Nathson Fields v. Lawrence Wharrie , 672 F.3d 505 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2035
N ATHSON F IELDS,
Plaintiff-Appellee,
v.
L ARRY W HARRIE AND D AVID K ELLEY,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 C 1168—Matthew F. Kennelly, Judge.
A RGUED D ECEMBER 6, 2011—D ECIDED F EBRUARY 28, 2012
Before P OSNER, F LAUM, and SYKES, Circuit Judges.
F LAUM, Circuit Judge. Nathson Fields was wrongly
convicted of two murders. Twenty-five years after his
ordeal began, he was exonerated, and he presently
seeks money damages from those state officials he holds
responsible for his conviction. Among others, he names
Cook County, Illinois Assistant States Attorneys (“ASA”)
Larry Wharrie and David Kelley, alleging that they in-
duced false testimony during his trial and subsequent
retrial, suppressed the compromised nature of this testi-
2 No. 11-2035
mony and its acquisition from him, and denied him due
process.
Wharrie and Kelley raise an interlocutory appeal,
challenging that the district court improperly refused
them absolute immunity from Nathson Fields’ claims
against them under 42 U.S.C. § 1983. They also appeal
the district court’s determination that it enjoyed sup-
plemental jurisdiction over Fields’ state-law claims pur-
suant to 28 U.S.C. § 1367. They contend that Illinois
sovereign immunity law precludes federal jurisdiction,
and only the Illinois Court of Claims may hear Fields’
state-law claims.
We reverse the district court in part and find (1) that
Wharrie is entitled to absolute immunity for his alleged
solicitation of false testimony from Earl Hawkins after
Fields’ original trial, as well as for his alleged suppres-
sion of its falsity; and (2) that Fields failed to state a
claim against Kelley with respect to his alleged coercing
Randy Langston’s testimony. We affirm the district
court’s holding that it has jurisdiction over Fields’ state-
law claims, but suggest that it consider relinquishing
jurisdiction to the state court.
I. Background
A. Factual Background
In 1986, Fields, a member of the El Rukn street gang,
was convicted of murdering Talman Hickman and
Jerome Smith. He and his co-defendant, Earl Hawkins,
were sentenced to death.
No. 11-2035 3
Fields alleged that, in preparation for and during his
trial, Chicago police officers and ASA Wharrie solicited
false testimony against him from a fellow El Rukn gang
member, Anthony Sumner, whom they had arrested in
connection with separate murders. He maintains that
the police coerced Sumner to falsely implicate him
in Hickman and Smith’s murders, as well as those for
which Sumner was arrested. Sumner received a non-
prosecution agreement in exchange for his testimony,
which, in 1991, he confessed was false.
Fields’ appeal was ultimately denied. He then peti-
tioned for post-conviction relief. In 1996, a state-court
judge granted him a new trial, but did so on grounds
other than Sumner’s testimony. The judge ordered the
new trial in light of evidence that Fields’ co-defendant,
Earl Hawkins, bribed the initial trial judge, Thomas
Maloney, to assure his own acquittal. Hawkins was
convicted and Maloney returned the money when he
realized that federal authorities were investigating him;
however, the post-conviction state-court judge con-
cluded that Maloney’s pervasive corruption denied
Fields due process.
In 2009, following his second trial, the jury acquitted
Fields. He received a certificate of innocence.
Fields then sued the County of Cook; the City of
Chicago and its current and former officials; several
Chicago police officers; and ASAs Wharrie and Kelley
under Section 1983 and Illinois law. Pursuant to Sec-
tion 1983, he claimed that the defendants deprived him
of due process by engaging in suggestive identification
4 No. 11-2035
procedures, deliberately suppressing exculpatory evi-
dence, coercing witnesses to provide false evidence,
and suborning perjury. He claimed that individual de-
fendants failed to intervene to prevent the violation of
his constitutional rights, as well as that individual de-
fendants conspired to frame him for murder. Under
Illinois law, he claimed malicious prosecution, inten-
tional infliction of emotional distress, civil conspiracy,
respondeat superior, and indemnification.
According to Fields, Wharrie feared that a retrial
would reveal that he coerced Sumner’s testimony. There-
fore, Fields alleged, in 1987, while his direct appeal was
pending, Wharrie solicited false testimony from Earl
Hawkins, asking him to identify Fields as the shooter
and verify Sumner’s account of the murders to conceal
his own wrongdoing. In exchange for this revised testi-
mony, as well as testimony against other El Rukn gang
members, Wharrie arranged for Hawkins’ removal
from death row.
