faith and the investigators also found a prison-
issue sweatshirt in the garage. A nickname was written on
the collar. Most people involved in the case agree that it said
“Backbone,” but Clemons and Faith insist it could have said
“Rack One.” The Indiana Department of Corrections has a
6 No. 18-1440
database of inmate nicknames, but Faith claims he was not
aware of it at the time. Regardless, no one checked with the
Department to try to match the nickname to a former pris-
oner. The final important piece of evidence at the scene was
a palm print on Kimberly Camm’s car. At the time the
investigators did not think the fingerprints were clear
enough to run through their system for a match.
Faith wrote a probable-cause affidavit for Camm’s arrest,
which Clemons signed. The facts recounted in the affidavit
were largely drawn from Stites’s unqualified observations.
In addition, the affidavit stated that Mrs. Ter Vree heard
“three distinct sounds that can be interpreted as gunshots”
around the time Camm returned home from the church. But
she never said that. A judge approved the warrant, and
Camm was arrested and charged with murdering his wife
and children. The investigation continued, and Faith con-
sulted with other blood-spatter analysts regarding the blood
on Camm’s shirt. All agreed with the initial HVIS finding.
Before trial Michael McDaniel, Camm’s attorney, had the
“Backbone” sweatshirt tested by an independent lab in
Minnesota. The lab discovered a DNA profile on the shirt.
The Indiana State Police maintains a DNA identification
database called CODIS, but defense attorneys cannot access
it. McDaniel took the DNA profile to Faith and asked him to
run it through the database. Faith agreed to do so. After
McDaniel called back several times to get the results, Faith
told him that nothing came up. In reality Faith and Clemons
never ran the test at all.
In January 2002 Faith tried the triple-murder case to a ju-
ry, though the jurors were selected from Johnson County
because of extensive pretrial publicity. Stites and Englert
No. 18-1440 7
were among his key witnesses. Stites testified that he was a
crime-scene reconstructionist and was working on his
master’s degree and Ph.D. in fluid dynamics. Throughout
the trial Faith repeatedly referred to Stites as “professor.”
Stites also told the jury that he had investigated homicides
for the Army, Naval Intelligence, and the FBI.
Those statements were indisputably false. To start, Stites
is not a crime-scene reconstructionist. He has never pursued
a degree in fluid dynamics. In fact, he has never taken a
single course in the field. His only degree is in economics,
and while he did take a single chemistry course in college,
he flunked it. His education and training are so thin that
Faith had to talk him through the scientific method (such as
it was) prior to trial. Moreover, while Stites claimed to have
advised the nation’s top intelligence agencies, he had never
processed a single homicide scene before this one.
Nonetheless, Camm’s counsel chose not to seek exclusion
of Stites’s testimony because he thought the jury would
recognize his ineptitude and discredit the prosecution’s case
accordingly. Still, Camm and his counsel were unaware of
the true extent of Stites’s lies. Camm now argues that he
would have objected to Stites’s testimony had he known.
The jury found Camm guilty. Two years later the Indiana
Court of Appeals reversed and remanded for a new trial,
ruling that evidence of Camm’s marital infidelity had been
improperly admitted and the error was not harmless. Camm
v. State, 812 N.E.2d 1127, 1138 (Ind. Ct. App. 2004). Addi-
tional investigation ensued. By then Floyd County voters
had ousted Stan Faith as county prosecutor, electing Keith
Henderson instead. Henderson assumed responsibility for
the Camm case, and Gary Gilbert replaced Clemons as lead
8 No. 18-1440
case investigator. Henderson and Gilbert prepared and
submitted a second probable-cause affidavit, which included
many of the same details as the first with two notable addi-
tions. Gilbert wrote that Clemons told him that Camm
confessed on the night of the murders as investigators
collected evidence. According to Gilbert, Clemons told him
that Camm said, “This is what they do to you when you kill
your wife and kids.” There is a sharp dispute about what
Camm actually said to Clemons, but one thing is certain: if
this statement was made, it was exceedingly odd that
Clemons did not think it significant enough to include in the
first probable-cause affidavit. The second important addition
was information that Camm had confessed to a jailhouse
informant.
