Deon Patrick v. City of Chicago ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2759
DEON PATRICK,
Plaintiff-Appellee,
v.
CITY OF CHICAGO, et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 3658 — Ronald A. Guzmán, Judge.
____________________
ARGUED SEPTEMBER 13, 2019 — DECIDED SEPTEMBER 8, 2020
____________________
Before SYKES, Chief Judge, and BAUER and ROVNER, Circuit
Judges.
SYKES, Chief Judge. Deon Patrick was convicted of double
murder in 1995 and sentenced to life in prison. The convic-
tions were vacated in 2014 and Patrick was released. The
Cook County Circuit Court issued a certificate of innocence,
see 735 ILL. COMP. STAT. 5/2-702, and Patrick then filed suit
for wrongful conviction against seven Chicago police offic-
ers and two prosecutors who investigated and prosecuted
2 No. 18-2759
him. He alleged several constitutional claims under 42 U.S.C.
§ 1983 and state-law claims for malicious prosecution and
civil conspiracy. The City of Chicago, also a defendant,
stipulated to liability if any of its officers were found respon-
sible for violating Patrick’s rights. A jury exonerated the
prosecutors and one officer but found six officers liable and
awarded more than $13 million in compensatory damages
and punitive damages in varying amounts.
The defendants raise several errors on appeal. First, they
claim that the district judge should have dismissed the case
as a sanction for Patrick’s acknowledged perjury during
discovery. Second, they challenge the judge’s decision to
admit the certificate of innocence at trial, arguing that it was
unfairly prejudicial, either alone or in combination with
certain statements by Patrick’s lawyer during closing argu-
ment. Finally, they point to an error in the jury instruction
on Patrick’s due-process claim.
We affirm. The judge’s ruling on the sanctions question
was a reasonable exercise of his discretion, and it was not
improper to admit the certificate of innocence into evidence
at trial. The jury instruction contained an error, but it was
harmless under the circumstances of this case.
I. Background
On November 16, 1992, at about 8:43 p.m., Jeffrey
Lassiter and Sharon Haugabrook were fatally shot in
Lassiter’s apartment on Chicago’s north side. The investiga-
tion focused on members of the Vice Lords gang who were
selling drugs in the neighborhood, including 20-year-old
Deon Patrick, a leader in a faction of the gang known as the
Conservative Vice Lords. Patrick was eventually charged
No. 18-2759 3
with two counts of murder and related crimes in connection
with the killings. A jury found him guilty, and he served
21 years of a life sentence before the convictions were vacat-
ed.
This suit for damages followed. Patrick claimed he was
framed by Chicago police. The defendants maintained that
he is guilty even though the convictions were thrown out.
Patrick won a substantial damages verdict, so the jurors
obviously credited his version of the story. We sketch the
facts adduced at trial in the light most favorable to the
verdict.
Chicago Police Detectives Anthony Villardita and
Thomas Johnson were assigned to lead the investigation into
the Lassiter/Haugabrook murders. At the scene they inter-
viewed Faye McCoy, Lassiter’s neighbor. McCoy said she
saw four men leave the apartment building immediately
after the shots were fired. She gave the detectives the follow-
ing information about the men: they were young (approxi-
mately age 24 or 25), black, and were recently seen selling
drugs in the area and frequenting Lassiter’s apartment,
though they were not from the immediate neighborhood.
She recognized one of the men as “Goldie,” the nickname
used by Dennis Mixon, the 31-year-old leader of the Vice
Lords faction known as the Traveling Vice Lords. She also
told the detectives that Lassiter had been beaten up the week
before—badly enough to be taken to the hospital.
The investigation progressed slowly over the next two
weeks. By the end of the November, Mixon remained the
only suspect. In early December, however, officers arrested
Patrick and six members of the Traveling Vice Lords: Lewis
Gardner, age 15; Daniel Taylor, age 17; brothers Paul and
4 No. 18-2759
Akia Phillips, ages 17 and 19; Joe Brown, age 20; and Rodney
Matthews, age 22.