The prosecution did not introduce Hawkins’ revised
account of the murders during Fields’ appeal. Indeed,
the prosecution did not use Hawkins’ testimony until
a decade later when, in 1998, ASA Kelley agreed to
dismiss untried murder charges against him in ex-
change for his testimony against Fields at retrial.
Fields raised additional claims against ASA Kelley,
claiming that Kelley coerced eyewitness Randy
Langston to falsely identify him during his retrial as
involved in the murders. During the original trial,
Langston testified that Fields was involved, but he
No. 11-2035 5
later recanted his identifications. He testified during
Fields’ sentencing that he had been coerced by
Chicago police to incriminate Fields. Fields contended
that Kelley knew Langston had recanted, but none-
theless proffered his false testimony during retrial.
Fields alleges that at no time did either Wharrie or
Kelley disclose to him the tactics they employed to
elicit the testimony against him or that the testimony
was false.
B. Procedural Background
Wharrie and Kelley moved to dismiss Fields’ Third
Amended Complaint against them as barred by absolute
prosecutorial immunity and by Illinois sovereign
immunity law.
The district court denied their motion in part. It re-
jected absolute prosecutorial immunity for Wharrie
from the allegation that he negotiated for Hawkins’
false testimony at retrial and suppressed its falsity
from Fields. Since Wharrie no longer participated on
the team prosecuting Fields during his appeal or at his
second trial, nor acted on its behalf when he induced
Hawkins’ incriminating statements, the court found
him entitled only to qualified immunity.
The district court also rejected absolute immunity for
Kelley from the allegation that he coerced false state-
ments from Randy Langston at retrial. The court stated
that he was entitled to absolute immunity for his use of
the statements at trial and for withholding exculpatory
6 No. 11-2035
evidence on the means by which the statements were
obtained, but it concluded that qualified immunity was
the proper standard to apply to the act of coercion it-
self. The court only “assum[ed] that this conduct did
not merit the protection of absolute immunity.” It pro-
vided no further justification for this assumption.
Finally, the court rejected Wharrie and Kelley’s argu-
ment that Illinois sovereign immunity law preempted
its jurisdiction over Fields’ state-law claims against
them. The court found that, in this case, the necessary
criteria were not satisfied to treat claims against indi-
vidual officers in their personal capacities as claims
against the State. It retained jurisdiction.
Wharrie and Kelley appeal these judgments.
II. Discussion
A district court’s denial of a motion to dismiss based
on absolute immunity or state sovereign immunity are
questions of law that we review de novo. See Richman
v. Sheahan, 270 F.3d 430, 434 (7th Cir. 2001). We construe
the complaint in the light most favorable to Fields, “ac-
cepting as true all well-pleaded facts alleged, and
drawing all possible inferences in [his] favor.” See Heyde
v. Pittenger, 633 F.3d 512, 516 (7th Cir. 2011).
A. The Scope of a Prosecutor’s Absolute Immunity
A prosecutor is absolutely immune from suit for all
actions and decisions undertaken in furtherance of his
No. 11-2035 7
prosecutorial duties. Imbler v. Pachtman, 424 U.S. 409,
410 (1976). Whether or not an action falls within the
scope of his prosecutorial duties depends upon its func-
tion. See Van de Kamp v. Goldstein, 555 U.S. 335, 342-43
(2010) (citing Burns v. Reed, 500 U.S. 478, 486 (1991)). The
analysis hinges on whether the prosecutor is, at the time,
acting as an officer of the court, as well as on his action’s
relatedness to the judicial phase of the criminal process.
Imbler, 424 U.S. at 430, 431 n.33.
Absolute immunity extends beyond an individual
prosecutor’s decision to indict or try a case. See Van
de Kamp, 555 U.S. at 344-48. The protection endeavors
to preserve the functioning of the public office, id. at
345 (citing Kalina v. Fletcher, 522 U.S. 118, 125 (1997)),
and, thus, encompasses any action directly relevant to a
prosecutor’s ability to conduct a trial. Id. at 344 (distin-
guishing between administrative actions like training
prosecutors on properly disclosing to the defense
material evidence, which are shielded as prosecutorial
functions, and administrative decisions such as work-
place hiring and facilities management, which do not
fall withing the ambit of absolute immunity).1
1
We reiterate that absolute immunity for prosecutorial func-
tions protects judicial resources by preventing the retrial of
every criminal offense in a new forum, as well as encourages
prosecutors to volunteer for and vigorously perform the job
by shielding them from frivolous suits and the cor-
responding litigation costs. See Buckley v. Fitzsimmons, 509
U.S. 259, 270 n.4 (1993) (“Buckley III”) (citing Imbler, 424 U.S. at
424-25).