Several months after Henderson and Gilbert submitted
the second affidavit, Gilbert made the most important
discovery of the case: the identity of the real killer. Gilbert
found the old DNA profile on the “Backbone” sweatshirt
and finally had it tested. The DNA matched that of Charles
Boney, a repeat violent offender with a history of attacking
women at gunpoint. Further investigation revealed that
Boney’s nickname was indeed Backbone, which a simple
phone call to the Department of Corrections would have
shown. Moreover, the fingerprints on Kimberly Camm’s car
matched Boney’s.
When investigators first questioned Boney about the
murders, he demanded to speak to counsel. In a bizarre
twist, he named Stan Faith, the original prosecutor, as his
attorney. Faith went into private practice after losing his
reelection bid to Henderson. In his new role, he had repre-
sented Boney in at least one case. The two were put in touch
No. 18-1440 9
through Boney’s mother, whom Faith has known since 1986
when he first ran for county prosecutor. Faith has testified
that while he knew Boney’s mother, he did not meet Boney
in person or learn his nickname until long after he investi-
gated and prosecuted the Camm case.
Alas, the discovery of the real killer did Camm more
harm than good. Investigators aggressively pursued a theory
that Boney merely helped Camm commit the murders; they
apparently never once considered the possibility that Boney
committed the murders alone. They interviewed Boney three
times covering more than 20 hours of interrogation, pressur-
ing him to implicate Camm. They suggested various connec-
tions between the two and proposed scenarios in which
Boney might have witnessed Camm shoot his family. They
also told him that he had to tell the whole story—translation:
implicate Camm—in order to avoid the death penalty.
Boney initially denied any involvement, and his story shift-
ed wildly during the interrogations. Eventually he took the
hint. He told the investigators that he brought the murder
weapon to the scene and was present when Camm commit-
ted the murders.
Gilbert then prepared a third probable-cause affidavit.
The most important additions were Boney’s statements.
With the inclusion of a second suspect, the prosecution’s
case now included a charge of conspiracy. Gilbert also
included information that a second jailhouse informant had
come forward and reported that Camm had confessed to the
crimes. The third affidavit also said that Camm called his
wife’s employer early the morning after the murders asking
about the details of collecting on her life-insurance policy.
10 No. 18-1440
Boney was charged with three counts of murder and one
count of conspiracy to commit murder. The case against him
was tried separately in December 2005, and the court in-
structed the jury on Indiana’s law of aiding a criminal
offense. Boney v. State, 880 N.E.2d 279, 286 (Ind. Ct. App.
2008). The jury found him guilty as charged. Id.In January 2006 the case against Camm was tried again,
this time in Warrick County. Boney’s presence at the murder
scene was undisputed, and Camm’s theory of defense was
that Boney committed the crimes alone. Camm v. State,
908 N.E.2d 215, 220 (Ind. 2009). Camm was again convicted.
This time the Indiana Supreme Court reversed because
Henderson introduced speculative and highly prejudicial
evidence that Camm molested his daughter. Id. at 228.
At some point after the second conviction, Henderson
accepted a contract to write a book about the case. He re-
ceived an advance check—though he never cashed it—and
wrote much of the manuscript. When Camm’s attorney
found out, he moved to have Henderson removed as prose-
cutor. Henderson fought the removal for more than two
years, leaving Camm in custody all the while. Eventually the
Indiana Court of Appeals removed Henderson and ordered
the appointment of a special prosecutor. See Camm v. State,
957 N.E.2d 205, 210–11 (Ind. Ct. App. 2011). The Indiana
Supreme Court later imposed a public reprimand for
Henderson’s professional misconduct. In re Henderson,
78 N.E.3d 1092, 1094 (Ind. 2017).
The case against Camm was tried a third time, again in
Warrick County. On October 24, 2013, the jury found him
not guilty. He was released the same day, after 13 years in
custody.
No. 18-1440 11
One year after his acquittal, Camm filed suit under § 1983
against Clemons, Gilbert, and several other investigators;
prosecutors Faith and Henderson; and Stites and Englert.1
The complaint raised a host of claims: “malicious prosecu-
tion” in violation of the Fourth and Fourteenth Amend-
ments, a due-process claim based on Brady violations and
“evidence fabrication,” a claim for violation of substantive
due process, a claim for conspiracy to violate Camm’s civil
rights, and various state-law claims. After lengthy discovery
the defendants moved for summary judgment. The judge
granted the motion in its entirety.
