Alan Beaman v. Dave Warner

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.