Between December 2 and 5, five detectives—Villardita,
Johnson, Terrence O’Connor, Ricardo Abreu, and Brian
Killacky—participated in the interrogation of the seven
suspects; some detectives had a larger role than others. The
interrogators used physical and psychological coercion and
extracted false confessions from each suspect. (Or so a jury
could reasonably believe.) The false confessions were inter-
locking in that each contained the same basic narrative that
the murders were committed in retaliation for Lassiter’s
unpaid drug debt. Though differing in details, the confes-
sions generally described the following: the gang members
convened a meeting in Clarendon Park at about 7 p.m. on
the night of the murders; Mixon, Patrick, and the six other
suspects were there (along with others); they discussed
Lassiter’s drug debt and the fact that he hadn’t paid up
despite previous beatings; and a gun was displayed and the
murder plot was hatched. The interlocking confessions
placed Mixon, Patrick, Taylor, and Matthews inside the
apartment and described Gardner, Brown, and the Phillips
brothers as lookouts. Mixon and Patrick were identified as
the shooters, but the confessions differed on who shot which
victim.
The false confessions were the product of a combination
of psychological manipulation and physical deprivations—
and in some cases, physical abuse or threats of physical
abuse. Except for Gardner, all of the suspects were held in
locked, windowless interrogation rooms for long periods of
time (some for as long as 28–30 hours) without clocks, often
handcuffed to the wall, and some without bathroom breaks,
No. 18-2759 5
phone calls, or food or drink. A detailed description of the
interrogations is not necessary; the defendants do not chal-
lenge the sufficiency of the evidence to support the verdict,
so a few specifics will suffice. Akia Phillips testified that he
was beaten during his interrogation. Matthews was hand-
cuffed to the wall with no chair and urinated on himself
when no one responded to his shouts to be taken to the
bathroom. Taylor gave the detectives an alibi early in his
interrogation; he told them he was in lockup on a disorderly
conduct charge at the time of the murders, but they ignored
this claim, beat him, and promised he could go home if he
confessed, so he told them what they wanted to hear. More
generally, the detectives played the suspects off of one
another, telling them that the others had implicated them
and providing the details of the story they needed to agree
to in order to end their interrogations.
In between these interrogation sessions, Detectives
Villardita and Johnson put Patrick, Matthews, Brown, and
Paul Phillips in a lineup and brought McCoy in to view it.
She said she recognized all four and they were not the men
she saw leaving the apartment building after the murders.
Detectives Villardita and Johnson gave Detective Killacky a
false version of McCoy’s statement to include in the lineup
report. His resulting report omitted her exculpatory state-
ment and instead falsely stated that she told the detectives
that she had seen the four men in the neighborhood and was
afraid and would not go to court.
A few details about Patrick’s interrogation are worth
mentioning. He was arrested at about 11:30 p.m. on
December 2, and Detectives Villardita, O’Connor, and Abreu
interrogated him on and off for almost 30 hours. He was
6 No. 18-2759
given no food or drink and was not allowed to sleep. He was
handcuffed to the wall, and the detectives periodically
kicked the chair away from him so he could not sit. They
ignored his requests to speak with his lawyer, whom he
identified by name. They told him he would get the death
penalty. They threatened to use force and led him to believe
they were abusing Matthews, who was screaming in a
nearby interrogation room. They told Patrick that his friends
had given him up, and they brought Taylor into the room
and made him implicate Patrick face-to-face. They falsely
told Patrick that he had been identified in the lineup. There’s
more, but that’s the gist of what the jury heard.
At the end of the interrogations, the detectives gave
Patrick, Matthews, and Brown handwritten confessions to
sign. The detectives rehearsed the confession details with the
other suspects, who repeated them before a court reporter
and an Assistant State’s Attorney.