8 No. 11-2035
Nevertheless, a prosecutor has job responsibilities
that are not prosecutorial in nature. There exists a “dif-
ference between [his] advocate’s role in evaluating evi-
dence and interviewing witnesses as he prepares for
trial . . . and [his] detective’s role in searching for the
clues and corroboration that might give him probable
cause to recommend that a suspect be arrested . . . .”
Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993) (“Buckley
III”). Actions and decisions made in accordance with
the latter set of responsibilities entitle him only to
the qualified immunity granted to the police and other
members of the prosecution team who share those duties.
Id. (citing Hampton v. Chicago, 484 F.2d 602, 608 (7th
Cir. 1993)).
1. ASA Wharrie
Fields contends that ASA Wharrie suppressed the fact
that he asked Hawkins to lie if Fields were retried,
which was not a prosecutorial decision. He relies on
Houston v. Partee, 978 F.2d 362 (7th Cir. 1992), an
earlier case before us in which Wharrie was sued
under Section 1983 for due process violations and
received only qualified immunity. In Partee, Wharrie
prosecuted to conviction Elton Houston and Robert
Brown for murder. While Houston and Brown’s
appeals were pending, Wharrie participated in a long-
term investigation into the El Rukn gang and several of
its members. As part of that investigation, Anthony
Sumner was arrested and, subsequently, agreed to
become a cooperating witness. As he detailed numerous
No. 11-2035 9
crimes that he and the El Rukn committed, he disclosed
to prosecutors, including Wharrie, that J.L. Houston,
Earl Hawkins, and Derrick Kees committed the murder
for which Elton Houston and Brown were convicted.
Wharrie never volunteered this information to Elton
Houston and Brown. When Elton Houston and
Brown’s counsel requested any favorable details that
Sumner had revealed, Wharrie told them that he had
received none.
Several years later, Hawkins confessed to the murder
and corroborated Sumner’s account, exonerating Elton
Houston and Brown. Houston and Brown sued Wharrie
under Section 1983. As he does now, Wharrie invoked
absolute immunity. We denied that protection and con-
cluded that Wharrie enjoyed only qualified immunity
because he “had already succeeded in obtaining the
convictions of Houston and Brown, and the prosecution
of Houston’s and Brown’s appeal had been passed on
to others in the State’s Attorney’s office.” Id. at
366. We held that absolute immunity does not continue
indefinitely, but ends once a prosecutor is no longer
associated with the disposition of an individual case. Id.
at 366-67.
Relying on our Partee holding, Fields argues that since
Wharrie neither defended against his direct appeal nor
prosecuted him on retrial, he no longer functioned as a
prosecutor when he suppressed the false nature of
Hawkins’ retrial testimony against him.
Wharrie counters that the Supreme Court’s ruling in
Van de Kamp v. Goldstein, 555 U.S. 335, overrules Partee
to the extent that it held that a prosecutor’s direct par-
10 No. 11-2035
ticipation on a trial or appellate team is required for
absolute immunity. In Van de Kamp, the Court considered
whether or not an individual prosecutor’s supervisors
received absolute immunity for their failure to train him
on proper disclosure under Giglio v. United States, 405
U.S. 150 (1972), which resulted in a violation of the de-
fendant’s due process. 555 U.S. at 343-44. In granting
absolute immunity, the Court questioned whether
absolute immunity would apply where a plaintiff sought
damages “not only from the trial prosecutor but also
from a supervisory prosecutor or from the trial pros-
ecutor’s colleagues—all on the ground that they
should have found and turned over . . . impeachment
material . . . .” 555 U.S. at 345. The Court concluded that
absolute immunity would apply to all of these prosecutors
because their behavior, “taken individually or separately,
would involve preparation for trial and would be inti-
mately associated with the judicial phase of the criminal
process because it concerned the evidence presented at
trial.” Id. (internal quotation marks, omissions, and cita-
tions omitted). Wharrie claims that, like the Court’s
hypothetical, his suppression in Partee and at issue
here concerned the evidence presented at trial or on
appeal such that it is of no moment that he solicited
the evidence in question when he was not the designated
prosecutor on the case.
i. Brady and Giglio Obligations Are Functionally
Prosecutorial
Like all determinations into the type of immunity
available for a prosecutor, this inquiry is context-depend-
No. 11-2035 11
ent. Prosecutors do not function as advocates before
probable cause to arrest a suspect exists. See Buckley III,
509 U.S. at 274. If a prosecutor plants evidence before
someone is arrested, he enjoys only qualified immunity.
