Alan Beaman v. Dave Warner , 776 F.3d 500 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1195
ALAN BEAMAN,
Plaintiff-Appellant,
v.
TIM FREESMEYER, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:10-cv-01019 — Joe Billy McDade, Judge.
____________________
ARGUED SEPTEMBER 29, 2014 — DECIDED JANUARY 13, 2015
____________________
Before EASTERBROOK, WILLIAMS, and SYKES, Circuit Judges.
WILLIAMS, Circuit Judge. In 1995, Alan Beaman was con-
victed of the murder of his ex-girlfriend, Jennifer Lockmiller.
Thirteen years later, the Illinois Supreme Court overturned
his conviction, finding that the state violated his due process
rights under Brady v. Maryland, 373 U.S. 83 (1963), for failure
to disclose material information about a viable alternative
suspect. After release from prison, Beaman filed a 42 U.S.C. §
1983 lawsuit against the police officers and prosecutors in-
2 No. 14-1195
volved in the investigation of the Lockmiller murder and his
prosecution. He alleged that the defendants deliberately
conspired to suppress materially exculpatory evidence dur-
ing the pendency of his criminal case in violation of Brady.
Although several defendants were dismissed for various
reasons, the remaining defendants—Tim Freesmeyer, Dave
Warner, and Frank Zayas, three former police officers in the
Normal Police Department, as well as their former employer,
the Town of Normal, Illinois—filed a motion for summary
judgment on all counts. The motion was granted. On appeal,
Beaman argues that the defendants should not have been
granted summary judgment, but we disagree. Summary
judgment was proper because Beaman did not present
enough evidence from which a reasonable jury could infer
the existence of a conspiracy to conceal the Brady material.
One piece of evidence—the report on alternative suspect
Stacey Gates’s polygraph test—was not Brady material and
its non-disclosure could not form the basis of a complaint.
As to the other Brady material—the report on alternative
suspect John Murray’s polygraph test—which the defend-
ants did not turn over to the prosecution, the defendants
were entitled to qualified immunity. Therefore, we affirm the
district court’s decision.
I. BACKGROUND
A. Murder Investigation and Beaman’s Conviction
On August 28, 1993, Jennifer Lockmiller, a 21-year-old
college student at Illinois State University, was found dead
in her apartment in Normal, Illinois. Her body was severely
decomposed and partially unclothed. The electrical cord of
her alarm clock was wrapped around her throat, and a pair
of scissors was buried in her chest. An autopsy later revealed
No. 14-1195 3
that Lockmiller died from ligature strangulation caused by
the alarm clock cord.
Lockmiller’s murder quickly became a high profile story
in the twin college towns of Normal and Bloomington. Sev-
eral police officers were involved in the investigation includ-
ing Tim Freesmeyer, Rob Hospelhorn, Tony Daniels and
Dave Warner, detectives in the City of Normal Police De-
partment (“NPD”), Frank Zayas, a lieutenant in the NPD,
and John Brown, a McLean County Deputy Sheriff. Prosecu-
tors Charles Reynard, the McLean County State’s Attorney,
and James Souk, an Assistant State’s Attorney, were also
part of the investigative and prosecutorial team.
Because there was no sign of forced entry and nothing
was stolen, the investigation immediately focused on people
Lockmiller knew and, particularly, men she had dated. The
police questioned several of Lockmiller’s current and former
boyfriends, including Alan Beaman, Michael Swaine, Stacey
“Bubba” Gates, and Larbi John Murray. Swaine was
Beaman’s roommate and Lockmiller’s boyfriend at the time
of her murder. But Swaine was quickly eliminated as a sus-
pect because he was working at his former high school’s
bookstore in Elmhurst, Illinois, on the day the detectives
identified as the day Lockmiller was killed. 1 Gates, another
former boyfriend, had recently moved to Peoria to be closer
to Lockmiller, and he and Lockmiller had plans to get to-
gether the weekend after her murder. Because of Gates’s in-
1 Lockmiller’s body was not found until August 28, but it was obvi-
ous that she had been dead for some time. Based upon her class schedule
and, Beaman contends, Beaman’s availability, the government deter-
mined that Lockmiller was killed on August 25.
4 No. 14-1195
volvement with Lockmiller, he was asked to take a poly-
graph report. The report found that Gates gave erratic and
inconsistent answers. Detective Warner received the report
and turned it over to his supervisor Zayas, but Zayas never
turned the report over to ASA Souk or Beaman’s defense
counsel. Despite the ambiguous polygraph report, Gates was
eliminated as a suspect because check-in logs from a Peoria
school showed that he was working as a teacher on August
25.
