Evans, Michael v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-3401

MICHAEL EVANS,

Plaintiff-Appellant,

v.

CITY OF CHICAGO, ANTHONY KATALINIC, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 3570—David H. Coar, Judge.

____________

ARGUED SEPTEMBER 18, 2007—DECIDED JANUARY 23, 2008

____________

Before EVANS, WILLIAMS, and SYKES, Circuit Judges.

EVANS, Circuit Judge. This is the second time we

are considering Michael Evans’ case against the City of

Chicago and several of its police officers alleging that the

defendants conspired to falsely convict him of the abduc-

tion, rape, and murder of 9-year-old Lisa Cabassa 31 years

ago. In 2006, we affirmed the district court’s denial of

the police officer defendants’ motion for summary judg-

ment based on their claim of qualified immunity. Evans v.

Katalinic, 445 F.3d 953 (7th Cir. 2006). Now, after a

jury returned a verdict for the City and its officers, we

consider several trial-related rulings on Mr. Evans’ appeal.

In particular, we review whether the district court’s

2 No. 06-3401

decision shortly before trial both to allow several officers

who had declined all previous discovery requests on Fifth

Amendment grounds to testify and to exclude evidence

of their prior silence is consistent with Harris v. City

of Chicago, 266 F.3d 750 (7th Cir. 2001).

Twenty-seven years after his conviction, DNA testing

established that neither Evans nor his co-defendant, Paul

Terry, was the source of semen found on Lisa Cabassa’s

body. Their convictions, based in significant part on the

testimony of a woman named Judy Januszewski, were

eventually vacated. The state’s attorney declined to

reprosecute and Governor Rod Blagojevich subsequently

pardoned Evans (and Terry) on the basis of innocence.

In 2004, Evans filed this suit pursuant to 42 U.S.C.

§ 1983, claiming that the police officers’ efforts to get

Januszewski to identify and testify against him, along

with other alleged improprieties, deprived him of due

process. (Our 2006 decision contains a full discussion of

these facts, so we will not repeat them here.)

Back in 2004, Evans sought to depose the defendant

officers. The officers instead moved for a protective order,

arguing that they should not have to be deposed in light of

an ongoing investigation by a special prosecutor into

certain abuses committed by police officers in their area

headquarters around the time of the Cabassa investiga-

tion.1 Acknowledging that the Cabassa case may have been

1

In 2002, the Circuit Court of Cook County appointed a special

prosecutor “to investigate allegations of torture, perjury, obstruc-

tion of justice, conspiracy to obstruct justice, and other offenses

by police officers under the command of Jon Burge at Area 2 and

Area 3 Headquarters in the city of Chicago during the period

from 1973 to the present.” (The Cabassa investigation fell

within the applicable area and time period but was not under

(continued...)

No. 06-3401 3

within the special prosecutor’s investigation—an issue the

parties still debate—Magistrate Judge Schenkier gave

the officers until January 31, 2005 (mid-way through

discovery) to decide whether to participate in discovery

or assert a privilege. When January arrived, Officers

Dignan, DiGiacomo, Hill, Katalinic, McKenna, Leracz,

Ryan, and Swick (the “5A officers”) took the same

position: all declined to testify, asserting their rights

under the Fifth Amendment.

On November 22, 2005, after fact discovery had closed

but before the close of all discovery, Katalinic changed

his mind and offered to waive his Fifth Amendment

privilege. He then filed an amended answer and amended

discovery responses. In the final pretrial order, filed on

January 13, 2006, the defendants listed Katalinic as a

“will call” witness.

On January 14, 2006, Evans moved to bar the testimony

of the 5A officers. He acknowledged that Katalinic was

an “arguable exception” but maintained that Katalinic

had to move to reopen discovery and seek a new deposi-

tion. On January 16, Katalinic so moved. On January 18

(12 days before the scheduled trial), the other 5A officers

requested similar treatment if the special prosecutor’s

report vitiated their concerns about self-incrimination. The

case was then stayed until May 1 during the qualified

immunity appeal.

1

(...continued)

Burge’s command.) During the investigation, the special prosecu-

tor subpoenaed 40 Chicago police officers, including three of

the named defendants in this case (Dignan, Hill, and Katalinic),

to testify before a special grand jury. Most of the officers re-

fused to testify on Fifth Amendment grounds. In April 2006,

the special prosecutor completed his investigation. His July 19,

2006, report concluded that the statute of limitations had run.

4 No. 06-3401

The 5A officers renewed their request to testify on

May 16, 2006, maintaining that the forthcoming release of

the special prosecutor’s report would allow them to

reevaluate their position. They offered to respond to

discovery, make themselves available for depositions, and

give Evans additional follow-up time if they decided to

testify. Evans opposed this motion, arguing that such

relief would effectively deny him the benefits of discovery.

On May 19, 2006, District Judge David Coar rejected the

5A officers’ request, saying that they had “made a calcu-

lated determination, and [would] be bound by their deter-

mination.” Despite this statement, Judge Coar expressly

reserved ruling and allowed the parties to brief the issue.

On June 2, 2006, Judge Coar took up the issue again.

This time he sided with the 5A officers. Regarding

Katalinic, Judge Coar ruled that he had “made a more

timely request” and therefore could testify if he answered

all written discovery and appeared for a deposition

within 10 days. As to the other 5A officers, Judge Coar

found that they had not “acted timely” and that “there is

prejudice.” However, Judge Coar gave them the same

opportunity to testify under the same conditions as

Katalinic. Evans then requested that, if the 5A officers

decided to testify, they give an explanation regarding

their decision, considering that the special prosecutor’s

report still had not been issued (although his investiga-

tion recently had ended). Evans also asked for the opportu-

nity to object based on the officers’ justification. Judge

Coar responded that Evans’ counsel could make what-

ever objections he wanted, but the schedule would stand.

On June 5, 2006, Evans offered to waive punitive

damages against any 5A officer who agreed not to testify.