See id. at 275-76 (holding that a prosecutor’s fabrication
of false evidence before a suspect was arrested or a
grand jury was empaneled merited qualified immunity
because “[a] prosecutor may not shield his investiga-
tive work with the aegis of absolute immunity merely
because, after a suspect is eventually arrested, indicted,
and tried, that work may be retrospectively described
as ‘preparation’ for a possible trial”). Yet, for that same
fabrication of evidence, if he commits the act during a
judicial proceeding, he receives absolute immunity. See
Burns, 500 U.S. at 489-92. The question before us, then,
is whether, once judicial proceedings have been
initiated, the trial prosecutor, who fabricates evidence
after the trial, ceases to function in a prosecutorial
manner once he is no longer the specific prosecutor
handling the appeal or retrial.
In Partee, we answered this question affirmatively.
We concluded that once a prosecutor stopped partici-
pating on a particular trial team, his “knowledge of
and failure to disclose [material evidence] . . . had no
connection to [his] role as advocate for the State.” Partee,
978 F.2d at 366. The Supreme Court’s reasoning in Van de
Kamp, however, suggests that a prosecutor’s direct par-
ticipation in an appeal or retrial is no longer disposi-
tive of his right to absolute immunity. The Court’s hypo-
thetical conferred absolute immunity upon a pros-
ecutor’s colleagues and supervisors—who may not have
12 No. 11-2035
been directly involved in his particular case—for their
failure to satisfy their disclosure obligations under
Giglio, 405 U.S. 150, and Brady v. Maryland, 373 U.S.
83 (1963). Van de Kamp, 555 U.S. at 345.
The Court did not explicitly state that the colleagues
and supervisors had any individual Brady or Giglio ob-
ligations. See Van de Kamp, 555 U.S. at 344-45. That is, it
did not expressly instruct us that every individual pros-
ecutor in an office owes a Brady or Giglio obligation to
a defendant solely due to his employment in the
office, regardless of whether or not he is involved in
that defendant’s prosecution.2 Yet, for purposes of the
hypothetical, the Court assumed that the supervisors
and office prosecutors in question had Brady and Giglio
obligations to the defendant and suggested that, insofar
as these disclosure responsibilities existed, absolute
immunity applied. Hence, Brady and Giglio duties are
functionally prosecutorial—they are intimately related to
the judicial phase of the criminal process. See Imbler, 424
U.S. at 430; see also Brady, 373 U.S. at 87 (“[S]uppression by
the prosecution of evidence favorable to an accused . . .
violates due process where the evidence is material
either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.”).
While other state actors, like the police, share the pros-
ecutor’s constitutional obligation to disclose exculpatory
2
The Supreme Court, therefore, has not overruled our view that
“absolute immunity [does not] indefinitely attach[] to every
[prosecutor in an office] once a prosecution begins.” See Partee,
978 F.2d at 366.
No. 11-2035 13
evidence to the defendant, the prosecutor owes a
distinct, if not heightened, disclosure obligation to the
defendant once judicial proceedings commence. See
Arizona v. Youngblood, 488 U.S. 51, 56-58 (1988) (recognizing
that police have a due process obligation to preserve
and disclose evidence they know to have exculpatory
value and distinguishing that duty, and the framework
by which it is analyzed, from one imposed by Brady).
As the Court explained in Brady, the prosecutor is the
“architect” of the trial, 373 U.S. at 87-88, and his purpose
is to both secure criminal convictions and ensure that
“criminal trials are fair,” id. at 87, even where his police
officers would not. See also Kyles v. Whitley, 514 U.S.
419, 438 (1995) (identifying the prosecutor as “the final
arbiter[] of the government’s obligation to ensure
fair trials”). Thus, we impose upon the prosecutor the
responsibility to disclose not only any evidence within
his own files, see United States v. Agurs, 427 U.S. 97, 110
(1976), but also any evidence possessed exclusively
by those actors assisting him in investigating and trying
his case, see Whitley, 514 U.S. at 437 (“[T]he individual
prosecutor has a duty to learn of any favorable evi-
dence known to the others acting on the government’s
behalf . . . .”). Once a defendant is indicted, the dis-
closure obligation and the due process in question cor-
respond to his trial rights, and a prosecutor’s failure
to uphold that obligation, in the form of suppression,
coincides with his prosecutorial function.
One might argue that since we allow civil suits
against police officers for causing Brady violations, see,
e.g., Holland v. City of Chicago, 643 F.3d 248, 255 (7th Cir.