About 24 hours after the last of these confessions,
Detectives Villardita and Johnson learned of information
confirming Taylor’s alibi that he was in lockup at the time of
the murders. This was obviously a significant development
because all of the interlocking confessions placed Taylor at
the Clarendon Park planning meeting at 7 p.m. and inside
Lassiter’s apartment at 8:43 p.m. when the murders oc-
curred. Early on December 6, Officer Steve Caluris called
Detective Villardita and told him he had found an arrest
report showing that a person named Daniel Taylor was
arrested for disorderly conduct at 6:45 p.m. on the evening
of the murders and bonded out of lockup at 10 p.m. A bond
slip, signed by Officer James Gillespie and also by Taylor,
likewise reflected that Taylor bonded out at 10 p.m.
No. 18-2759 7
Detectives Villardita and Johnson interviewed Officer
Gillespie about the bond slip and created a report dated
December 6–7 falsely attributing statements to him to make
it appear that the alibi was phony. In particular the report
falsely stated that Officer Gillespie told the detectives that
Taylor may already have been released by the time he
(Gillespie) signed the bond slip. As Officer Gillespie ex-
plained at trial, however, he would not have said that. He
always signed bond slips before the detainees signed them
and were released, not after. A handwriting expert testified
at trial to a high degree of probability that the detainee
signature on the bond slip was Taylor’s.
In further effort to undermine Taylor’s lockup alibi, on
December 7 Detectives Villardita and Johnson arrested a
drug addict named Adrian Grimes and induced him to
testify before the grand jury that he had seen Taylor, Patrick,
Gardner, Brown, and Paul Phillips in Clarendon Park on the
evening of the murders, though he was imprecise about the
time. Grimes later recanted and said he had lied in order to
obtain favorable treatment on drug charges against him.
Finally, about a month after the murders, Detectives
Villardita and Johnson instructed Officers Sean Glinski and
Michael Berti to prepare a report saying they had seen
Taylor around Lassiter’s apartment on the night of the
murders. They did so; their report is dated December 14.
Mixon was arrested on March 1, 1993, and the eight sus-
pects faced murder and related charges in Cook County
Circuit Court based primarily on the interlocking confes-
sions. The court suppressed two of the confessions—
Brown’s and Akia Phillips’s—and dismissed the charges
against them. Matthews was acquitted after a jury trial.
8 No. 18-2759
Gardner was convicted in a bench trial and sentenced to
30 years in prison. The others were convicted after jury
trials. Paul Phillips received a sentence of 30 years. The
others—Mixon, Patrick, and Taylor—were sentenced to life
in prison and concurrent terms for the related robbery and
home-invasion charges.
Patrick’s convictions were affirmed on direct appeal, and
his 1999 petition for postconviction relief also failed. In 2013
he filed a new petition to vacate his convictions. He attached
affidavits supporting his innocence, including one from
Mixon, who swore that Patrick was not involved in the
murders and instead implicated a man named Lemuel
Hardy. In 2014 the State’s Attorney’s Office filed its own
motion to vacate Patrick’s convictions. The court granted the
motions, vacated the convictions, and ordered Patrick
released. The court also vacated Taylor’s, Gardner’s, and
Paul Phillips’s convictions, and they too were released, also
on motions by the State’s Attorney.
Patrick then sought a certificate of innocence from the
Cook County Circuit Court. His petition simply summarized
the evidence supporting his innocence; he did not submit
affidavits or other evidence. Under Illinois law only the
Attorney General and the State’s Attorney may be heard in
opposition to a petition for a certificate of innocence; they
took no position. Based on Patrick’s summary presentation,
the court granted the petition and issued a certificate of
innocence.