The most important alternative suspect was Murray.
Murray was Lockmiller’s drug dealer and one of her lovers.
Detectives Hospelhorn and Daniels interviewed Murray
twice. He first told police that he left town on August 24, the
day before Lockmiller died, but his girlfriend Debbie
Mackoway told the police that they did not leave until the
afternoon of August 25. Murray later corrected his story to
the police and said he left on the afternoon of August 25.
Murray lived one-and-a-half miles away from Lockmiller’s
apartment. He claimed to have been at home alone on Au-
gust 25 before 2 p.m. and thus could not provide any cor-
roboration for or proof of his location.
Murray also had some previous trouble with the law, re-
lated to his drug dealer profession and his abuse of Macko-
way. Murray had charges pending against him for domestic
violence and drug possession with intent to deliver at the
time Beaman eventually went to trial for Lockmiller’s mur-
der. He had a history of steroid abuse which Mackoway told
the police caused him to act erratically. His apartment had
been searched by the police several times, both before and
after Lockmiller was killed, and cocaine and steroids were
found. Because of his relationship with Lockmiller, the po-
No. 14-1195 5
lice asked Murray to submit to a polygraph examination.
The examiner was not able to start the test though, because
Murray failed to follow instructions. The examiner later
agreed that the refusal to follow instructions could have
been intentional. Despite the hole in Murray’s alibi, his ar-
rest record, pending charges, and the ambiguous polygraph
results, the police and prosecutors decided to focus on
Beaman.
Beaman and Lockmiller had dated off and on for a cou-
ple of years until about a month before Lockmiller’s death.
While their relationship was tumultuous, especially consid-
ering Lockmiller’s involvement with Beaman’s roommate,
Swaine, Beaman too had an alibi. He was living with his
parents in Rockford, two hours away from Normal. Howev-
er, through a series of controversial time trials, the state es-
tablished its theory of the case: Beaman drove to Normal on
August 25 after visiting a bank in Rockford at 10:11 a.m.,
killed Lockmiller at noon, and then drove back to Rockford
where he was observed by his mother in his room at 2:15
p.m. Beaman’s whereabouts were accounted for in Rockford
at all times on August 25 except between 10:11 a.m. and 2:15
p.m. Freesmeyer was able to establish Beaman’s ability to
drive to Normal and back during that time by driving over
the speed limit throughout the trip. However, he also
claimed that Beaman could not have driven from the bank to
his parents’ home to place two phone calls at 10:37 a.m.—
phone calls which, if they had been placed by Beaman,
proved he indisputably could not have also driven to Nor-
mal to kill Lockmiller—because the bank was too far. In the
bank-to-home time trial, though, Freesmeyer took the more
trafficked route and followed all speed limits.
6 No. 14-1195
Despite the holes in the case, the state decided to prose-
cute Beaman. At trial, the state argued that Beaman was the
only person with both the opportunity and motive to kill
Lockmiller. The prosecution presented evidence of three
suspects, Beaman, Swaine, and Gates, and then argued that
Beaman was the only one who did not have an alibi.
Freesmeyer testified regarding the time trials he conducted,
in order to establish Beaman’s ability to drive to Normal and
commit the murder, and Beaman’s inability to drive to his
parents’ home in Rockford to place the phone calls (which
would have negated his ability to drive to Normal). Before
trial, ASA Souk filed a motion in limine to exclude evidence
of Lockmiller’s relationships with men, other than Beaman
and Swaine. At that time, Souk informed the court that Mur-
ray had “nothing to do with this case.” Souk argued that
Beaman should not be allowed to offer alternative suspect
evidence unless he could establish that it was not specula-
tive. The state had not turned over the report of Murray’s
polygraph test or any of Murray’s arrest records, which in-
cluded evidence of his steroid use and domestic violence. So
Beaman’s lawyer responded that he did not have any specif-
ic evidence showing that another person committed the of-
fense. So the court then granted the motion in limine. During
closing argument, Souk stated that the state had proved eve-
ry other suspect’s alibi, except for Beaman. But because of
the motion in limine, Murray was not mentioned at trial. In
April 1995, the jury convicted Beaman of Lockmiller’s mur-
der.