No. 06-3401 5

Dignan accepted Evans’ offer.2 The other officers chose

to testify, serving Evans with written discovery and

submitting to redepositions, which were completed by

July 8.3

On July 6, 2006, Evans submitted a motion requesting

that the 5A officers either be defaulted or bound to their

prior privilege assertions. The 5A officers filed a cross-

motion to bar any mention of their prior Fifth Amend-

ment assertions. Judge Coar took up both motions on

July 11, 2006, just before opening statements. In a brief

ruling, Judge Coar denied Evans’ motion and granted the

officers’. Thus, Evans’ counsel was barred at trial from

making any reference to the 5A officers’ prior invocation

of their Fifth Amendment privilege.

That same day, Judge Coar also ruled on the defendants’

motion to bar the testimony of Dignan, the officer who

accepted Evans’ offer and would be asserting his Fifth

Amendment rights in response to all questions at trial.

Instead of allowing Evans to call Dignan to the stand,

Judge Coar ruled that he would instruct the jury that

Dignan had refused to answer questions about the case

and that they could draw an adverse inference from

his refusal to take the stand.

2

Dignan later tried to waive his Fifth Amendment privilege

and testify, but Judge Coar made him stick to his deal.

3

The redepositions were heated to say the least. The controversy

seems to have revolved around the presence of Flint Taylor, Paul

Terry’s attorney, who was one of Evans’ trial counsel but not an

attorney of record at the time. According to the 5A officers, Evans

“insisted” on Taylor’s attendance and “refused” to proceed

without him. Evans, on the other hand, claims that Taylor had

sat in on depositions previously without objection and that

several 5A officers unjustifiably “walked out” on their

redepositions.

6 No. 06-3401

Finally, near the end of the trial, Judge Coar ruled on

Evans’ proposed instructions, verdict form, and special

interrogatory allowing the jury to find for him it if deter-

mined that his rights were violated by “any” City of

Chicago employee “other” than the named officers. Judge

Coar rejected this language as confusing and beyond the

jury’s responsibility. However, he adopted Evans’ pro-

posed conspiracy instruction, providing for liability if

“at least one defendant acting voluntarily and in concert

with at least one other person” violated Evans’ rights.

The case went to the jury on four claims: federal due

process, conspiracy, and failure to intervene claims, and a

state law malicious prosecution claim. The jury returned

a verdict that exonerated the officers, and on August 8,

2006, Judge Coar granted judgment on the verdict. On

August 29, he corrected the judgment to include the

City of Chicago. This appeal followed.

Of the three arguments raised on this appeal, 70 percent

of the ink in the briefs is expended on the question of how

Judge Coar resolved the thorny matter of the Fifth Amend-

ment issue regarding the 5A officers. We will consider

that matter last, after we briefly resolve the two other

issues raised by Mr. Evans: the handling of Dignan’s

Fifth Amendment issue and the rejection of certain

proposed instructions and verdict questions regarding

the City’s liability.

Because an adverse inference can be drawn in a civil

case when a witness refuses to answer a question on Fifth

Amendment grounds, a party seeking to benefit from

the inference always prefers to maximize and dramatize

the moment. And that’s what Evans wanted to do: call

Dignan as a witness so the jury could watch him take the

No. 06-3401 7

oath and then decline to answer a series of questions.4

Evans’ desire to proceed in this fashion is certainly

understandable. But Judge Coar elected to bring Dignan’s

assertion of his Fifth Amendment rights to the jury in

a less dramatic fashion, and we can reverse his decision

on this point only if it was a clear abuse of his discretion.

See Doe v. Smith, 470 F.3d 331, 341 (7th Cir. 2006). And

this we cannot do.

Evans argues that, under Baxter v. Palmigiano, 425 U.S.

308 (1976), he had a right to call Dignan to the stand

solely to invoke his Fifth Amendment privilege. That

claim is too broad. In Baxter, the Supreme Court held

that “the Fifth Amendment does not forbid adverse

inferences against parties to civil actions when they re-

fuse to testify in response to probative evidence offered

against them[.]” Id. at 318. We have interpreted Baxter to

mean that the negative inference against a witness

who invokes the Fifth Amendment in a civil case is

permissive, not required. Daniels v. Pipefitters’ Ass’n

Local Union No. 597, 983 F.2d 800, 802 (7th Cir. 1993).

The situation presented here was rather unique. Evans

candidly admits that he was “pleased” when Detective

Dignan accepted his offer to rid himself of the punitive

damage claim against him in exchange for a promise to

continue to assert his Fifth Amendment privilege. Given

this rather unusual scenario, it would be difficult to

conclude that Judge Coar abused his discretion by not

embracing this situation for its maximum effect.

The judge instructed the jurors that they could draw an

adverse inference as to liability based on Dignan’s asser-

4

A witness’s answer could range from “I refuse to answer on the

ground that my answer may tend to incriminate me” to the

more mundane “On the advice of counsel, I decline to answer.”

8 No. 06-3401

tion of the Fifth Amendment to questions about the case.

There is no reason to think that the jurors ignored the

instructions or assumed that Dignan was not asked

questions relevant to Evans’ claims. Indeed, during clos-

ing argument, Evans’ counsel articulated specific ques-

tions that Dignan refused to answer, such as, “did you

conspire to frame Michael Evans with the other defen-

dants?” The jury’s verdict indicates that it declined to

draw a negative inference from Dignan’s assertion of his

Fifth Amendment rights. Given this state of affairs, we

find no error in how Judge Coar decided to resolve the

issue.

We turn next to the claim that Evans’ proposed instruc-

tions, verdict form, and special interrogatory regarding

the City of Chicago’s liability were wrongly rejected. We

review decisions regarding instructions and the like for

an abuse of discretion. Latino Foods Marketers, LLC v.

Olé Mexican Foods, Inc., 407 F.3d 876, 880 (7th Cir. 2005).

Evans’ instructions, verdict form, and special interroga-

tory concerned an agreed-upon stipulation that the City

would accept judgment against it “if and only if the

finder of fact in this case finds that City employees

violated plaintiff ’s constitutional rights as alleged in the

first amended complaint.” Thus, the City waived its right

under Monell v. New York City Department of Social

Services not to be held liable in damages without proof

that the City by its “policy or custom” caused the alleged

constitutional violation. 436 U.S. 658, 694 (1978). Evans’

proposed instruction allowed the jury to find for him if

it determined that his rights were violated by “any

other” City of Chicago employee (that is, other than the

named defendants). Judge Coar rejected this language

but adopted Evans’ proposed conspiracy instruction,

providing for liability if “at least one defendant acting

voluntarily and in concert with at least one other person”

violated Evans’ rights.