Patrick then sued the seven detectives involved in the in-
vestigation and Martin Fogarty and Joseph Magats, two
Assistant State’s Attorneys who prosecuted the case against
him. The complaint raised 13 claims under § 1983 and state
No. 18-2759 9
law and also named the City of Chicago as a defendant. The
district judge narrowed the case at summary judgment, and
the following claims proceeded to trial: (1) a claim for viola-
tion of Patrick’s Fifth Amendment right against self-
incrimination stemming from the admission of his coerced
confession against him at trial; (2) a due-process claim based
on fabrication of evidence; (3) a claim for conspiracy to
violate Patrick’s civil rights; (4) a claim for failure to inter-
vene to prevent the foregoing constitutional violations; (5) a
state-law claim for malicious prosecution; and (6) a state-law
conspiracy claim.
After a lengthy trial, the jury cleared the prosecutors and
Detective Killacky of wrongdoing but found the others liable
as follows:
• Detectives Villardita, O’Connor, and Abreu were
found liable on the claim for violation of Patrick’s
Fifth Amendment right against compulsory self-
incrimination;
• Detectives Villardita, Johnson, Berti, and Glinski
were found liable on the due-process claim based
on fabrication of evidence;
• Detectives Villardita, Johnson, O’Connor, Abreu,
Berti, and Glinski were found liable on the federal
claims for conspiracy to violate Patrick’s civil
rights and failure to intervene; and
• Detectives Villardita, Johnson, O’Connor, and
Abreu were found liable on the state-law claims
for malicious prosecution and conspiracy.
The jury awarded $13.3 million in compensatory damag-
es and punitive damages as follows:
10 No. 18-2759
• $20,000 each against Detectives Villardita and
Johnson;
• $15,000 each against Detectives O’Connor and
Abreu; and
• $10,000 each against Detectives Berti and Glinski.
The defendants moved for judgment as a matter of law
or a new trial. The judge denied both forms of relief and
entered judgment on the jury’s verdict. The City had stipu-
lated to liability if the jury found any of its officers liable, so
the judgment is effective against the City. Its lawyers ap-
peared for all defendants on this appeal.
II. Discussion
The defendants raise three issues on appeal. They argue
that the case should have been dismissed as a sanction for
Patrick’s perjury during discovery, which was uncovered at
trial. They also challenge the judge’s decision to admit the
certificate of innocence into evidence at trial. Lastly, they
raise a claim of error in the jury instructions.
A. Dismissal as a Sanction for Perjury in Discovery
The defendants argue that the sanction of dismissal was
warranted based on two falsehoods in Patrick’s deposition
testimony. The perjury was exposed at the trial, so the
defendants’ posttrial motion asked the court to dismiss the
case as a sanction under either Rule 37 of the Federal Rules
of Civil Procedure or the court’s inherent power.
A district judge has broad discretion to sanction a party
or his counsel for litigation misconduct. Fuery v. City of
Chicago, 900 F.3d 450, 452 (7th Cir. 2018) (inherent authority);
James v. Hyatt Regency Chi., 707 F.3d 775, 784 (7th Cir. 2013)
No. 18-2759 11
(Rule 37). We review a decision to impose or withhold
sanctions for abuse of discretion, reversing only when the
ruling is one no reasonable judge would have made. Fuery,
900 F.3d at 452.
Patrick told two lies in his pretrial deposition. First, he
testified that he had never lied in an affidavit. That was
untrue. In the affidavit he submitted in support of his 1999
petition for postconviction relief, Patrick falsely claimed that
he had witnessed Taylor’s arrest for disorderly conduct on
the evening of the murders. Patrick admitted at another
point in his deposition that he had not in fact witnessed
Taylor’s arrest, contradicting his broader claim that he had
never lied in an affidavit, and this discrepancy in his deposi-
tion testimony was thoroughly explored at trial. Second,
Patrick testified in his deposition that he had never spoken
to Lemuel Hardy, whom Mixon had implicated in the
murders in Patrick’s second postconviction motion. At trial,
however, Patrick admitted that this part of his deposition
testimony was also untrue, acknowledging that he had, in
fact, spoken to Hardy in prison.