After briefly addressing principles of qualified and abso-
lute immunity, the judge took up the merits of the malicious-
prosecution claim. She held that probable cause existed
when all three probable-cause affidavits were written, so the
claim necessarily failed. Turning to the Brady claim, the
judge concluded that no material exculpatory evidence was
suppressed. Next up was the claim that investigators fabri-
cated Boney’s testimony by using coercive and suggestive
tactics to obtain it. The judge noted that coercive interroga-
tion tactics do not necessarily result in false statements, so
the alleged coercion did not alone establish a due-process
violation. Because no other evidence supported the allega-
tion of evidence fabrication, the judge ruled for the defend-
ants on this claim. The judge rejected the remaining claims
as well, but Camm does not seek their reinstatement so we
need say no more about them.
1 Camm also sued Floyd County under Monell v. Department of Social
Services of New York, 436 U.S. 658 (1978). The judge dismissed this claim
and Camm has not challenged that ruling.
12 No. 18-1440
II. Discussion
Three claims are at issue on appeal. The first is that the
defendants violated Camm’s Fourth Amendment rights by
including false statements in the probable-cause affidavits.
The second is that they violated Brady by suppressing three
categories of evidence: the extent of Stites’s lack of qualifica-
tions, the fact that the DNA on Boney’s sweatshirt was never
tested, and Henderson’s book deal. The final claim is that the
investigators “fabricated” Boney’s statement that he merely
supplied the gun and was present when Camm committed
the murders.
As a threshold matter, Stites and Englert argue that they
cannot be liable under § 1983 because they are private actors.
Private persons are considered state actors—that is, they are
deemed to have acted under color of state law and thus face
§ 1983 liability—in certain limited circumstances. “The first
is where the [S]tate effectively directs or controls the actions
of the private party such that the [S]tate can be held respon-
sible for the private party’s decision. … The second situation
is when the [S]tate delegates a public function to a private
entity.” Payton v. Rush–Presbyterian–St. Luke's Med. Ctr.,
184 F.3d 623, 628 (7th Cir. 1999); see also L.P. v. Marian Catho-
lic High Sch., 852 F.3d 690, 696 (7th Cir. 2017) (explaining that
a private person acts under color of state law when he is “a
willful participant in joint action with the State or its
agents”) (quotation marks omitted). Stites and Englert easily
qualify as state actors under these principles. Faith delegated
a public function when he hired them to investigate the
crime scene on behalf of Indiana law enforcement. And
throughout the relevant time period, Faith and Henderson
controlled their actions.
No. 18-1440 13
A. Fourth Amendment Claim
Before turning to the merits of Camm’s first claim, we
pause to clarify which constitutional right is at issue. Camm
has characterized this as a freestanding constitutional claim
for “malicious prosecution”; the district judge also used the
term “malicious prosecution” and situated the claim under
the Due Process Clause of the Fourteenth Amendment. As
we explained in Manuel v. City of Joliet, however, when a
plaintiff alleges that officials held him in custody before trial
without justification, “[m]alicious prosecution is the wrong
characterization. There is only a Fourth Amendment claim—
the absence of probable cause that would justify the deten-
tion.” 903 F.3d 667, 670 (7th Cir. 2018) (quotation marks
omitted). And we recently reiterated “that the Fourth
Amendment, not the Due Process Clause, governs a claim
for wrongful pretrial detention.” Lewis v. City of Chicago,
914 F.3d 472, 475 (7th Cir. 2019). Camm’s complaint cited
both the Fourth and Fourteenth Amendments, but properly
construed, the malicious-prosecution claim is really one for
wrongful arrest and detention in violation of the Fourth
Amendment.
“Probable cause exists to arrest a suspect if at the time of
arrest the facts and circumstances within the arresting
officer’s knowledge and of which he has reasonably trust-
worthy information would warrant a prudent person in
believing that the suspect had committed or was committing
an offense.” Gower v. Vercler, 377 F.3d 661, 668 (7th Cir. 2004)
(quotation marks and alteration omitted). When an arrest is
judicially authorized, as it was in this case, “we presume the
validity of [the] warrant and the information offered to
support it.” Whitlock v. Brown, 596 F.3d 406, 410 (7th Cir.