No. 06-3401 9

Evans argues that the omission of his proposed lang-

uage created a “gap” in liability such that he was not

allowed to prove his Monell claims. We disagree. Judge

Coar rejected Evans’ proposed language because he

thought it would confuse the jury and went beyond its

responsibility: “[T]his jury is only concerned about what

the named defendants did. As to unknown other city

employees, this jury will not be asked to cast a verdict

with respect to them, and they could not cast a verdict

with respect to them.” Indeed, because Evans’ first

amended complaint did not name unknown officers5 or

the estates of deceased officers as defendants, asking the

jury to pass judgment solely on “other” City employees

was not appropriate. Any act committed by both named

defendants and “others” was covered by the conspiracy

instruction. The jury’s verdict meant that no person—

known, unknown, living, or deceased—conspired with any

named defendant to violate Evans’ rights. There was no

“gap” in liability.

Evans also maintains that he was entitled to his pro-

posed instruction under the agreed-upon stipulation.

This argument fails as well. The stipulation’s plain

language does not permit recovery upon a showing that

“any” City employee violated Evans’ rights, just those

employees “as alleged in the first amended complaint.” As

noted, Evans’ first amended complaint did not name

unknown officers or the estates of deceased officers as

defendants. He therefore was not entitled to his pro-

posed instruction under the stipulation.

Evans lastly cites Kunz v. City of Chicago, No. 01 C 1753

(N.D. Ill. filed Mar. 12, 2001), and Bond v. Utreras, No. 04

C 2617 (N.D. Ill. filed Apr. 2, 2004) in support of his

5

Evans’ initial complaint included “unknowns,” but his first

amended complaint substituted Officers Ryan and Swick.

10 No. 06-3401

position. These cases are distinguishable. In Kunz,6 Kunz

filed an amended complaint naming “other unknown

Chicago police officers” as defendants after discovering

that the proposed stipulation did not include them, and

the City amended its stipulation accordingly. By con-

trast, Evans’ amended complaint did not name unknown

officers as defendants. In Bond, Bond objected to the

City’s proposed stipulation, and the City agreed to

broaden it. Here, although Evans initially objected to the

stipulation, he never asked the City to amend it and

eventually accepted it as proposed. Judge Coar therefore

did not abuse his discretion in rejecting Evans’ instruction.

We finally approach the main event: whether Judge

Coar erred in allowing the 5A officers to withdraw their

privilege and testify—while simultaneously excluding

evidence of their prior silence if they were deposed prior

to trial. We review a district court’s decision to allow

withdrawal of a privilege for an abuse of discretion. See

United States v. 4003-4005 5th Ave., Brooklyn, NY, 55

F.3d 78, 85 (2d Cir. 1995) (“[A]s long as a trial court

considers the relevant factors and acts with moderation

to accommodate both a litigant’s valid Fifth Amendment

interests and the opposing parties’ needs . . . we will

not disturb the measures used by that court in the exer-

cise of its discretion.”). The same standard applies to a

court’s exclusion of evidence, including evidence of privi-

lege, see Harris v. City of Chicago, 266 F.3d 750, 755 (7th

Cir. 2001) (finding an abuse of discretion where the dis-

trict court precluded evidence of prior silence after defen-

dants evaded all discovery), and its treatment of alleged

discovery abuses. Johnson v. J.B. Hunt Transp., Inc., 280

F.3d 1125, 1130-31 (7th Cir. 2002).

6

One of Evans’ counsel in this case was also Kunz’s counsel in

that case.

No. 06-3401 11

We now recall, in some detail, the events that brought

this issue to the fore. Five weeks before trial, Judge Coar

ruled that, despite having sat out discovery on Fifth

Amendment grounds, the 5A officers could testify, if they

met certain conditions. He explained his decision as

follows:

I don’t think that the [5A officers] have acted timely,

and there is prejudice. Despite what the police officer

defendants say, I think there is prejudice. However,

I’m going to give them the same opportunity [as

Katalinic]. If they wish to testify, they have to declare

that by Wednesday, provide answers to all outstanding

discovery, and appear for a deposition within 10 days.

The 5A officers met the three conditions laid down by the

judge.7

Just before the start of the trial, Judge Coar granted the

5A officers’ request to exclude evidence of their prior

silence. He also rejected Evans’ request to impose dis-

covery sanctions for bad faith. His ruling was brief:

Police officers’ motion in limine to bar adverse infer-

ence and reference to defendants taking the 5th

Amendment. It’s denied—I mean, I’m sorry. The

motion in limine is granted.

Now, we can also address this motion, the plaintiff ’s

motion with respect to bad faith. That motion is

denied. There may be a way to deal with that. This is

not the way to deal with it.

7

We refer the reader to footnote 3 where we noted the “heated”

nature of the redepositions. While we agree with the dissent

that the redepositions did not go smoothly, we believe that

Judge Coar was in a far better position than we are to evaluate

the parties’ motives, and so we defer to his conclusion that

the officers eventually satisfied the conditions.

12 No. 06-3401

We first address Judge Coar’s decision not to impose

discovery sanctions for what Evans says was a bad-

faith invocation of the Fifth Amendment. “To be privileged

by the Fifth Amendment to refuse to answer a question,

the answer one would give if one did answer it (and

answer it truthfully) must have some tendency to sub-

ject the person being asked the question to criminal

liability.” In re High Fructose Corn Syrup Antitrust Litig.,

295 F.3d 651, 663-64 (7th Cir. 2002). A district court has

the ability to dismiss a case or to enter default judgments

against parties who refuse to comply with discovery

orders. See Fed. R. Civ. P. 37(b)(2)(C). However, “[t]his

drastic sanction requires a showing of ‘willfulness, bad

faith, or fault’ on the part of the disobedient party, but . . .

is otherwise within the discretion of the court.” Poulos

v. Naas Foods, Inc., 959 F.2d 69, 75 (7th Cir. 1992)

(internal citation omitted).