The judge found this misconduct deeply unsettling but
declined to dismiss the case as a sanction. The judge rea-
soned that Patrick’s lies did not concern core issues in the
litigation and were fully exposed at trial as part of a rigorous
attack on his credibility during cross-examination. (His
criminal history and gang affiliation were emphasized as
well.) The judge noted that whether Hardy was actually
involved in the murders was not pivotal to Patrick’s civil-
rights case. Finally, the judge observed that Patrick’s claim in
his deposition that he told the truth in all past affidavits was
so transparently false as to be harmless because he directly
12 No. 18-2759
contradicted his 1999 affidavit at another point in that very
same deposition. Weighing all these factors, the judge
determined that the sanction of dismissal was unwarranted.
That was a reasonable judgment call. The defendants in-
sist that the judge placed too much weight on the lack of
prejudice, noting that a showing of prejudice is not a pre-
requisite to the imposition of sanctions for litigation miscon-
duct. It’s true that sanctions may be imposed even if the
opposing party suffered no prejudice, but a judge may
properly consider the effect of the misconduct on the course
of the litigation when deciding whether sanctions are justi-
fied. Id. at 464. Patrick’s dishonesty under oath was a serious
matter, but his falsehoods concerned relatively peripheral
matters and were fully explored in cross-examination as part
of a vigorous impeachment of his trial testimony. The jury
weighed the totality of Patrick’s testimony against the other
evidence in the case and made its decision accordingly. The
judge did not abuse his discretion in declining to dismiss the
case as a sanction for Patrick’s two deposition falsehoods.
B. Certification of Innocence
Next up is a challenge to the judge’s decision to admit
Patrick’s certificate of innocence at trial. The defendants filed
a motion in limine seeking to exclude the certificate of
innocence under Rule 403 of the Federal Rules of Evidence.
The judge denied the motion, and we review that ruling
under the deferential abuse-of-discretion standard. Doornbos
v. City of Chicago, 868 F.3d 572, 579 (7th Cir. 2017). The
defendants raised this issue again in their posttrial motion
for a new trial. That motion also failed, and we review the
judge’s decision for abuse of discretion. Glickenhaus & Co. v.
Household Int’l, Inc., 787 F.3d 408, 414 (7th Cir. 2015). Finally,
No. 18-2759 13
an evidentiary error warrants a new trial only if the error
had a substantial and injurious effect on the jury’s decision
and the result is inconsistent with substantial justice.
Doornbos, 868 F.3d at 579.
Under the familiar Rule 403 formula, “[t]he court may
exclude relevant evidence if its probative value is substan-
tially outweighed by a danger of … unfair prejudice, confus-
ing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” FED. R.
EVID. 403. The defendants argued below and reiterate here
that a certificate of innocence has only limited probative
value in a civil-rights case for wrongful conviction and its
relevance is far outweighed by the risk of unfair prejudice or
confusion of the issues.
The judge admitted the certificate of innocence largely
because he concluded that it was highly relevant to Patrick’s
case—in particular, to his malicious-prosecution claim.
Under Illinois law a plaintiff in a suit for malicious prosecu-
tion must prove not only that his conviction was vacated but
that the prosecution was favorably terminated in a manner
indicative of innocence. Swick v. Liautaud, 662 N.E.2d 1238,
1243 (Ill. 1996). A certificate of innocence entails a finding by
a state-court judge that a criminal defendant has shown by a
preponderance of the evidence that he “is innocent of the
offenses charged in the indictment or information.” 735 ILL.
COMP. STAT. 5/2-702(g)(3). The district judge held—and we
agree—that Patrick’s certificate of innocence was directly
relevant to an element on which he bore the burden of proof:
that the prosecution against him was terminated in a manner
indicative of innocence.
14 No. 18-2759
On the other side of the Rule 403 scale, a certificate of in-
nocence carries a risk of unfair prejudice if misunderstood.
The principal purpose of a certificate of innocence is to
remove legal obstacles that prevent a wrongly convicted
person from receiving relief in the Illinois Court of Claims.