14 No. 11-2035
2011) (noting that “police officers can be held liable
under Brady and its progeny when they withhold ex-
culpatory evidence from prosecutors and the with-
holding of evidence is ‘material’ ”), failure to fulfill due
process in this manner is not a functionally prosecutorial
action. In our view, however, a Brady violation is not
committed unless and until a prosecutor, in the
course of preparing for or conducting a trial or direct
appeal, does not turn over the material evidence in ques-
tion. See discussion of Buckley v. Fitzsimmons (“Buckley IV”)
infra Part II.A.1.iv. Brady and Giglio violations breach
a defendant’s trial rights and are, thus, inherently pros-
ecutorial in nature. Allowing a police officer to be sued
for his role in eventually causing the prosecutor to
violate Brady or Giglio does not alter the nature of the
violation.
We recognize that this analysis allows for police
officers to potentially incur financial liability where a
prosecutor may not, even though the prosecutor and
the police officers may both fabricate or suppress evi-
dence. Herein lies the rub: absolute immunity doc-
trine focuses on whether the nature of the action is prose-
cutorial, not the fact that the actor is a prosecutor;
Brady and its progeny, by contrast, elevate the pros-
ecutor—qua prosecutor—as ultimately responsible for
fulfilling the State’s obligation to provide fair process.
See Brady, 373 U.S. at 87-88; see also Whitley, 514 U.S. at
538; Agurs, 427 U.S. at 111. Under Brady, the office of pros-
ecutor entails a special duty to “get it right.” Perhaps
counterintuitively, this heightened duty carries with it
greater immunity from financial liability. Yet, so long as
No. 11-2035 15
we view Brady and Giglio as distinct versions of the right
to due process, and the prosecutor as responsible for
ensuring Brady and Giglio compliance, we must also
recognize that in fulfilling this responsibility, the prosecu-
tor acts as an officer of the court embroiled in the
judicial phase of the criminal process, see Imbler, 424 U.S.
at 430, 431 n.33. For the reasons we value absolute pros-
ecutorial immunity, see supra note 1, a prosecutor is
entitled to the protection with respect to his actions
and decisions pertaining to his fulfillment of Brady and
Giglio.
Our immunity analysis, therefore, must focus not only
on whether a prosecutor is actively participating on a
trial team when he suppresses material evidence, but
also on whether he owes a continuing Brady or Giglio
obligation to the defendant in question. If he does,
he functions as a prosecutor when he commits the sup-
pression.3
3
Since Imbler, the Court has rejected the distinction between
suppressing exonerating evidence and fabricating incrim-
inating evidence as relevant for purposes of invoking absolute
prosecutorial immunity because “[t]he distinction is not
susceptible of practical application. A claim of using perjured
testimony simply may be reframed and asserted as a claim
of suppression of the evidence upon which the knowledge of
perjury rested.” 424 U.S. at 431 n.34; see also Van de Kamp,
555 U.S. at 343.
16 No. 11-2035
ii. A Prosecutor’s Brady and Giglio Duties Persist
Until a Defendant’s Conviction Becomes Final
A prosecutor’s Brady and Giglio duties may survive the
conclusion of a trial. See Imbler, 424 U.S. at 427 n.25
(“[A]fter a conviction, the prosecutor is also bound by
the ethics of his office to inform the appropriate
authority of after-acquired or other [material] informa-
tion that casts doubt upon the correctness of the convic-
tion.”). When a State grants a criminal defendant a right
to direct appeal, “the proceedings in the appellate
tribunal are . . . part of the process of law under which
he is held in custody by the State, and to be considered
in determining any question of alleged deprivation of
his life or liberty contrary to the Fourteenth Amend-
ment.” Frank v. Magnum, 237 U.S. 309, 327 (1915) (internal
citations omitted); see also Evitts v. Lucey, 469 U.S. 387, 393
(1985) (“[I]f a State has created appellate courts as an
integral part of the system for finally adjudicating the
guilt or innocence of a defendant, the procedures used in
deciding appeals must comport with the demands of
the Due Process and Equal Protection Clauses of the
Constitution.”) (internal citations omitted). Therefore, a
defendant’s conviction is not final as a matter of law
until he exhausts the direct appeals afforded to him,
and, until that exhaustion, he is entitled to the full
breadth of due process available. See Gonzalez v. Thaler,
No. 10-895, 2012 WL 43513, at *3, 9 (S. Ct. Jan. 10, 2012)
(holding that “[f]or petitioners who pursue direct review
all the way to [the Supreme Court], the judgment
becomes final at the conclusion of direct review—when
this Court affirms a conviction on the merits or denies
No. 11-2035 17