The record supports Judge Coar’s decision to deny

sanctions. Specifically, Judge Coar reasonably could

have concluded that the officers were not “gaming” the

system but rather were concerned about the special

prosecutor’s investigation, which was only recently com-

pleted when they decided to testify. When asked to

explain why they invoked the Fifth Amendment in this

case, three of the officers (Hill, Katalinic, and McKenna)

indicated that they made the decision upon the advice of

their attorneys after the special prosecutor contacted

them. Ryan, who did not consult with counsel, said that he

thought that the special prosecutor’s case was “broad” and

did not know if he was a target. McKenna also stated

that he had been told by one of Evans’ trial counsel (or, at

least, in that counsel’s presence) that if he answered

questions about the Cabassa investigation, he would

waive his right to assert the privilege in response to

No. 06-3401 13

questions about other investigations.8 These reasons

indicate a good-faith invocation of the Fifth Amendment.

Nevertheless, Evans maintains that the 5A officers

explicitly admitted in their redepositions that no good-faith

basis ever existed to invoke their Fifth Amendment

privilege. Read literally and without context, some testi-

mony may indicate as much. However, it is clear that

several of the officers were confused by Evans’ counsel’s

questions on this issue. Katalinic’s redeposition provides

a good example:

Q: All right. What was the factual basis for a good

faith basis to believe that truthful answers about the

Cabassa investigation could incriminate you, sir?

[Objections to form raised.]

The Witness: I don’t understand the question. I’m

sorry.

Q: Was there any good faith basis for you to believe

that if you gave truthful answers about what you did

in the Cabassa investigation, you could incriminate

yourself?

[Same objection and objection that question may call

for a legal conclusion raised.]

The Witness: I did nothing wrong in this case.

Q: Are you aware of any facts that would suggest

that you could incriminate yourself if you testified

truthfully about them?

The Witness: I didn’t do anything wrong in this

case. I don’t—

8

Evans eventually dismissed DiGiacomo and Swick, so we

will not consider their testimony.

14 No. 06-3401

As this segment illustrates, the officers seemed to think

that they were being asked if they did anything

wrong during the Cabassa investigation and, not sur-

prisingly, answered “no.” However, denying wrongdoing

is different than admitting that there was no basis for

invoking the Fifth Amendment. Because there was evi-

dence that the officers held a reasonable belief that

they could be targets of the special prosecutor’s investi-

gation, we cannot say that Judge Coar abused his dis-

cretion in declining to impose discovery sanctions.

The more difficult question is whether Judge Coar’s

decision both to allow the 5A officers to testify and to

exclude evidence of their prior silence is consistent

with our decision in Harris v. City of Chicago.

In Harris, the plaintiff brought a § 1983 claim against

an arresting officer, Alex Ramos, and the City of Chicago,

alleging federal and state law malicious prosecution.

During discovery, Ramos refused to respond to any

discovery requests, instead invoking his Fifth Amend-

ment privilege. At trial, however, Ramos answered all

questions posed to him, and all evidence of his prior

silence was excluded. After a jury verdict for the defen-

dants and a denied motion for a new trial, Harris ap-

pealed, arguing that Ramos was allowed to avoid the

discovery process altogether. We reversed and remanded

for a new trial. Because Ramos did not abandon his

Fifth Amendment privilege until “just prior to trial,” the

probative value of his prior silence was high and out-

weighed its prejudicial effect. Harris, 266 F.3d at 755.

Therefore, “it was error for the district court to exclude

Ramos’s prior silence because the effect of such a ruling

would be tantamount to allowing Ramos to avoid dis-

covery altogether.” Id. at 754. We concluded that the

district court should have either bound Ramos to his

prior privilege assertions or allowed Harris to impeach

him with his prior silence. Id.

No. 06-3401 15

When he permitted the 5A officers to waive their privi-

lege and testify, Judge Coar made specific Harris findings.

First, he found that, with the exception of Katalinic, the

5A officers had not “acted timely.” He also twice stated

that there was prejudice from the officers’ late request.9

Thus, Judge Coar explicitly determined that Harris

applied to the 5A officers’ situation and decided to let

them testify. However, instead of allowing Evans to

impeach the 5A officers with their prior silence, he ordered

the officers to answer all discovery requests and submit

to redepositions before trial.

There are two ways to view Judge Coar’s decision: (1)

a misapplication of law, directly contradicting Harris by

refusing to admit evidence of prior silence after a finding

of untimeliness, or (2) a discretionary ruling, attempt-

ing to cure the inadequate-discovery prejudice by provid-

ing a remedy that was not available in Harris. This is a

close call because Judge Coar did not explicitly state that

he was attempting to cure the prejudice when he allowed

the 5A officers to testify. However, the fact that Judge

Coar allowed the parties to brief the issue and then made

specific Harris findings shows that he was exercising

his discretion. Cf. Carr v. O’Leary, 167 F.3d 1124, 1127

(7th Cir. 1999) (“[A] discretionary ruling . . . cannot be

upheld when there is no indication that the judge exer-

cised discretion.”). Because Judge Coar was exercising

his discretion, we view his ruling as an attempt to cure

the prejudice. And we “will not reverse if we merely

conclude that we would have reached a different decision

9

In their brief, the defendants waste a lot of time arguing

that the 5A officers acted timely and that there was no prej-

udice. These are baffling claims. Not only had Evans been

deprived of all discovery from the 5A officers until Judge Coar’s

ruling, but the court made specific findings of untimeliness

and prejudice.

16 No. 06-3401

if asked to consider the issue in the first instance[.]” Hall

v. Norfolk S. Ry. Co., 469 F.3d 590, 594 (7th Cir. 2006).

Judge Coar reasonably could have determined that

ordering additional discovery cured any prejudice. The

trial had not yet begun when the officers waived the

privilege, which gave them time to provide amended

answers to all discovery and appear for redepositions. This

fact distinguishes Harris because, there, the defendant

made no attempt to amend or supplement his interroga-

tory responses, produce any documents, or waive his

Fifth Amendment privilege prior to trial. 266 F.3d at 753-

54. Thus, the plaintiff in Harris was forced to question the

officer at trial “without the benefit of any discovery,” which

severely hindered his ability to formulate a trial strategy.