Id. § 5/2-702(a). Accordingly, the certificate-of-innocence
statute expressly provides that “[t]he decision to grant or
deny a certificate of innocence shall be binding only with
respect to claims filed in the Court of Claims and shall not
have a res judicata effect on any other proceedings.” Id.
§ 5/2-702(j). Of course, removing res judicata effect does not
mean that a certificate of innocence is categorically inadmis-
sible in other proceedings. Still, the admissibility calculus
should be weighed with care.
Moreover, there were important limits to the probative
value of Patrick’s certificate of innocence. His petition simp-
ly summarized the evidence of his innocence; no affidavits
or other evidence was adduced, and no hearing was held.
The petition process permits only the Illinois Attorney
General and the State’s Attorney for Cook County to partici-
pate in opposition to a certificate of innocence, see id.
§ 5/2-702(e), and they took no position on Patrick’s petition.
His certificate of innocence thus does not really reflect a
factual finding arising from the crucible of the adversarial
process, which our legal system regards as the best means of
discovering the truth. The defendants were understandably
concerned that jurors may be tempted to give conclusive
weight to the certificate of innocence merely because it
reflects a formal judicial finding.
There is also a possibility that introducing a certificate of
innocence as evidence in a civil-rights suit may risk confus-
No. 18-2759 15
ing the issues. The jury in a case like this need not decide the
plaintiff’s innocence but instead is asked to determine
whether one or more of the defendants violated his federal
constitutional or state-law rights in the manner alleged. The
focus of a certificate-of-innocence petition is different; the
state-court judge considers the materials attached to the
petition in relation to the evidence presented against the
petitioner at his criminal trial. People v. Fields, 959 N.E.2d
1162, 1166 (Ill. App. Ct. 2011).
Well-crafted jury instructions can guard against the risk
of unfair prejudice or confusion of the issues. Here the judge
properly instructed the jury that it need not decide whether
Patrick committed the crimes charged against him in the
criminal case. The instruction went on to explain that
Patrick’s actual guilt or innocence was one of many factors
the jury was free to consider in determining whether the
defendants violated his rights. A more specific cautionary
instruction regarding the limits of a certificate of innocence
would have been better. See, e.g., Harris v. City of Chicago,
2018 WL 2183992, at *4–6 (N.D. Ill. May 11, 2018) (St. Eve, J.).
But the defendants did not propose one, so we cannot fault
the judge for not fashioning something more precise.
The defendants also argue that certain improper state-
ments by Patrick’s counsel in closing argument amplified the
prejudicial effect of the certificate of innocence, necessitating
a new trial. This is framed as a claim of cumulative error,
which considers whether the combined effect of multiple
trial errors was so severe that the trial was fundamentally
unfair. Thompson v. City of Chicago, 722 F.3d 963, 979 (7th Cir.
2013). Here is the passage the defendants claim was improp-
er:
16 No. 18-2759
Now, Mr. Scahill [the defendants’ attorney]
told you on the first day that Deon Patrick’s
certificate of innocence is not worth the paper
it was written on, and he told you that again
today. If you believe Deon Patrick, if you be-
lieve that Daniel Taylor was in lockup, if you
believe that these defendants violated his civil
rights, I hope you are offended by that concept.
I hope you are outraged and incensed, and I
hope that you show that you are by your com-
pensatory verdict for Deon Patrick. And that
you show them what the value is of a piece of
paper that says you’re actually innocent and
what the value of somebody’s life can be and
what the value is, ladies and gentlemen, of
21 years, 1 month, 8 days. Thank you.
The defendants’ attorney preserved an objection to this
“send a message” argument at sidebar. The defendants now
argue that this passage was an improper appeal to the jury’s
sense of outrage—and these improper statements, in turn,
risked inflaming the prejudice caused by the admission of
the certificate of innocence.