14 No. 18-1440
2010). But “the presumption may give way on a showing
that the officer who sought the warrant knowingly or inten-
tionally or with a reckless disregard for the truth[] made
false statements to the judicial officer and that the false
statements were necessary to the judicial officer’s determina-
tion.” Id. (quotation marks and alterations omitted).
Faith wrote the first probable-cause affidavit and
Clemons signed it. The affidavit contained just two facts
specifically pointing to Camm. The first was that “[t]he tee
shirt worn by David R. Camm … had high velocity blood
mist[,] which occurs in the presence of gunshot at the time of
the shooting.” This assertion, of course, came from Stites.
The second was that around the time Camm returned home,
his neighbor Mrs. Ter Vree heard “three distinct sounds that
can be interpreted as gunshots.” The remaining facts—for
instance, that the scene was manipulated by a high pH
substance—say no more about Camm than any other person.
While an identical warrant might suffice in a different
case, there is a wealth of evidence here that Stites, Englert,
Faith, and Clemons contributed false statements and with-
held crucial information, either intentionally or with reckless
disregard for the truth. So the presumption of validity must
give way.
Start with Stites. He, more than anyone, was aware of his
own lack of qualifications. He not only withheld that infor-
mation but went further, claiming that he could make com-
plex scientific conclusions at the scene of the crime with
100% certainty. He said this even though he had no relevant
education or training, had never been to a crime scene where
fresh blood was present, and had never processed a homi-
cide scene. A reasonable jury could find that his state-
No. 18-1440 15
ments—which formed the core of the affidavit’s inculpatory
information against Camm—were made intentionally or
with a reckless disregard for the truth.
The same is true of Englert. He was also aware that Stites,
his own assistant, was not qualified to give these opinions.
After all, Englert told Faith that Stites was there just to
photograph the scene. But after that initial phone conversa-
tion, Englert too withheld Stites’s lack of qualifications. Once
he became aware that Stites had done much more than take
photographs, he chose not to correct the false information.
Not only that, there is a material factual dispute about
whether Englert contributed to the problem by confirming
Stites’s HVIS conclusion over the phone without ever seeing
the T-shirt blood pattern in person. Englert—who once
attempted to justify his unscientific methods by insisting, “I
just know it when I see it”—knew that he could not identify
HVIS by verbal description alone. Yet Stites testified that he
did just that. Based on these facts, a reasonable jury could
find that Englert acted intentionally or with reckless disre-
gard for the truth.
The record also contains ample evidence that Faith acted
unlawfully. Based on his initial conversation with Englert,
Faith was aware that Stites was unqualified, yet he apparent-
ly told no one, including the judge who issued the warrant.
Instead, Faith wrote in the affidavit that Stites was a “crime
scene re-constructionist,” which he was not. More im-
portantly, Faith included in the affidavit Stites’s conclusion
regarding the HVIS pattern on Camm’s T-shirt when Englert
told Faith that Stites was just a photographer. Despite that
warning, Faith did nothing to confirm Stites’s opinions
before including them in the affidavit. The most charitable
16 No. 18-1440
spin on the evidence from Faith’s perspective is that he
accepted Stites’s representation that Englert verified the
HVIS finding over the phone without having seen the blood
pattern. But no reasonable investigator would think that a
verbal description of blood would be a sufficient basis to
make a reliable HVIS finding. After all, blood-spatter science
is notoriously unreliable even under the most optimal of
circumstances. See COMM. ON IDENTIFYING THE NEEDS OF THE
FORENSIC SCIS. CMTY., NAT’L RESEARCH COUNCIL,
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A
PATH FORWARD 177–79 (2009), https://www.ncjrs.gov/
pdffiles1/nij/grants/228091.pdf (explaining that the “uncer-
tainties associated with bloodstain pattern analysis are
enormous” and calling the practice “more subjective than
scientific”).
Finally, we turn to Clemons. Like the other three, there is
a material factual dispute about whether he too was aware
of Stites’s lack of qualifications yet withheld that information
from the affidavit. Not only that, Clemons admitted that he
signed the probable-cause affidavit without reviewing all of
the evidence supporting it. This admission could support a
finding that he proceeded in reckless disregard of the truth.
In addition, Clemons admits that he knowingly included at
least one false statement in the affidavit: he wrote that he
was relying on certain statements made to him by two
pathologists, Dr. Tracy Corey Handy and Dr. Dora
Hunsaker, even though he had not spoken to either nor read
their reports.