Id. at 755 (emphasis added). Because there was no op-

portunity to order additional discovery after the privilege

was waived, the adequacy of such a remedy was never

discussed. Nevertheless, we interpret Harris to imply that,

if additional discovery alleviates the prejudice from an

untimely request to testify, the district court may exclude

evidence of prior silence because “the effect of such a

ruling would [no longer] be tantamount to allowing

[a party] to avoid discovery altogether.” Id. at 754.10

We have some concerns that ordering redepositions

5 weeks before the scheduled start of the trial was not

10

This does not mean, as the dissent suggests, that “[the fact

situation in Harris] is the only situation where sanctions are

appropriate.” On the contrary, had the district judge awarded

sanctions here, we also may have found that decision appropri-

ate under the rule announced in Harris. But because that

question is not before us today, we disagree with the dissent

that our decision is “too narrow” and “inconsistent” with

Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553 (1st Cir. 1989)

(affirming the district court’s decision to bar an officer from

testifying where he invoked his Fifth Amendment privilege

during discovery but changed his mind one month before trial).

No. 06-3401 17

enough to cure the prejudice in this case. Indeed, the

primary remedy that Evans now seeks is a new trial to

provide him with more time for fact and expert discovery.

Notably, however, when Judge Coar ruled that the offi-

cers would be allowed to testify, Evans did not seek a

continuance. He only asked for an explanation from the

officers about their change of heart and for the oppor-

tunity to object based on that explanation. Evans did file

several motions on the privilege issue after Judge Coar’s

ruling, but these motions sought to bind, bar, and de-

fault the officers—relief that Judge Coar already had

partially denied—not to obtain additional time for dis-

covery.

Evans offers two explanations for his decision not to

ask for more time. First, he maintains that he did not

seek more time because he was expecting to impeach the

officers with their prior silence under Harris. But, be-

cause Judge Coar had not yet ruled on that issue, Evans

should not have assumed that the court would see the

issue his way. In addition, Magistrate Judge Schenkier

indicated that the admissibility of the prior silence was

an open question, giving Evans further notice that Judge

Coar might not allow questions to be asked of the officers

regarding their prior silence.

Second, Evans argues that asking for more time would

have been futile. However, the record indicates otherwise.

Earlier in the proceedings, Judge Coar stated that he

would grant what he believed to be an agreed-upon

motion for postponement. He later denied the motion only

because Evans did not agree to it. Closer to trial, Judge

Coar did deny requests for continuances for scheduling

conflicts and expressed a strong desire to stick with the

scheduled start date, but he never rejected postponing

18 No. 06-3401

the trial for Evans’ additional discovery.11 Indeed, Judge

Coar never had the opportunity to rule on such a motion

because Evans never filed one.

In sum, we reject Evans’ claim that three of Judge Coar’s

rulings entitle him to a new trial. We specifically find

that, by ordering additional discovery, Judge Coar sought

to alleviate the prejudice from the officers’ untimely

request to testify—a remedy that was not available to

the district court in Harris. The decision to grant such a

remedy while excluding evidence of prior silence is dis-

cretionary, and we cannot say that Judge Coar abused

his discretion in this case. We might well have reached

a different decision if asked to consider the matter in

the first instance, but that—substituting our judgment

for that of the trial judge on the firing line—is something

we are not permitted to do.

Before leaving, we wish to comment on the dissent’s

claim that our opinion, which we think is consistent with

Harris, “ratifies” a “neat maneuver” by the police officer

defendants. We disagree. It does not appear to us that

the defendants were gaming the system. Katalinic

moved to be permitted to withdraw his refusal to testify

in November of 2005. The other officers followed suit in

January of 2006, around the time the special prosecutor

was wrapping up his probe. In June, 5 weeks before

the scheduled start of the trial, Evans offered to waive

claims for punitive damages against any officer who

11

The dissent misconstrues this sentence as stating that “the

district judge merely denied motions to continue based on

‘scheduling conflicts.’ ” (Emphasis added.) On the contrary, we

agree that the district court seemed disinclined to move the

trial date. But, we do not agree that his comments, taken as a

whole, clearly show that filing a continuance motion for addi-

tional discovery would have been futile.

No. 06-3401 19

would stick to his guns and continue to decline to testify

at the trial (this, as we discussed, was the offer that

Officer Dignan accepted and was not allowed to repudiate).

We fail to see how these events, unfolding as they did, can

accurately be described as a “neat maneuver” by the

officers. If there was a “neat maneuver” here (and we have

nothing against “neat maneuvers” as many good law-

yers—like Evans’ savvy counsel in this case—try to use

them), it was more likely the offer to waive punitive

damages.

Finally, in the last paragraph of her dissent, our col-

league notes that Evans “presented substantial evidence

of disturbing police malfeasance” in this case. We cer-

tainly agree that had the jury gone the other way, it

would be difficult to imagine a scenario where its ver-

dict could be set aside. But a jury verdict for the plain-

tiff, if the defendants were not permitted to testify after

saying they wanted to do so before the trial was sched-

uled to start, might well have presented significant

problems on appeal. The closer question was whether

the jury should have heard that the defendants invoked

their rights under the Fifth Amendment. Sure, that

might have helped Evans’ case, but to what extent is

questionable. The jury knew that Office Dignan invoked

the Fifth Amendment, but he was exonerated. Had the

other officers’ prior invocation of rights been laid before

the jury, the officers would have certainly explained that

they wanted to speak but, in light of the special prosecu-

tor’s inquiry, they were advised by their lawyers to take

the Fifth. Their lawyers would have most certainly been

called to the stand to say they gave that advice to their

clients. How much, if any, significance a jury might

assign to a situation like this is unclear, but our guess,

under the circumstances of this case, is that it would not

have been substantial.