A jury has a duty to decide the case based on the facts
and the law; a statement by counsel urging it to decide
instead based on emotion is error. United States v. Morgan,
113 F.3d 85, 90 (7th Cir. 1997). On the other hand, improper
comments in closing argument rarely constitute reversible
error. Moylan v. Meadow Club, Inc., 979 F.2d 1246, 1250–51
(7th Cir. 1992). As is customary, the judge instructed the jury
to decide the case fairly and impartially based on the evi-
dence and the law as contained in the judge’s instruction
No. 18-2759 17
and without the influence of sympathy, prejudice, fear, or
public opinion. We see no reason to believe that this instruc-
tion was insufficient to cure any prejudice from this brief
passage of closing argument following a lengthy trial.
In sum, the certificate of innocence was directly probative
on an element of Patrick’s malicious-prosecution claim, and
the judge appropriately instructed the jury to limit the risk of
unfair prejudice or jury confusion. Although a more specific
limiting instruction would have done more to guard against
that risk, it was not error to admit the certificate of innocence
with the more general instruction that the judge gave here.
Nor was this isolated passage from closing argument so
egregiously improper in combination with the certificate of
innocence as to necessitate a new trial.
C. Instructional Error
The final argument concerns an error in the jury instruc-
tions. We review claims of instructional error de novo, and a
new trial is warranted only if an error in the instructions
caused prejudice. Glickenhaus & Co., 787 F.3d at 414.
As we’ve noted, the judge submitted four federal claims
to the jury: (1) a claim for violation of Patrick’s Fifth
Amendment right against compulsory self-incrimination
arising from the use of his coerced confession at trial; (2) a
claim for violation of Patrick’s right to due process arising
from the fabrication of evidence; (3) a claim for conspiracy to
violate Patrick’s civil rights; and (4) a claim for failure to
intervene to prevent these civil-rights violations. At issue
here is the jury instruction for the due-process “evidence
fabrication” claim.
18 No. 18-2759
We have recently clarified the contours of constitutional
claims based on allegations of evidence fabrication. A claim
for false arrest or pretrial detention based on fabricated
evidence sounds in the Fourth Amendment right to be free
from seizure without probable cause. Lewis v. City of Chicago,
914 F.3d 472, 476–78 (7th Cir. 2019). If fabricated evidence is
later used at trial to obtain a conviction, the accused may
have suffered a violation of his due-process right to a fair
trial. Id. at 479. And “misconduct of this type that results in a
conviction might also violate the accused’s right to due
process under the rubric of Brady … and Kyles … if govern-
ment officials suppressed evidence of the fabrication.” Id. at
480; see also Avery v. City of Milwaukee, 847 F.3d 433, 439–43
(7th Cir. 2017).
The essence of a due-process evidence-fabrication claim
is that the accused was convicted and imprisoned based on
knowingly falsified evidence, violating his right to a fair trial
and thus depriving him of liberty without due process. A
conviction premised on fabricated evidence will be set aside
if the evidence was material—that is, if there is a reasonable
likelihood the evidence affected the judgment of the jury.
United States v. Agurs, 427 U.S. 97, 103 (1976). The materiality
standard for a Brady evidence-suppression claim is stated
somewhat differently, referring to a “reasonable probability
that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” United
States v. Bagley, 473 U.S. 667, 682 (1985). Either way, if the
fabricated evidence was immaterial, it cannot be said to have
caused an unconstitutional conviction and deprivation of
liberty.
No. 18-2759 19
Patrick’s evidence-fabrication claim was grounded in an
alleged violation of due process. 1 Accordingly, the defend-
ants proposed a jury instruction that would have placed the
burden on Patrick to prove that the defendant (each one
considered individually) fabricated evidence against him;
the evidence was used at his criminal trial; the evidence was
material; and he was damaged as a result. This proposed
instruction tracked an updated pattern instruction that had
been proposed and published for comment by the Seventh
Circuit Committee on Pattern Civil Jury Instructions but had
not yet been finally approved for publication by the Seventh
Circuit Judicial Council.