a petition for certiorari [and that] [f]or all other
petitioners, the judgment becomes final at the expiration
of the time for seeking such review—when the time for
pursuing direct review in this Court, or in state court,
expires”); Skinner v. Switzer, 131 S. Ct. 1289, 1303 (2011)
(Thomas, J., dissenting) (explaining that “[t]rial pro-
cedures are used to initially convict a prisoner; appellate
procedures review the validity of that conviction before
it becomes final; and collateral review procedures
permit challenge to the conviction after it is final”) (em-
phasis added). Accordingly, a prosecutor’s Brady and
Giglio obligations remain in full effect on direct appeal
and in the event of retrial because the defendant’s con-
viction has not yet become final, and his right to
due process continues to demand judicial fairness. See
Monroe v. Blackburn, 476 U.S. 1145, 1148-49 (1986) (Mar-
shall, J., dissenting from denial of certiorari) (“When
the sovereign has decided that justice will be best
served by qualifying the finality of a conviction so that a
convicted defendant may yet prove his innocence, its
attorney is not free to choose otherwise. And until
factfinding proceedings, or the possibility of them, is [sic]
terminated, the State remains bound by the rules of
simple fairness that Brady held to be of constitutional
dimension.”). His disclosure responsibilities do not end
until the defendant either has been acquitted or has
availed himself of all the direct process to which he is
entitled. See Dist. Attorney’s Office for the Third Judicial
Dist. v. Osborne, 129 S. Ct. 2308, 2320 (2009) (distinguishing
a defendant’s due process interest in his postconviction
relief after he has received a fair trial from his interest
18 No. 11-2035
before his conviction becomes final and rejecting Brady
and Giglio as continuing obligations on collateral chal-
lenge).
iii. ASA Wharrie is Absolutely Immune From Suit
The district court suggests that because Wharrie was
preparing for other trials and no longer directly involved
in Fields’ appeal or retrial, this fact wrests from him
his prosecutorial function. We disagree. Wharrie knew
the case’s evidentiary strengths and weaknesses; he
knew what mistakes transpired during the original trial;
he conducted the interviews with the original witnesses;
he knew how those witnesses’ testimony had been ac-
quired; he knew how those witnesses’ stories had or
had not changed over time; and he knew what, if any,
relevant information had been acquired in the course of
the State’s Attorney’s Office’s further investigations
into the El Rukn gang’s criminal activities. His Brady
and Giglio obligations did not expire because he no
longer personally handled the appeal or retrial. See
Giglio, 405 U.S. at 154 (finding that where an individual
prosecutor presented the Government’s case to the
grand jury, but did not try the case, the individual pros-
ecutor’s uninvolvement with the trial was not con-
trolling, and his failure to inform his supervisors or
associates about material evidence violated Brady);
see also Evans v. Virginia, 471 U.S. 1025, 1029 n.3 (1985)
(Marshall, J., dissenting from denial of certiorari) (citing
Giglio, 405 U.S. at 154) (stating that for purposes of a
Brady or Giglio violation, “it [does not] matter whether
No. 11-2035 19
the state attorney who appeared at the sentencing
hearing, and who admitted that he knew the evidence
on which the State relied was false, took part in pre-
paring the State’s briefs [on appeal]. The prosecutor’s
office is an entity, not just a group of isolated individuals,
and the [original] prosecutor is responsible for assuring
that relevant information is communicated among the
lawyers in the office”). As the original prosecutor on the
case, Wharrie had a continuing Brady obligation to
reveal material evidence to the defense until Fields’
conviction became final, as the ongoing judicial process
continued to evolve. See Imbler, 424 U.S. at 427 n.25; Agurs,
427 U.S. at 111 (noting “special significance to the pros-
ecutor’s obligation to serve the cause of justice”). He
was not an uninvolved prosecutor in the office who had
never before heard of the case or knew relatively little
about its details and happened upon and suppressed
material evidence. Were he so, we could fairly
characterize him as “in the same position as . . . state law
enforcement officials who, during a large scale investiga-
tion of the El Rukn gang, discovered—and then sup-
pressed—evidence which could have exculpated
[Fields].” See Partee, 978 F.2d at 367. As the original prose-
cutor, however, he was not fully divorced from Fields’
judicial proceedings until all direct judicial remedies
were exhausted and Fields’ conviction became final. It
follows that the immunity attendant to his prosecutorial
disclosure obligation survives his departure from the
courtroom as well.