In closing, we note that what happened to Mr. Ev-

ans—his wrongful conviction and imprisonment for a

20 No. 06-3401

substantial portion of his life—was a tragedy of epic

proportions. We know all too well that separating the

guilty from the innocent in our system of justice does

not, despite requirements of proof beyond a reasonable

doubt, always work to perfection. Sometimes innocent

people get convicted.12 The jury here rejected the view

that police misconduct, as opposed to something more

benign, was the reason why Evans was wrongfully con-

victed. Yet, even without deliberate police misconduct,

we think Illinois should take a close look at its statutory

scheme (705 Ill. Comp. Stat. 505/8) for compensating

people who have been wrongfully imprisoned. The sum

Evans received, apparently $161,000, is, it seems to us,

woefully inadequate.

For these reasons, particularly because the deferential

(abuse of discretion) standard of review we must apply

prohibits us from substituting our judgment for the

judgment exercised by Judge Coar in this very difficult

case, we AFFIRM the judgment of the district court.

WILLIAMS, Circuit Judge, dissenting. What to do

when civil litigants invoke the Fifth Amendment’s privi-

lege against self-incrimination during discovery but

12

On November 25, 2007, the New York Times reported, after an

extensive nationwide study, that 206 convicted defendants (205

of them men) have been exonerated, through DNA evidence,

since 1989. Fifty-three of the 206 were, like Mr. Evans here,

convicted of murder.

No. 06-3401 21

waive the privilege on the eve of trial? This is an impor-

tant question, for when used tactically a late waiver of

the privilege can wreak havoc on an opposing party and

create a fundamentally unfair trial. As the Third Circuit

put it in SEC v. Graystone Nash, Inc., 25 F.3d 187, 191 (3d

Cir. 1994):

[T]he adverse party—having conducted discovery and

prepared the case without the benefit of knowing the

content of the privileged matter—would be placed at

a disadvantage. The opportunity to combat the newly

available testimony might no longer exist, a new

investigation could be required, and orderly trial

preparation could be disrupted. In such circumstances,

the belated waiver of the privilege could be unfair.

When a court is faced with a party who waives the

Fifth Amendment privilege close to trial, it must manage

the situation through “means which strike[ ] a fair bal-

ance and accommodate[ ] both parties”—that is, “both a

litigant’s valid Fifth Amendment interests and the op-

posing parties’ needs in having the litigation conducted

fairly.” United States v. 4003-4005 5th Ave., 55 F.3d 78, 84-

85 (2d Cir. 1995). If it finds that the system has been

gamed for unfair advantage, the court should either pre-

vent the party from waiving the privilege and testifying

at trial, or, as a lesser sanction, allow the opposing party

to impeach the formerly silent party with its prior silence.

Harris v. City of Chicago, 266 F.3d 750, 754 (7th Cir.

2001). None of the decisions that I have cited places the

burden on the opposing party to move for a continuance

in order to mitigate the prejudice it suffers because of

the waiving party’s late decision.

This case presents a straightforward legal question:

should a district court bar the testimony or allow the

impeachment of a party who waives the Fifth Amendment

privilege at the last minute, even if the party has left

22 No. 06-3401

enough time for some discovery in the final, hectic mo-

ments before trial? Or should these sanctions be re-

served for the situation in which a formerly silent party

waits until trial has actually begun before waiving the

privilege, thereby precluding any discovery at all? The

majority takes the latter position, implicitly if not ex-

plicitly; I take the former.

In reaching its conclusion, the majority relies on Harris,

in which the defendant refused to participate in discovery

entirely, and yet was allowed to testify at trial. We re-

versed the district court’s decision to allow the testimony

and its refusal to let the plaintiff impeach the defendant

with his prior silence, holding that this was “tantamount

to allowing [the defendant] to avoid discovery altogether.”

266 F.3d at 754. The majority leaves the impression that

Harris is not simply one situation where sanctions are

appropriate—it is the only situation where sanctions

are appropriate. Some discovery, any discovery—no

matter how crammed or last-minute; no matter what

tactical advantage it affords the formerly silent party; no

matter that it devastates the opposing party’s trial

preparation—remedies the prejudice caused by a late

waiver. This reading of Harris is too narrow, and is

inconsistent with the decision of our sister circuit in

Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 576-77

(1st Cir. 1989) (affirming decision barring party from

testifying where party invoked Fifth Amendment for six

months during discovery, sought to reverse course one

month before trial, and offered to submit to discovery

in the days just before trial).

Eight of the defendant police officers invoked their

Fifth Amendment rights and refused to participate in

discovery for a year and a half. Five weeks before trial

and well after the period for fact discovery had closed,

seven of them asked to be allowed to waive the privilege

and testify at trial. The district court specifically found

No. 06-3401 23

that the waiver was untimely and caused prejudiced to

Evans. However, as the majority notes, the district court

appears to have given the defendants an opportunity to

attempt to cure this prejudice by submitting to deposi-

tions within ten days. The seven depositions did not

occur within ten days of the district court’s order; in-

stead, they were completed weeks later, in the nine

business days immediately prior to trial. On the first

day of trial, after a jury had already been empaneled

and just before Evans’s opening statement, the district

court ruled that not only could the officers testify, but

Evans could not even impeach them with their prior

silence.

The district court did not provide any explanation for

this ruling—which was a bonanza for the defendants—yet

the majority would defer to it as a reasonable exercise

of discretion. Although we do not know why the district

court barred impeachment, the majority assumes that

it must have been because the court believed that the

frantic depositions had cured all prejudice to Evans. But

the majority does not discuss at any length how the

district court could have reasonably reached this conclu-

sion, because it does not weigh the prejudice to Evans

against the potential curative power of the late discovery.

I do so below, and I believe that the facts show that the

district court’s decision was unreasonable. I wish to

emphasize that while I disagree with this particular

ruling, I certainly understand the position of a very busy

trial judge who finally brings to trial a contentious, hard-

fought case and is faced with multiple motions in limine

and discovery disputes—matters that are not always

presented to a district court with time to spare. Never-

theless, I would announce a rule that a late-waiving

party should be penalized not just when its waiver pre-

cludes any discovery at all, but also in a case like this,

when its waiver prevents its opponent from a meaningful

opportunity to conduct discovery.