The judge rejected the defendants’ proposal. Instead, he
instructed the jury as follows:
Plaintiff clams that all the Defendants violated
his right to due process under the Fifth and
Fourteenth Amendments to the United States
Constitution by fabricating evidence against
him. To succeed on this claim against any of
the Defendants, Plaintiff must prove each of
the following propositions by a preponderance
of the evidence:
1. The Defendant you are considering
knowingly fabricated false evidence or
participated in fabricating false evi-
dence;
1 But it was not a Brady claim. Patrick’s original complaint alleged Brady
violations, but the judge entered summary judgment for the defendants
and that ruling is not contested here.
20 No. 18-2759
2. That evidence was used to deprive Plain-
tiff of his liberty in some way; [and]
3. The fabricated evidence proximately
caused Plaintiff to be damaged.
This instruction was incomplete in that it failed to ex-
plain that Patrick had the burden to prove that the fabricated
evidence was used against him at his criminal trial and was
material. The instruction proposed by the defendants in-
cluded these elements, as reflected in the modified pattern
jury instruction, which has since been approved for publica-
tion. FEDERAL CIVIL JURY INSTRUCTIONS OF THE SEVENTH
CIRCUIT § 7.14 (2017). We therefore agree with the defend-
ants that it was error to reject their proposed instruction.
We’re satisfied, however, that the error was harmless.
There’s no dispute that Patrick’s coerced confession and the
falsified lineup report were used at his criminal trial to
convict him, and no one argues that this fabricated evidence
was immaterial. Four defendants were found liable on the
due-process claim: Detectives Villardita and Johnson, and
Officers Berti and Glinski. Detective Villardita was unques-
tionably involved in Patrick’s interrogation. Both detectives
were involved in falsifying the lineup report. Officers Berti
and Glinski were not, but all four officers were found liable
on two additional federal claims—conspiracy to violate
Patrick’s civil rights and failure to intervene. And the jury
additionally found Detectives Villardita and Johnson liable
for malicious prosecution and conspiracy under state law.
Finally, Detective Villardita was found liable for violating
Patrick’s Fifth Amendment right against compulsory self-
incrimination based on the admission of his coerced confes-
sion against him at trial.
No. 18-2759 21
The defendants have not challenged these liability find-
ings, any of which is independently adequate to support the
jury’s damages award for the more than two decades Patrick
wrongly spent in prison. We note again that the City stipu-
lated to liability if any of its officers were found responsible
for violating Patrick’s rights. There can be only one compen-
satory recovery regardless of the number of counts on which
the defendants were found liable.
The defendants maintain that the jury might have altered
its assessment of punitive damages if it had been properly
instructed on the due-process claim. That is doubtful. The
punitive awards were quite small—$10,000 each against
Officers Berti and Glinski and $20,000 each against Detec-
tives Villardita and Johnson—and were not likely to have
been materially influenced by the number of counts on
which the four defendants were found liable. To the contra-
ry, the jury was instructed, in accordance with the pattern
jury instruction, to consider the following factors in as-
sessing punitive damages: the reprehensibility of the de-
fendant’s conduct, the impact of that conduct on the
plaintiff, the relationship between the plaintiff and the
defendant, the likelihood the defendant would repeat the
conduct if an award is not made, and the relationship of the
award to the amount of harm the plaintiff suffered. Id. § 7.28.
In short, the jury was instructed to consider the nature of
each defendant’s conduct, not the number of legal violations
each defendant committed.
Accordingly, although the instruction on the due-process
claim erroneously omitted elements of Patrick’s burden of
proof, we find the error harmless under the circumstances of
this case.
22 No. 18-2759
III. Conclusion
In sum, the judge reasonably declined to dismiss the case
as a sanction for Patrick’s two falsehoods in his deposition. It
was not error to admit the certificate of innocence at trial,
though the better practice would have been to contextualize
it with a more specific cautionary instruction. Finally, alt-
hough the jury instruction on the due-process claim was
incomplete, the error does not require reversal.
AFFIRMED