No. 14-1195 7
B. Illinois Supreme Court Overturns Beaman’s
Conviction
After conviction, Beaman vigorously pursued post-
conviction relief. And in 2008 the Illinois Supreme Court re-
versed the dismissal of his post-conviction petition. People v.
Beaman, 890 N.E.2d 500 (Ill. 2008). The Illinois Supreme
Court found that four points of undisclosed evidence were
withheld in violation of Brady: (1) Murray failed to complete
the polygraph examination; (2) Murray was charged with
domestic battery and possession of marijuana with intent to
deliver prior to Beaman’s trial; (3) Murray had physically
abused his girlfriend on numerous occasions; and (4) Mur-
ray’s use of steroids had caused him to act erratically (“the
Murray evidence”). Id. at 511. Beaman’s essential claim was
that he could have used the undisclosed evidence, along
with the disclosed evidence tending to show Murray’s pos-
sible involvement in the offense, to present Murray as an al-
ternative suspect. The court found that the undisclosed evi-
dence was clearly favorable to Beaman in establishing Mur-
ray as an alternative suspect. Id. The state admitted that the
Murray evidence had been suppressed. And the court fur-
ther found that the evidence was material because it coun-
tered the state’s circumstantial evidence against Beaman and
rebutted the state’s argument that all other potential sus-
pects had established alibis. Id. at 514. It concluded that there
was a reasonable probability that the result of the trial
would have been different if Beaman had presented the evi-
dence establishing Murray as an alternative suspect. Id.
Therefore, the state’s suppression of the Murray evidence
violated Beaman’s constitutional right to due process under
Brady. Id.
8 No. 14-1195
After Beaman’s conviction was vacated and remanded,
the state declined to re-prosecute him and dismissed all
charges. Beaman was released from prison in June 2008, and
in April 2013, the state of Illinois certified his innocence.
C. Beaman’s Civil Suit
In January 2010, Beaman filed a 42 U.S.C. § 1983 com-
plaint against five NPD police officers, two McLean County
prosecutors, and two municipalities. He alleged three federal
claims: (1) that the defendants, acting individually, jointly,
and in conspiracy, deprived Beaman of a fair trial by with-
holding material exculpatory evidence in violation of Brady
(individual liability); (2) that the defendants conspired to
deprive Beaman of material exculpatory evidence (conspira-
cy liability); and (3) that the defendants failed to intervene in
preventing the violation of his rights (failure to intervene li-
ability). The complaint also included state law claims for ma-
licious prosecution, civil conspiracy, and intentional inflic-
tion of emotional distress, and respondeat superior and in-
demnification claims against the municipalities. The evi-
dence he claimed was Brady material included not only the
Murray evidence, but also the report of Gates’s polygraph
test, another suspect’s criminal history, the unsolved nature
of the case, and the results of the different time trials.
The district court dismissed Beaman’s due process claim
against Souk and Reynard on the ground of absolute im-
munity. Later, Souk and Reynard were voluntarily dis-
missed from the suit because discovery revealed that all
claims against them would be barred by absolute or quali-
fied immunity. The complaint was also dismissed against
detectives Hospelhorn and Brown because discovery re-
vealed that they were not involved in the alleged suppres-
No. 14-1195 9
sion of evidence. The remaining defendants are detectives
Freesmeyer, Warner, and Zayas, and their employer, the
Town of Normal.
The district court granted summary judgment in favor of
these remaining defendants because it found that the federal
counts in the complaint failed for a variety of reasons: (1)
most of the Brady material was given to the prosecutor, thus
discharging the defendants’ individual liability under Brady;
(2) Beaman had not provided sufficient evidence of a con-
spiracy or of failure to intervene liability; (3) some of the un-
disclosed evidence, including the report on Gates’s poly-
graph test, was not Brady material; and (4) the defendants
were entitled to qualified immunity for their failure to turn
over the Murray polygraph test to the prosecution. After
dismissing the federal claims against the individual defend-
ants, the district court also dismissed the state law claims
against the Town of Normal due to lack of jurisdiction.
Beaman now appeals certain aspects of the district court’s
decision.
II. ANALYSIS
On appeal, Beaman challenges the district court’s grant of
summary judgment on three grounds. He contends that the
district court erred in finding that (1) he had not presented
sufficient evidence of the existence of a conspiracy; (2) the
report on Gates’s polygraph test was not Brady material; and
(3) the defendants were entitled to qualified immunity for
withholding the results of Murray’s polygraph test from the
prosecution. Because our decisions on Beaman’s second and
third arguments narrow the scope of the alleged conspiracy,
we address those issues first.