In sum, a reasonable jury could find that these four de-
fendants either knowingly or recklessly made false state-
ments or withheld information in procuring the first
No. 18-1440 17
warrant. That leaves the question whether “the false state-
ments were necessary to the judicial officer’s determination
that probable cause existed.” Whitlock, 596 F.3d at 410 (al-
terations omitted). We have no difficulty concluding that the
false statements and omissions were material. To start, it is
inconceivable that a state-court judge would have reached
the same conclusion had he known that Clemons and Faith
relied so heavily on a rookie forensics assistant with no
relevant education, training, or experience. Moreover,
without the HVIS conclusion, the only fact tying Camm to
the murders was Mrs. Ter Vree’s statement. But she never
characterized the sounds she heard as possible gunshots; she
said they sounded like someone banging on a car. Regard-
less, her statement standing alone would not be enough to
support a warrant. That’s especially true given the weakness
of the timeline based on her statement. The first affidavit
describes extensive manipulation of the scene. If Camm had
killed his family around the time Mrs. Ter Vree heard the
noises—that is, between 9:15 and 9:30 p.m., minutes before
he called the police—it would have been nearly impossible
to clean up the crime scene as the affidavit describes. Given
the weakness of the remaining information in the warrant,
the false statements and omissions were clearly material.
One problem remains. The defendants argue for the first
time on appeal that this claim is barred by the two-year
statute of limitations applicable to § 1983 suits in Indiana.
We held in Manuel that a Fourth Amendment claim for
wrongful detention accrues when the detention ends. Camm
sued one year after his acquittal and release. But there was
one time period between 2000 and 2013 in which Camm was
arguably free of custody: he was released on bail for six
weeks in 2005. At oral argument Camm’s counsel told us
18 No. 18-1440
that he continued to be under restraints during that time—
an ankle bracelet and house arrest—which for our purposes
arguably would be enough to constitute “custody.” Cf.
Cochran v. Buss, 381 F.3d 637, 640 (7th Cir. 2004) (noting that
individuals released on bail are “in custody” in the habeas
context). On closer examination, however, the state-court
records indicate that the restraints were perhaps less strin-
gent than counsel suggested: Camm did wear an electronic-
monitoring device, but he was only confined to his house
from the hours of 9 p.m. to 6 a.m. Otherwise, he was free to
move about, but only within a two-county area.
We have no need to resolve questions about bail condi-
tions or decide the legal significance of this brief break in
physical custody. In the district court, the defendants did not
mount a limitations defense to the Fourth Amendment claim
(or, as everyone characterized it then, the malicious-
prosecution claim); they only challenged the timeliness of
the Brady claim and the state-law claims. The limitations
argument is therefore waived. Williams v. Dieball, 724 F.3d
957, 961 (7th Cir. 2013) (“[A] party may not raise an issue for
the first time on appeal.”).
So the Fourth Amendment claim may proceed to trial as
it relates to the first probable-cause affidavit. The second and
third affidavits, however, are a different matter. By the time
Gilbert wrote the second affidavit, several forensic experts
had offered opinions confirming the blood-spatter conclu-
sion. With this additional information in hand, it was not
reckless to include this information in the affidavit. The
second affidavit also included information that a confiden-
tial jailhouse informant had reported that Camm had con-
fessed. Finally, Gilbert added information about Camm’s
No. 18-1440 19
statement to Clemons the night of the killing, “This is what
they do to you when you kill your wife and kids.” As we’ve
noted, if Camm actually said this, it’s hard to understand
why Faith and Clemons did not include it in the first
probable-cause affidavit. But there is no evidence that
Gilbert acted recklessly by including it in the second.
The third affidavit contained even more incriminating
evidence against Camm. Charles Boney told investigators
that he provided the murder weapon and was present when
Camm killed his family. In addition, Gilbert learned that
Camm called his wife’s employer early in the morning
following the murder to calmly inquire about collecting on
her life-insurance policy. And a second jailhouse informant
had come forward claiming that Camm confessed to the
killings. No evidence suggests that Gilbert acted recklessly
by including this information in the third affidavit.