24 No. 06-3401

Before weighing the prejudice to Evans against the

impact of the late discovery, I wish to explain, for context,

why the circumstances surrounding the defendants’ waiver

suggest that they were milking their Fifth Amendment

privilege for as long as possible with the intention of

waiving it just before trial. In this regard, the majority

is incorrect when it asserts at page 18 that after

Katalinic moved to waive his privilege in November 2005,

the other “officers followed suit in January of 2006, around

the time the special prosecutor was wrapping up his

probe.” The other defendants did not move to withdraw

their assertion of the privilege in January 2006. Their

exact words at that time were: “when and if the Special

Prosecutor concludes its investigation, the defendants who

have elected to take the Fifth may decide to waive their

privilege and testify” (emphasis added). This assertion

could hardly have been more equivocal. The defendants did

not actually seek to testify until mid-May 2006, approxi-

mately five weeks prior to trial. Moreover, it is open to

question whether the special prosecutor was “wrapping up

his probe” in January 2006, as the majority states. (His

investigation did not end until April, see Op. at 2, n.1—and

he did not issue his report until July.) The point is, when

the officers finally sought to waive the privilege in May,

nothing had changed in terms of their potential exposure

to criminal liability. The special prosecutor’s report was

not yet released, and they are not arguing that they knew

the special prosecutor’s findings before he announced

them. What apparently had changed was that they began

to consider just how bad it would look for the seven officers

most intimately involved with the Cabassa investigation to

refuse to testify at trial for fear of incriminating them-

selves.

Now to the prejudice to Evans from the defendants’ late

waiver, beginning with tactical disadvantage he suffered.

See Harris, 266 F.3d at 755. The defendants sat out

No. 06-3401 25

discovery for months and months, and then, after seeing

Evans’s entire case unfold, they elected to testify. They

knew the strengths and weaknesses of his case; they knew

where his emphasis lay; they knew what he would ask

them about; they had heard testimony from not just all of

his fact witnesses, but also all of his expert witnesses.

Another aspect of the tactical advantage was the effect of

the late depositions on Evans’s trial preparation. This was

a massive case, lasting over two years from complaint to

jury verdict, with over 150 deposition witnesses and a

month-long trial. While the defendants’ lead counsel was

busy preparing for that trial in the week before it began,

Evans’s lead counsel was personally conducting all seven

depositions, which were too critical to Evans’s case to be

left to a second-chair lawyer. By allowing the defendants

to tie up Evans’s lawyer’s final days before trial in this

way, the district court created a serious imbalance be-

tween the parties.

Two of the most significant aspects of prejudice Evans

suffered involved a semen test in the 1970s and Evans’s

star witness, Frank Laverty, who died in late 2006. As to

the former matter, one of the defendant officers revealed

for the first time in a deposition five days before trial

began that a semen test had been conducted in the 1970s

and had ruled out Evans. Evans contends that he was

unable to conduct any follow-up discovery on this matter

by seeking verification from other witnesses or demand-

ing the production of test results. The defendants’

efforts to get around this revelation are wholly unconvinc-

ing, especially given that Evans was ultimately exonerated

in 2002 based on semen testing. The officer “was most

likely mistaken that a test was run,” they contend (without

citation); they also claim that while semen testing did

exist at that time, it was “not reliable.” These self-inter-

ested and wishy-washy assurances are no substitute

for adversarial probing.

26 No. 06-3401

Even more importantly, Evans’s star witness, Frank

Laverty, was terminally ill with cancer in 2006. Laverty

was a former Area 2 police officer, and he gave a video-

taped deposition that formed one of the centerpieces of

the trial with its insider account of the police abuse

committed in Area 2. But because of Laverty’s health, that

deposition was taped before the defendant officers were

deposed. Evans’s counsel stated at oral argument that

Laverty’s health in the summer of 2006—when the defen-

dants waived their privilege and were deposed—was too

poor for another video deposition. That means that in

the testimony that the jury heard, Laverty had nothing

to say about the defendants’ assertions during their

depositions, leaving the impression that there was noth-

ing in those depositions to rebut. The Laverty situation

is critical because Evans could not have mitigated this

prejudice by seeking a continuance. His star witness

was too sick to participate in the trial as scheduled, let

alone one at an even later date.

The last-minute depositions did not cure this prejudice.

In this regard, I must disagree with the majority that the

officers “met the three conditions laid down by the judge”

to be allowed to testify. See Op. at 11. The district court

stated in June 2006, about five weeks before trial, “If

they wish to testify, they have to declare that by Wed-

nesday, provide answers to all outstanding discovery, and

appear for a deposition within 10 days.” If by “appear

for a deposition within 10 days,” the judge meant that

the officers could show up for the depositions and then

leave without being deposed, then the officers did indeed

meet the condition. But as I read the record, the defen-

dants pushed the depositions to the final days before trial.

Shortly after the district court ordered the redepositions,

Evans moved to appoint an additional lawyer, Flint Taylor,

for help completing this monumental task in such a

short amount of time. The defendants objected to Taylor’s

No. 06-3401 27

participation, saying that he would “harass and intimi-

date” the officers, and they walked out of their redeposi-

tions. Significantly, the magistrate judge rejected the

defendants’ contention about Taylor and added him as

counsel several days later. It’s hard to rule out gamesman-

ship on either side here, but recall that the defendants

created this last-minute situation by deciding to testify

so late in the process. If the burden was on any party

to complete the depositions quickly, it was on them.

The broader lesson of this discovery dispute is that in

a massive, acrimonious lawsuit, deposing seven critical

witnesses in the nine days before trial simply cannot go

off without a hitch. The district court should have recog-

nized that the defendants had created an impossible

situation and sanctioned them by allowing Evans to

impeach them with their prior silence.

This leads to the question the majority asks: why didn’t

Evans request a continuance? Again, and critically, a

continuance would not have alleviated the prejudice

inherent in the Frank Laverty situation—more time

would not have allowed Laverty, who was dying, to

respond to the defendants’ last-minute depositions. But

assuming that a continuance should still matter, the

majority suggests that the time to request one was June

2006, when the district court ruled that the defendants

could testify at trial. That misses the point, for at that

time Evans thought the depositions would be completed

within ten days, as ordered, rather than in the final

moments before trial began. In other words, Evans didn’t

know just how prejudicial the situation would become. The

right question is therefore, why didn’t Evans move for a

continuance on the first day of trial, when he learned

that he could not even impeach the defendants with

their prior silence? For even if it was until then an open

question whether Evans could impeach, the case law

gave him every indication that he would be allowed to

28 No. 06-3401

by setting out impeachment as the lesser sanction to

barring testimony outright. Indeed, in the weeks before

trial he was still fighting the preliminary question of

whether the defendants should even be allowed to

testify, and Harris suggests that barring their testimony

outright was a real option. I’m sure Evans was shocked

on the first day of trial when he learned that on top of

the earlier ruling allowing the defendants to testify,

evidence of their prior silence would be inadmissible too.