10 No. 14-1195
A. No Brady Violation for Withholding of Gates’s
Polygraph Test
Beaman argues that the district court erred when it de-
termined that the report of Gates’s polygraph test was not
Brady material, and its non-disclosure did not violate
Beaman’s constitutional rights. We review the district court’s
grant of summary judgment de novo, including its finding
that the withholding of evidence does not violate Brady. Pet-
ty v. City of Chicago, 754 F.3d 416, 421 (7th Cir. 2014).
A plaintiff must show three elements in order to prove a
Brady violation: (1) the evidence at issue was favorable to the
accused, either because it is exculpatory or because it is im-
peaching; (2) the evidence must have been suppressed by
the state, either willfully or inadvertently; and (3) the evi-
dence must have been material, meaning there is a reasona-
ble probability that the result of the proceeding would have
been different. Carvajal v. Dominguez, 542 F.3d 561, 566–67
(7th Cir. 2008). This last element is often referred to as “prej-
udice.” Id. at 566. “The reasonable probability standard for
materiality of suppressed evidence is less rigorous than a
preponderance of the evidence standard in that a petitioner
need only show that the new evidence undermines confi-
dence in the verdict.” Goudy v. Basinger, 604 F.3d 394, 399
(7th Cir. 2010) (citing Kyles v. Whitney, 514 U.S. 419, 434
(1995)). If confidence in the outcome of the trial is under-
mined by the reasonable probability of a different outcome,
the evidence is material and the criminal defendant suffered
prejudice. Kyles, 514 U.S. at 434.
Here, the district court found that the report on Gates’s
polygraph test was favorable. The report indicated that
Gates gave erratic and inconsistent answers which prevent-
No. 14-1195 11
ed the examiner from rendering an opinion as to whether he
was telling the truth. The district court also found that the
report was “suppressed.” Under NPD procedures in place at
the time, detective Warner would have received the report,
but it was never turned over to the prosecutors or to
Beaman’s defense counsel. However the district court found
that the report was not material. We agree.
Beaman argues that Gates’s polygraph report is material
because Gates was passionately in love with Lockmiller, so
much so that he moved from Wisconsin to Peoria to be clos-
er to her, but he learned shortly before her death that she did
not want to get back together with him. Therefore, Gates had
a motive to kill Lockmiller. Beaman contends that Gates’s
alibi—that he was working in a school on the day of the
murder—was no more convincing than Beaman’s and a jury
could have concluded that it was less so. But Beaman stipu-
lated at trial that Gates had been working at the school on
the day of the murder. Because Beaman did not address this
stipulation in front of the district court, the district court
constructed the argument that if Beaman had known about
the report, he would not have agreed to the stipulation. He
may have tried to persuade the trial court to allow in evi-
dence that Gates committed the murder, or his defense team
could have investigated further to see if Gates left the school
on the day of the murder.
However, Beaman’s hypothetical argument fails because
he has not shown a reasonable probability that the result of
his criminal trial would have been different if Gates’s poly-
graph had been disclosed. The report itself would not have
been admissible under Illinois evidentiary rules. See People v.
Jefferson, 705 N.E.2d 56, 60 (Ill. 1998). Beaman does not ex-
12 No. 14-1195
plain what other evidence he would have presented that
would point to Gates as the murderer, even if the trial court
had allowed him to do so. It is highly unlikely that the trial
court would have allowed evidence showing that Gates was
the actual murderer given his solid alibi, and, as it stands,
Beaman has presented no evidence to debunk Gates’s alibi.
Beaman has not presented any evidence that Gates actually
did leave the school on August 25. He has not interviewed
any witnesses who can testify that Gates left or provided any
other evidence that would suggest Gates did not remain at
school the entire day. At the time of the investigation, detec-
tive Freesmeyer interviewed the school’s principal who pro-
vided the check-in logs and, according to Freesmeyer’s po-
lice report, verified that Gates was present at the school from
8 a.m. to 4 p.m. Regardless of the polygraph report’s ability
to establish Gates’s motive or suspiciousness, without some
means of establishing opportunity, the report is not material
because Gates has not shown a reasonable probability that
the result of his criminal trial would have been different if it
had been disclosed.