In sum, the Fourth Amendment claim against four de-
fendants—Stites, Englert, Faith, and Clemons—may proceed
to trial as it relates to the first probable-cause affidavit. 2
B. Brady Claim
Camm also claims that the defendants suppressed evi-
dence in violation of Brady. Three categories of evidence are
at issue: the true extent of Stites’s lack of qualifications, the
fact that the DNA profile on the “Backbone” sweatshirt was
not tested, and Henderson’s book deal.
2 Stites and Englert make a passing reference to qualified immunity, but
it has long been clear that “falsifying the factual basis for a judicial
probable-cause determination violates the Fourth Amendment.” Lewis v.
City of Chicago, 914 F.3d 472, 477 (7th Cir. 2019) (citing Franks v. Delaware,
438 U.S. 154 (1978)).
20 No. 18-1440
To prevail on a claim for violation of the due-process dis-
closure duty announced in Brady, a plaintiff must establish
three things:
(1) the evidence at issue was favorable to the
accused, either because it is exculpatory or be-
cause it is impeaching; (2) the evidence must
have been suppressed by the [S]tate, either
willfully or inadvertently; and (3) the evidence
must have been material, meaning there is a
reasonable probability that the result of the
proceeding would have been different.
Beaman v. Freesmeyer, 776 F.3d 500, 506 (7th Cir. 2015).
Evidence is suppressed for Brady purposes on-
ly if (1) the prosecution failed to disclose evi-
dence that it or law enforcement was aware of
before it was too late for the defendant to make
use of the evidence, and (2) the evidence was
not otherwise available to the defendant
through the exercise of reasonable diligence.
Boss v. Pierce, 263 F.3d 734, 740 (7th Cir. 2001).
It’s worth noting that while the parties sometimes refer to
three “Brady claims,” it’s more accurate to say that Camm
has a single Brady claim alleging the suppression of three
baskets of evidence. See Goudy v. Cummings, 922 F.3d 834,
838 (7th Cir. 2019). For this reason, we normally evaluate the
materiality of suppressed evidence cumulatively. See id.(citing Kyles v. Whitley, 514 U.S. 419, 436 (1995)).
We begin with the evidence of Stites’s lack of qualifica-
tions. There’s no need to belabor the details of his woefully
inadequate education, training, and experience; Stites was
No. 18-1440 21
plainly unqualified to give expert opinions. Yet Stites,
Englert, Faith, and Clemons never disclosed these facts to
Camm in time to use the information. To the contrary, Stites
lied about his qualifications, Faith led him through his false
testimony, and Englert and Clemons knew about and did
nothing to correct the falsehoods. The true facts about Stites
would have had unquestionable impeachment value. And
this evidence was clearly material, even when viewed in
isolation. Stites was one of the prosecution’s primary foren-
sic experts at trial. Had the jury known that he was utterly
unqualified, the prosecution’s case would have been signifi-
cantly damaged.
None of this is seriously disputed. What the parties do
quibble about is whether Camm could have discovered this
information on his own through reasonable diligence. The
record shows that McDaniel, Camm’s counsel, did just about
all that could be expected of him. After receiving Stites’s
curriculum vitae, Camm deposed Stites. At that deposition
Stites lied about his qualifications. He testified that he was a
crime-scene reconstructionist, a title he has since disavowed.
He also claimed that he was not just Englert’s assistant but
that he was his partner. Most importantly, he continued to
hold himself out as qualified to make expert conclusions
about blood-spatter evidence. While McDaniel arguably
could have done more to probe specific claims in Stites’s
curriculum vitae, it was not incumbent on him to intuit that
Stites was being untruthful. Nor is there any reason to think
Stites would have admitted to lying had he been asked more
pointed questions. “Because mind-reading is beyond the
abilities of even the most diligent attorney,” we are often
hesitant to say that “material contained in a witness’s head”
is available to a criminal defendant for Brady purposes. Boss,
22 No. 18-1440
263 F.3d at 741. On this record we cannot say that Camm
could have discovered the true facts about Stites with rea-
sonable diligence. A jury must decide whether Stites,
Englert, Faith, and Clemons suppressed this evidence in
violation of Brady.
Camm also contends that the defendants suppressed ev-
idence related to Boney’s sweatshirt. Recall that after
McDaniel discovered the DNA profile on the “Backbone”
sweatshirt, he asked Faith to run it through Indiana’s CODIS
database, which only law enforcement can access. Faith
agreed but never did so. McDaniel followed up several times
until Faith finally told him that there were no matches,
falsely implying that the test was in fact run.