The Supreme Court, in Imbler, identified the policy
aims underlying absolute immunity, which support its
20 No. 11-2035
application in this situation. 424 U.S. at 427. It warned
that subjecting prosecutors to financial liability could
“dampen the prosecutor’s exercise of his [prosecutorial]
duty to bring to the attention of the court or of proper
officials all significant evidence suggestive of innocence
or mitigation.” Id. at 427 n.25. While a prosecutor guilty
of the fabrication with which Wharrie is accused might
never be incentivized to reveal his violation—regardless
of absolute immunity—we recognize this possibility as a
cost outweighed by absolute immunity’s effect on the
“ultimate fairness of the operation of the [judicial]
system [overall].” Id. at 427. Though a charged uncon-
stitutional act, Wharrie’s alleged suppression in this
case was intimately associated with the judicial phase
of the criminal process and is, therefore, immune from
civil suit. See id. at 430.
iv. Even If Wharrie Were Not Absolutely Immune
as the Original Prosecutor on the Case, Fields
Fails to State a Claim Against Him
Assuming arguendo that Wharrie did not act
prosecutorially when he obtained Hawkins’ testimony,
Fields did not suffer a constitutional harm with respect
to Hawkins’ new, incriminating version of events until
ASA Kelley introduced the testimony at retrial. In
Buckley v. Fitzsimmons (“Buckley IV”), we distinguished
between constitutional wrongs completed out of court
and regrettable actions out of court that, by themselves,
do not support recovery under Section 1983. 20 F.3d
789, 796 (1994). We explained that fabricating evidence,
No. 11-2035 21
including in the form of testimony, is not an actionable
constitutional wrong.4 Id. at 795-96. The constitutional
violation occurs when the means by which the testimony
was acquired are not disclosed at trial—or when other
information that impeach the testimony’s reliability
are not shared with the defense. Id. In this case, the con-
stitutional violation occurred when, at retrial, the pros-
ecution used Hawkins’ testimony and never re-
vealed to Fields that Wharrie had asked Hawkins to lie.
See id. at 796 (citing Mooney v. Holohan, 294 U.S. 103,
112 (1935)).
Had Wharrie, after negotiating for Hawkins’ false
testimony, handled the retrial himself, his violation of
Fields’ due process rights would be absolutely immu-
nized. See id. at 796-97 (citing Jones v. Chicago, 856 F.2d
985, 993-94 (7th Cir. 1988)). He would have been
complicit in the fabrication of testimony during the
“investigatory phase” of the retrial, but the constitu-
tional injury would be the direct result of the absolutely
immunized prosecutorial decision to proceed to trial
and introduce the testimony. See id. As he did not do so,
the critical question is whether ASA Kelley knew that the
testimony was false when he proceeded to retry the case
and introduced the testimony.
In Buckley IV, we noted that an actionable, out-of-court
wrong exists against police officers who fabricate
4
We also explained that inducing a witness’s testimony by
“promises to go easy” does not itself violate the Constitution.
Buckley IV, 20 F.3d at 794.
22 No. 11-2035
evidence during the investigatory phase of a case and
“bil[k]” a prosecutor into filing charges that he would
not have filed but for that evidence. 20 F.3d at 796-97
(citing Jones, 856 F.2d at 993-94). The officers would
receive only qualified immunity, though the prosecutor
would be absolutely immune from suit. Id. We left open
the question of whether this analysis applied to a pros-
ecutor who handled the investigatory phase of a case
and similarly deceived his successor into continuing
prosecution. Id. at 797 n.2. Assuming, for the sake of
argument, that we answer this question affirmatively,
Wharrie would be subject to financial liability only
if Kelley did not know that he had asked Hawkins to
lie and would not have retried the case had he been
aware of that information. See id.Fields suggests, however, that Kelley knew Hawkins’
testimony was false and retried the case regardless.
Sumner recanted his identification in 1991, almost
seven years before Kelley joined the prosecution team,
and Kelley was aware that Hawkins’ new story was a
marked departure from the prosecution’s original case.
Although he does not explicitly state that Kelley knew
that Wharrie asked Hawkins to lie, he strongly implies
that he did. Therefore, the alleged constitutional harm
occurred as Kelley exercised his prosecutorial duties at
trial and resulted from his prosecutorial discretion re-
garding how to try his case. Fields has not, therefore,
stated a claim against Wharrie based upon his soliciting
Hawkins’ false testimony.