Beaman argues that the materiality of the Gates poly-
graph is manifest when evaluated alongside the suppressed
evidence against Murray. It is clear that the cumulative effect
of all suppressed information should be considered, Goudy,
604 F.3d at 399, and an omission is “evaluated in the context
of the entire record,” United States v. Agurs, 427 U.S. 97, 112
(1976). However, the cumulative effect of the other sup-
pressed evidence—that is, the Murray evidence—does not
help Beaman in establishing that Gates’s polygraph was ma-
terial. Evidence inculpating Murray does nothing to establish
Gates as a viable alternative suspect. As the Illinois Supreme
Court found, the Murray evidence, considered cumulatively,
No. 14-1195 13
was material because the evidence would have presented
Murray as a viable alternative suspect without an alibi to
counter the state’s argument that all other suspects had es-
tablished alibis. But Gates’s polygraph is not material be-
cause it does not negate Gates’s alibi. Beaman has presented
no evidence that Gates was not actually at the school where
check-in logs show he was working on the day of the mur-
der or that he left the school at any point. Gates’s report
adds little to a finding that Gates was a viable alternative
suspect without some evidence that Gates had the oppor-
tunity to commit the murder. The trial court may have been
persuaded to admit evidence about Murray if presented
with all of the withheld Murray evidence, but it is improba-
ble that the evidence inculpating Murray would have per-
suaded the judge to admit evidence inculpating Gates, or
vice versa.
Therefore, we find that the report on Gates’s polygraph
test was not Brady material. Its non-disclosure cannot form
the basis of liability, whether individually or in conspiracy,
for any of the defendants.
B. Defendants Are Entitled to Qualified Immunity for
Non-disclosure of Murray Polygraph Test
Beaman also argues that the district court erred in find-
ing that the individual defendants were entitled to qualified
immunity for their failure to turn over the Murray poly-
graph report to the prosecution. We review a district court’s
grant of summary judgment on qualified immunity grounds
de novo. Carvajal, 542 F.3d at 566.
An official is entitled to qualified immunity for conduct
that does not violate clearly established statutory or constitu-
14 No. 14-1195
tional rights of which a reasonable person would have
known. Whitlock v. Brueggeman, 682 F.3d 567, 580 (7th Cir.
2012). Two questions must be answered when determining
whether an official is entitled to qualified immunity: first,
whether the plaintiff has alleged a deprivation of a constitu-
tional right at all, and second, whether the right at issue was
clearly established at the time and under the circumstances
presented. Id.
The Illinois Supreme Court and the district court found
that Beaman’s constitutional rights were violated by the non-
disclosure of the results of Murray’s polygraph test. The cir-
cumstances of the exam indicated that Murray may have in-
tentionally avoided the test. He did not comply with the
polygraph examiner’s instructions during the first attempt
and he did not cooperate in scheduling a second attempt.
The polygraph test, combined with the other suppressed
Murray evidence including his arrest record and the domes-
tic abuse allegations, could have been used to persuade the
trial judge to admit evidence indicating that Murray com-
mitted the murder. We agree with this analysis. So the first
question is satisfied.
The second question in the qualified immunity analysis is
whether the right at issue was clearly established at the time
and under the circumstances presented. A plaintiff can show
that a right is “clearly established” by statute or constitution
in at least two ways: (1) he can point to a clearly analogous
case establishing the right to be free from the conduct at is-
sue; or (2) he can show that the conduct was “so egregious
that no reasonable person could have believed that it would
not violate established rights.” Smith v. City of Chicago, 242
F.3d 737, 742 (7th Cir. 2001). Even if factual circumstances
No. 14-1195 15
are novel, a right can still be clearly established so long as
the state of the law at the time gave the defendants fair
warning that their conduct was unconstitutional. Hope v.
Pelzer, 536 U.S. 730, 741 (2002). “A constitutional right is
clearly established when ‘it would be clear to a reasonable
officer that his conduct was unlawful in the situation he con-
fronted.’” Estate of Escobedo v. Martin, 702 F.3d 388, 404 (7th
Cir. 2012) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).
Beaman argues that Brady “has been on the books since
1963 and easily qualifies as clearly established law.” Steidl v.
Fermon, 494 F.3d 623, 628 (7th Cir. 2007). The withholding of
materially exculpatory evidence violates the Due Process
Clause. Id. He contends that the novelty of the factual cir-
cumstance cannot excuse the Brady violation where it is well-
established that investigators who withhold exculpatory ev-
idence violate the defendant’s constitutional due process
right. While it is true that the idea that police officers must
turn over materially exculpatory evidence has been on the
books since 1963, it certainly has not been on the books since
1963 that polygraph reports are materially exculpatory evi-
dence. That is because in most states, polygraph reports are
inadmissible at trial. See e.g., Jefferson, 705 N.E.2d at 60
(“[T]he general rule in Illinois is to preclude introduction of
evidence regarding polygraph examinations and the results
of those tests.”).