Camm has not been as clear as he could be about exactly
what should have been disclosed under Brady. His argument
appears to rest on two potential theories: (1) that by never
running the test, Faith and Clemons suppressed the ultimate
fact that the DNA was Boney’s, and (2) that Brady required
Faith and Clemons to disclose the fact that they never ran
the test at all.
The first theory fails because Faith and Clemons had no
obligation to disclose a DNA match they were not yet aware
of. As we explained in United States v. Gray, there is no
obligation to disclose latent evidence that is discoverable
only through further testing. 648 F.3d 562, 567 (7th Cir. 2011)
(holding that Brady does not extend to “latent exculpatory
evidence,” which is defined as “evidence that requires
processing or supplementation to be recognized as exculpa-
tory”). Until Gilbert discovered much later that the profile
belonged to Boney, the DNA match remained latent. As a
result, it was not “suppressed” within the meaning of Brady.
No. 18-1440 23
Perhaps the case would be different if, as Camm has sug-
gested, there were reason to think that Faith already knew
the DNA profile would match Boney’s because he recog-
nized the nickname “Backbone” on the sweatshirt. But Faith
testified in deposition that he did not learn that nickname—
or even meet Boney—until after he left the prosecutor’s
office. Camm has pointed to no evidence rebutting that
testimony.
The second theory finds more fertile ground. There is in-
deed substantial evidence that Faith and Clemons failed to
disclose the fact that they never ran the test at all. Nothing
required them to run the DNA profile through the law-
enforcement database. But the fact that they promised to do
so and failed to follow through would have been useful to
the defense in its cross-examination of Clemons. At the very
least, it would support an argument that this investigation
was so shoddy that a simple test on a highly important piece
of physical evidence—indeed, a test that could in theory
identify a different suspect—was overlooked. More nefari-
ously, exposing the lie—the false representation that the test
was in fact done and nothing came up—would have eroded
the jury’s trust in both the prosecutor and the lead case
investigator. More substantively, it would have set up an
argument that they were hiding crucial evidence because
they thought it might undermine their case against Camm
by identifying an alternative suspect. Arguments like these
can help create reasonable doubt.
Faith and Clemons say the failure to run the test was the
result of a simple miscommunication. But that doesn’t
explain the phony cover story to McDaniel. On its own, and
especially when considered in tandem with the undisclosed
24 No. 18-1440
facts about Stites, this evidence too crosses the materiality
threshold for Brady purposes.
The third component of Camm’s Brady claim focuses on
Henderson’s book deal. But “evidence cannot be said to
have been suppressed in violation of Brady if it was already
known to the defendant.” Avery v. City of Milwaukee, 847 F.3d
433, 443 (7th Cir. 2017). Henderson did not sign his book
deal until after the second trial, and Camm learned of it long
before the third. Whatever else might be said of Henderson’s
conduct, he cannot be held liable for violating Brady.
Our conclusion that the Brady claim may proceed in part
requires us to address the defendants’ argument that the
claim is barred by the statute of limitations. Unlike the
Fourth Amendment limitations issue, the defendants pre-
served an untimeliness defense below in opposition to the
Brady claim. Nonetheless, it’s a nonstarter under circuit
precedent. In Johnson v. Dossey, 515 F.3d 778, 782 (7th Cir.
2008), we held that a similar Brady claim accrued when the
defendant was finally acquitted. We relied heavily on the
Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477(1994), which bars a criminal defendant from seeking dam-
ages for an allegedly unlawful conviction unless and until
the criminal proceedings have terminated in his favor. See
Johnson, 515 F.3d at 782 (citing Heck, 512 U.S. at 486–87).
The Supreme Court recently reached the same conclusion
in a closely related context. In McDonough v. Smith, 139 S. Ct.