No. 11-2035 23
2. ASA Kelley
For the same reasons, Fields fails to state a claim
against Kelley on the grounds that he solicited false
testimony from Randy Langston before retrial. Fields
contends that, prior to ever being assigned a role on the
retrial team, Kelley “used coercive tactics to induce
eyewitness Randy Langston to return back to the false
testimony he had given at the first trial . . . .” He
argues that because the act of solicitation occurred
before Kelley was a prosecutor on the case, Kelley
enjoys only qualified immunity for coercing the false
testimony.
This analysis misses the point. Prior to the introduction
of Langston’s false testimony during retrial, Fields
suffered no constitutional violation. The fact that the
testimony was improperly coerced violated only
Langston’s constitutional rights. See Buckley IV, 20 F.3d
at 794-95 (“Coercing witnesses to speak . . . is a genuine
constitutional wrong, but the persons aggrieved would
be [the person being interrogated] rather than [the de-
fendant, if they are not the same].”).
Kelley violated Fields’ due process rights when he
introduced the false testimony at trial and failed to reveal
to him the coercion used to elicit it. See id. at 795-96.
Had Kelley been unaware of the coerced nature of the
testimony, Fields could sustain a claim against those
parties that coerced the confession and “bilked” Kelley
into retrying the case on its basis. See id. at 796-97 (citing
Jones, 856 F.2d at 993-94). These are not the facts of
this case, however. Kelley was aware of the coercion
24 No. 11-2035
applied: he was the one that applied it. Accordingly,
Fields cannot maintain an independent claim against
him for the coercion of the testimony independent of
its use at retrial.5 See id.B. The District Court Enjoys Supplemental Jurisdiction
Wharrie and Kelley claim that the district court erred
in retaining jurisdiction over Fields’ state-law claims.
Our recent decision in Rodriguez v. Cook County, Illinois
makes clear that a state employee’s sovereign-im-
munity defense does not impact a federal court’s juris-
diction over a case. No. 11-1401, 2011 WL 6287910, at *3-4
(7th Cir. Dec. 15, 2011). Accordingly, we conclude
that the district court has jurisdiction over the state-
law claims.
Nevertheless, in light of our holding regarding Wharrie
and Kelley’s absolute immunity, the district court may
5
Note that since Fields’ retrial resulted in acquittal and a
certificate of innocence, suppressing the coercion might not be
a Brady violation at all because, counterintuitively, it was not
material. See United States v. Bagley, 473 U.S. 667, 682 (1985)
(citing Strickland v. Washington, 466 U.S. 668, 694 (1984)) (ex-
plaining that evidence is material “if there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different”); see
also Whitley, 514 U.S. at 434 (“[T]he question is not whether
the defendant would more likely than not have received a
different verdict with the evidence, but whether in its absence
he received a . . . verdict worthy of confidence.”).
No. 11-2035 25
wish to consider declining to exercise its supplemental
jurisdiction. Without any remaining claims against
Wharrie and Kelley under Section 1983, we suggest that
the challenging state-law issues presented may more
appropriately be resolved by the state court. See RWJ Mgmt.
Co., Inc. v. BP Prods. N. Am., Inc., No. 11-1268, 2012 WL
499043, at *2-3 (7th Cir. Feb. 16, 2012) (discussing the
presumption in favor of relinquishing supplemental
jurisdiction when no federal claims remain); Al’s Serv.
Ctr. v. BP Prods. N. Am., Inc., 599 F.3d 720, 727 (7th Cir.
2010) (same). We, thus, remand to the district court to
determine whether it wishes to (1) retain supplemental
jurisdiction over Fields’ state-law claims and determine
the immunity, if any, to which Wharrie and Kelley are
entitled under Illinois law, see 28 U.S.C. § 1367(c)(3) (“The
district courts may decline to exercise supplemental
jurisdiction over a claim . . . if . . . the district court
has dismissed all claims over which it has original juris-
diction . . . .”) (emphasis added), or (2) dismiss the state-
law claims without prejudice, see Harvey v. Town of
Merrillville, 649 F.3d 526, 532-33 (7th Cir. 2011) (“[I]t is
the well-established law of this circuit that the usual
practice is to dismiss without prejudice state supple-
mental claims whenever all federal claims have been
dismissed prior to trial.” (quoting Groce v. Eli Lilly & Co.,
193 F.3d 496, 501 (7th Cir. 1999))).
III. Conclusion
For the foregoing reasons, we R EVERSE the district
court’s denial of absolute immunity and hold that
26 No. 11-2035
Wharrie and Kelley are immune from suit under
Section 1983. With respect to the district court’s jurisdic-
tion over Fields’ state-law claims, we R EMAND this case
to the district court for further proceedings consistent
with this opinion.
2-28-12