And a few months after Beaman’s trial concluded, the
Supreme Court decided Wood v. Bartholomew, 516 U.S. 1
(1995). In Wood, the Court held that because polygraph re-
sults were not admissible at trial, the state’s failure to dis-
close the fact that a witness failed a polygraph test did not
deprive a defendant of “material” evidence under Brady, ab-
16 No. 14-1195
sent a reasonable likelihood that disclosure of the polygraph
test could have had a direct effect on the outcome of the trial.
Id. at 8. Beaman seeks to distinguish Wood by saying that in
his case, the Illinois Supreme Court specifically held that the
Murray polygraph report could have been used as part of a
larger argument that Murray was a viable suspect. Beaman,
890 N.E.2d at 511–12. He argues that the district court
should have been bound by the Illinois Supreme Court’s de-
termination that the evidence was Brady material in Illinois.
Even if the relevant inquiry was what the Illinois Su-
preme Court decided, that court’s determination in 2008 that
the polygraph test could have affected the trial does not an-
swer the question of whether, in 1995, it was clearly estab-
lished that the officers needed to turn over inadmissible pol-
ygraph reports. 2 Beaman points to no cases pre-1995 where
the Illinois Supreme Court, or any Illinois court for that mat-
ter, found that inadmissible polygraph tests, or any other
type of inadmissible evidence, could constitute Brady mate-
rial. Without such a case, it cannot be said that it was clearly
established in 1995 that inadmissible polygraph reports were
Brady material in Illinois. 3
2
Importantly, the Illinois Supreme Court did not determine that the
polygraph test would have been admissible. It just found that the poly-
graph could have been used as part of a broader argument that Murray
was a viable suspect in convincing the judge to admit other evidence
tending to inculpate Murray.
3Prior to Beaman’s trial, several Illinois Supreme Court cases estab-
lished that polygraph tests were inadmissible at trial, subject to a couple
exceptions that are inapplicable here. People v. Gard, 632 N.E.2d 1026 (Ill.
1994) (finding plain error in the introduction of testimony regarding the
polygraph testing of a prosecution witness); People v. Baynes, 430 N.E.2d
1070 (Ill. 1981) (finding error in the introduction at trial of the results of a
No. 14-1195 17
Beaman also argues that it was clearly established in 1995
that evidence inculpating another suspect was Brady materi-
al. While that is true as a general matter, Beaman forms the
question too broadly. In its broadest form, the relevant in-
quiry is whether inadmissible information inculpating anoth-
er suspect could be Brady material. Again, Beaman points to
no pre-1995 case from Illinois or the Supreme Court, and we
are unable to find one, establishing that inadmissible evi-
dence inculpating another suspect (to frame it broadly) or
polygraph tests (to frame it narrowly) is Brady material.
During the relevant time period, it was not clearly estab-
lished that the results of a polygraph test, inadmissible at
trial, constituted Brady material. Arguably, it was not until
Wood—decided three months after Beaman’s trial conclud-
ed—that it became clearly established that inadmissible pol-
ygraph tests stood any chance of ever being Brady material.
The question of whether and when inadmissible evidence
can be Brady material remains an open question in many ju-
risdictions today. See United States v. Morales, 746 F.3d 310
(7th Cir. 2014). Therefore we find that the defendants are en-
titled to qualified immunity for their failure to turn over the
Murray polygraph report to the prosecution and Beaman’s
defense counsel. Like Gates’s polygraph, its non-disclosure
cannot form the basis for individual or conspiracy liability.
polygraph examination taken by a criminal defendant, even though the
prosecution agreed to the admission of the evidence).
18 No. 14-1195
C. Summary Judgment Was Proper on Brady Conspira-
cy Claim
Finally, we address Beaman’s argument that the defend-
ants conspired with each other and Souk to violate his due
process right to a fair trial by withholding materially excul-
patory evidence, in violation of Brady. He alleges that a rea-
sonable jury could infer the existence of a conspiracy based
on the evidence he presented. We review the district court’s
grant of summary judgment de novo, construing the facts in
the light most favorable to Beaman. Mercatus Group, L.L.C. v.