As to why Evans did not request a continuance on the

first day of trial, the majority states that the district

court would have been receptive to such a request. Again

I must disagree. The trial had already begun; the jury

was empaneled and opening statements were about to

get underway. Moreover, the district judge made it quite

clear, especially after the original trial date of January

2006 was disrupted, that he would not push back the

trial.1 I can understand why: this was a very busy trial

judge balancing a full criminal docket who understand-

ably (and fairly) wanted to move on with a month-long

case. By my count, the district judge rejected no fewer than

four motions to continue the trial, including one a month

before trial and one the day before trial. On more than one

occasion, the judge told counsel in rejecting a motion for

continuance things like, “Now gentlemen, don’t waste the

paper to file a motion for another extension. It’s not going

to happen.” While discussing trial scheduling matters with

1

The majority states at page 17 that the district judge merely

denied motions to continue based on “scheduling conflicts.” That

is incorrect. To take just two examples, the defendants’ emer-

gency motion to continue the day before trial argued that

publicity over the case and the expected release of the special

prosecutor’s report would prevent the selection of a fair jury.

And the defendants’ motion to continue filed in November 2005

asked for more time to conduct discovery.

No. 06-3401 29

Evans’s counsel a month before trial, the district judge

said, “You can make whatever objections you want, but

that’s going to be the schedule.” The judge also said in the

final pretrial conference in May 2006, “I won’t have time to

try this case for almost a year, so—because of other

matters pending—so I’m not going to move this trial.”

Evans certainly would have made a better record by

requesting a continuance, even if only to have it emphati-

cally denied, but the law does not require a futile act. If

it is clear that a motion for continuance would be denied,

the failure to file one does not constitute waiver. See

United States v. Dellinger, 472 F.2d 340, 371-72 (7th Cir.

1972); cf. United States v. Fish, 34 F.3d 488, 495 (7th Cir.

1994) (failure to seek continuance is not ineffective

assistance of counsel where district court’s statements

show that any motion would have been futile); Moody v.

Polk, 408 F.3d 141, 151 (4th Cir. 2005) (same).

But as I’ve noted, because of the prejudice in terms of

Laverty’s video deposition, the question of a continuance is

a red herring. It was also, for Evans, a Catch-22. When he

found out, just before his opening statement, that the

defendants would not only be allowed to testify after

sitting out discovery, but also avoid impeachment with

their silence, Evans was put in an unenviable position.

Either he proceeded with the scheduled trial at a signifi-

cant disadvantage, or he moved to postpone for another

year a day in court that was 27 years in the making—one

that the defendants had already delayed once with a

frivolous interlocutory appeal. See Evans v. City of Chi-

cago, 445 F.3d 953, 955-56 (7th Cir. 2006) (describing

defendants’ two arguments as, respectively, “absurd,” and

“too ridiculous to merit comment”). Since the defendants

created this mess with their late waiver, the defen-

dants—not Evans—should have been the ones to face

consequences for it. But the defendants suffered no con-

sequences at all: they effectively dodged discovery, got

30 No. 06-3401

to testify at trial, and kept the whole thing from the jury.

Today’s opinion ratifies that neat maneuver, teaching

that when a party waives the privilege so late that its

opponent suffers prejudice, it is the opponent, rather

than the waiving party, that has to fix the situation. That

is inconsistent with Harris, and it is a bad rule—it en-

courages gamesmanship, puts the district court in a

difficult situation, and undercuts the goal of timely

and fair discovery.

As the majority notes, “The jury here rejected the view

that police misconduct, as opposed to something more

benign, was the reason why Evans was wrongfully con-

victed.” See Op. at 20. That is true, but it begs the ques-

tion, would the jury still have reached that decision if

it had all the pertinent information? After all, Evans

presented substantial evidence of disturbing police mal-

feasance, including that the defendants repeatedly

coerced and threatened their only witness to identify

him; that they locked the witness’s husband in a room to

prevent him from telling prosecutors about the wit-

ness’s eyesight and credibility problems; that they lied

in saying that the witness reported threats from Michael

Evans in the weeks after the murder; and that they

performed genital inspections on neighborhood boys as a

way to pressure them to implicate Evans (which at least

one of the boys did).

The main evidence for the other side was the officers’

denials. Knowing that the officers were so worried about

criminal liability that they refused to speak in their own

defense for a full year and a half might have made all the

difference to the jury in choosing whom to believe. The

majority thinks otherwise, implying that since one officer

invoked the Fifth at trial and was nevertheless exoner-

ated, the result would be the same if everyone’s silence

came out. This argument is best rejected by analogy. If

there was a single moment that irrevocably changed the

No. 06-3401 31

fortunes of the tobacco industry, it was in April 1994

when the American public saw seven—not one—tobacco

company executives raise their right hands and tell

Congress that nicotine isn’t addictive and that smoking

doesn’t cause cancer. See Allan M. Brandt, The Cigarette

Century: The Rise, Fall, and Deadly Persistence of the

Product that Defined America 366-69 (2007). Similarly

here, the power of seven silent Chicago Police officers

is not, as the majority suggests, a matter of one plus six.

Seven is exponentially greater than one. Regardless,

the point is not what I think about the impact of the

officers’ prior silence, or what my colleagues in the major-

ity think. What matters is what the jury would have

thought, had it been given the opportunity to consider

this critical evidence.

I agree with the majority that what happened to

Michael Evans was a tragedy: he spent 27 years in prison

for a crime for which he has been exonerated and par-

doned. He deserved justice in his civil trial, but he did not

receive it because the trial was fundamentally unfair.

Accordingly, I respectfully dissent.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-23-08