2149 (2019), a special prosecutor was accused of fabricating
evidence and using it against a criminal defendant at two
trials. The first ended in a mistrial; the second ended with an
acquittal. The Court held that the limitations period for a
claim of that nature does not begin to run until the criminal
No. 18-1440 25
proceedings against the defendant have terminated in his
favor with a final acquittal. Id. at 2161. To be clear, no Brady
claims were at issue, and the Court emphasized that it was
not expressing any opinion about the accrual of anything but
the claim before it. Id. at 2155 n.2. But much of the Court’s
reasoning lends support to what we held in Johnson. Most
importantly, the Court emphasized Heck’s “pragmatic
concerns with avoiding parallel criminal and civil litigation
over the same subject matter and the related possibility of
conflicting civil and criminal judgments.” Id. at 2157. In the
same vein, the Court stressed that “[t]here is not a complete
and present cause of action to bring a fabricated-evidence
challenge to criminal proceedings while those criminal
proceedings are ongoing.” Id. at 2158 (quotation marks
omitted). Both considerations have just as much force in the
Brady context.
We therefore reiterate once more that the statute of limi-
tations for a Brady claim does not accrue until the criminal
proceedings terminate in the defendant’s favor. Here, as in
Johnson, the proceedings did not terminate until Camm was
finally acquitted. He filed his complaint just one year after
that, so his Brady claim is timely. See Behavioral Inst. of Ind.,
LLC v. Hobart City of Common Council, 406 F.3d 926, 929 (7th
Cir. 2005) (explaining that the statute of limitations for
§ 1983 claims arising in Indiana is two years).
To recap, Camm has enough evidence to proceed to trial
on his Brady claim against Stites, Englert, Faith, and Clemons
for suppression of Stites’s lack of qualifications, and against
Faith and Clemons for suppression of the fact that they
26 No. 18-1440
never ran the DNA profile from the “Backbone” sweatshirt
through the CODIS system and lied about it to McDaniel. 3
C. Evidence Fabrication
Camm’s remaining claim is that the defendants fabricat-
ed Boney’s confession by using coercive interrogation tech-
niques to obtain it. Rather than situate this claim within the
rubric of Brady, Camm argues that the use of this evidence at
trial violated his right to due process in a broader sense.
But we have consistently drawn a distinction between
coerced and fabricated testimony: “Coerced testimony is
testimony that a witness is forced by improper means to
give; the testimony may be true or false. Fabricated testimo-
ny is testimony that is made up; it is invariably false.” Fields
v. Wharrie, 740 F.3d 1107, 1110 (7th Cir. 2014). The distinction
is crucial because “a claim that an officer coerced a witness
3 Stites and Englert again raise a cursory argument about qualified
immunity. But by 2000 it had been clear for decades that the govern-
ment’s Brady obligations include a duty to disclose impeachment
evidence. See United States v. Bagley, 473 U.S. 667, 676 (1985). Likewise, it
has long been clearly established that Brady obligations extend not just to
prosecutors but also to investigators. See Beaman v. Freesmeyer, 776 F.3d
500, 509 (7th Cir. 2015) (“[T]he idea that police officers must turn over
materially exculpatory evidence has been on the books since 1963.”).
One final immunity issue remains. In a single sentence, Stites and
Englert mention the possibility that as witnesses they enjoy absolute
immunity and cannot be held liable on this claim. That’s not enough to
develop an immunity claim. In any event, although prosecutors and
witnesses have absolute immunity from tort liability for conduct under-
taken as prosecutors and witnesses, the defendants here have been sued for
wrongdoing committed in the course of the investigation that led to the
Brady violation. See Fields v. Wharrie, 740 F.3d 1107, 1111–14 (7th Cir.
2014).
No. 18-1440 27
to give incriminating evidence does not, at least standing
alone, violate the wrongly convicted person’s due-process
rights.” Avery, 847 F.3d at 439. Camm does not contend that
the investigators fed Boney a story they knew was false. He
argues instead that the investigators used suggestive inter-
rogation methods to elicit a story they should have known
was unreliable. Without more, however, the claim for evi-
dence fabrication cannot succeed.
* * *
In sum, we reverse and remand for trial on Camm’s
Fourth Amendment claim against Stites, Englert, Faith, and
Clemons to the extent that the claim rests on the first
probable-cause affidavit. Trial is also warranted on the Brady
claim against the same four defendants for suppression of
Stites’s lack of qualifications and against Faith and Clemons
for suppression of the facts surrounding their handling of
the DNA profile on Boney’s sweatshirt. In all other respects,
we affirm the judgment.
AFFIRMED in part and REVERSED in part