Lake Forest Hosp., 641 F.3d 834, 839 (7th Cir. 2011).
A civil conspiracy is “a combination of two or more per-
sons acting in concert to commit an unlawful act, or to com-
mit a lawful act by unlawful means.” Scherer v. Balkema, 840
F.2d 437, 441 (7th Cir. 1988). To establish conspiracy liability
in a § 1983 claim, the plaintiff must show that (1) the indi-
viduals reached an agreement to deprive him of his constitu-
tional rights, and (2) overt acts in furtherance actually de-
prived him of those rights. Id. at 442. In Brady, the Supreme
Court held that the due process right to a fair trial requires
that the government turn over to the defense all potentially
exculpatory evidence. 373 U.S. at 87; Harris v. Kuba, 486 F.3d
1010, 1014 (7th Cir. 2007). We agree with the Illinois Supreme
Court and the district court that the withholding of the Mur-
ray evidence violated Beaman’s rights under Brady, so the
overt acts requirement is met. At issue here is whether
Beaman has shown that the defendants reached an agree-
ment to withhold the Murray evidence. 4
4Beaman also claims that the withholding of the Gates polygraph
report violated Brady and argues that the defendants conspired to with-
No. 14-1195 19
Summary judgment should not be granted if there is evi-
dence from which a reasonable jury could infer the existence
of a conspiracy. See Cooney v. Casady, 735 F.3d 514, 518 (7th
Cir. 2013). Because conspiracies are often carried out clan-
destinely and direct evidence is rarely available, plaintiffs
can use circumstantial evidence to establish a conspiracy, but
such evidence cannot be speculative. Williams v. Seniff, 342
F.3d 774, 785 (7th Cir. 2003). Our task then is to determine
whether Beaman’s circumstantial evidence shows that the
defendants agreed with Souk that Souk would not turn over
the Murray evidence to the defense.
Beaman argues that when officials conspire to violate
Brady, the most telling circumstantial proof that a conspiracy
existed is joint activity that violated Brady, with each de-
fendant playing a different role and contributing a different
part. His theory is that the defendants operated a two-track
conspiracy. On the first track, officers Warner and Zayas
suppressed evidence about other suspects, namely the Gates
and Murray polygraph reports. These reports were not
turned over to the prosecution or Beaman’s defense counsel.
On this track, they were assisted by ASA Souk. How? Be-
cause by withholding the polygraphs (Warner and Zayas),
interfering with the charging process to shield Murray’s
credibility from attack (Souk), lying to the court and counsel
about the evidence (Souk), misleading the jury (Souk), and
presenting a false and deceptive closing argument (Souk),
the defendants and Souk reveal a single plan to deflect the
hold it. However, because we determined that the Gates polygraph re-
port was not Brady material (whether considered alone or in combination
with the Murray evidence), his allegations that the defendants conspired
to withhold it are moot.
20 No. 14-1195
jury’s attention away from Murray and Gates. On the second
track, officer Freesmeyer prepared deceptive police reports
and misled the jury about the time Beaman would have
needed to travel between the bank and his home, and Nor-
mal and his home. Again, Souk assisted on the second track
by lying to the court and jury about the non-existence of al-
ternative suspects.
Beaman advances seven pieces of the puzzle from which,
he contends, the conspiracy can be inferred. First, on the first
day of the Lockmiller murder investigation, Freesmeyer and
Souk thought that Beaman killed her. Second, while Gates
and Murray were both alternative suspects, their polygraph
reports were not turned over to the prosecution (despite the
disclosure of other polygraph tests). Third, Freesmeyer told
the grand jury that there were no other suspects with a mo-
tive to kill Lockmiller, despite, Beaman claims, knowing that
this statement was not true. Fourth, Souk told another prose-
cutor not to prosecute Murray for his recent drug arrest in
order to avoid revealing Murray’s criminal history (at the
time, Murray was on the government’s witness list). At the
same time, Freesmeyer signed the police reports for Mur-
ray’s arrests. Fifth, Souk told the court and the jury that there
were no alternative suspects. Based on this representation,
the court excluded all reference to other suspects. Sixth,
Souk told the jury that all other suspects had been eliminat-
ed, so the jury never learned about the existence of Murray.
Seventh, throughout the investigation and trial, there was
close contact between the police and the prosecutors.
Beaman’s argument seems to be that because the defend-
ants all did things that helped to convict him, they must
have all been involved in the suppression of the Brady mate-
No. 14-1195 21
rial. At least two problems exist with this theory. First, most
of the actions the defendants took to convict Beaman that he
claims are evidence of the conspiracy were not at all Brady
violations themselves. For example, according to Beaman,
Freesmeyer’s role was to prepare a “deceptive” police report
about the time trials and mislead the jury about how long it
would take Beaman to travel to Normal and commit the
murder. But, Freesmeyer did not lie about the speeds at
which he drove, and he was subject to cross-examination at
trial about the speeds and alternative routes. The time trial
evidence was a legitimate attempt to show Beaman’s ability
to commit the crime and is not an indication of an illegiti-
mate conspiracy to withhold other evidence. This is the type
of behavior that will be present in every criminal prosecu-
tion—valid pursuit of a conviction. Second, detectives Warn-
er’s and Zayas’s involvement is limited to the withholding of
polygraph reports from the prosecution. Recall that on the
first track of the conspiracy, according to Beaman, Warner
and Zayas were assisted by ASA Souk. Even assuming that
the withholding of the polygraphs violated Brady, Beaman
does not explain how Warner and Zayas were assisted by
Souk in withholding information from Souk. Additionally, it
is unclear how their actions with respect to the polygraph
reports—the non-disclosure of which cannot form the basis
of liability, as determined previously—shows their involve-
ment in the suppression of, or even their knowledge of,
Murray’s arrest records and domestic violence disputes.
More difficult for Beaman’s argument than the weakness
in plausibility, though, is the implication of his theory of lia-
bility. Usually, a police officer’s Brady obligations are dis-
charged by disclosing material exculpatory evidence to the
prosecutor, for it is the prosecutor’s responsibility to turn the
22 No. 14-1195
evidence over to defense counsel. See Carvajal, 542 F.3d at
566. Here, it is conceded that the defendants turned over the
Murray evidence, except Murray’s polygraph report, to
Souk. Beaman’s theory is that the defendants agreed with
Souk to withhold the Murray evidence, and so they should
be held liable for Souk’s failure to disclose the evidence to
Beaman’s defense counsel. Beaman wants to use our discus-
sion in Whitlock and its companion case, Steidl. He argues
that a police officer’s duty to disclose exculpatory evidence is
not discharged by disclosure to a prosecutor conspiring with
the police officers to fabricate evidence, citing to our state-
ment in Whitlock that “It is not likely that the police may take
shelter behind a prosecutor who is conspiring with them to
fabricate false evidence against innocent suspects.” 682 F.3d
at 576 (citation omitted). There is no allegation here, howev-
er, that the defendants conspired to fabricate evidence. 5 The
defendants did not falsify any physical evidence or use any
knowingly false testimony at trial. Cf. id. at 575. Beaman’s
conspiracy allegations amount to a claim that the defendants
are culpable solely for the prosecutor’s decision not to dis-
close exculpatory evidence to Beaman’s attorneys. But our
case law has established that the police generally discharge
their Brady duty by turning over exculpatory evidence to the
prosecutor, thereby triggering the prosecutor’s disclosure
obligation. See Carvajal, 542 F.3d at 566.
We agree with the defendants that Beaman’s theory of
conspiracy liability is novel and, on these facts, cannot stand.
His theory would allow police officers to be held liable any
5
At times, Beaman refers to the time trial reports as “fabrication,”
but again, those reports contained no false information and Freesmeyer
did not testify falsely at trial.
No. 14-1195 23
time a prosecutor fails to disclose Brady material simply by
alleging that the police and prosecutor agreed that the pros-
ecutor would not turn over the evidence, and using the
prosecutor’s non-disclosure as evidence of the agreement. It
is clear that Beaman’s primary quarrel is with Souk. Souk
possessed (most of) the Murray evidence, failed to turn it
over, and told the court and jury that there were no alterna-
tive suspects. Unfortunately for Beaman, Souk is protected
by absolute immunity. While this ruling results in a situation
where Beaman cannot hold anyone accountable for the gov-
ernment’s failure to turn over Brady evidence, the solution
should not be to punish the police officers—who did turn
over the evidence to the prosecutor—for the prosecutor’s
failure in judgment.
Because Beaman failed to produce sufficient evidence
from which a reasonable jury could infer an agreement be-
tween the defendants to withhold the Murray evidence, the
defendants were entitled to summary judgment on the Brady
conspiracy claim.
III. CONCLUSION
We AFFIRM the judgment of the district court.