Nathson Fields v. Lawrence Wharrie

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2035

N ATHSON F IELDS,

Plaintiff-Appellee,

v.

L ARRY W HARRIE AND D AVID K ELLEY,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 10 C 1168—Matthew F. Kennelly, Judge.

A RGUED D ECEMBER 6, 2011—D ECIDED F EBRUARY 28, 2012

Before P OSNER, F LAUM, and SYKES, Circuit Judges.

F LAUM, Circuit Judge. Nathson Fields was wrongly

convicted of two murders. Twenty-five years after his

ordeal began, he was exonerated, and he presently

seeks money damages from those state officials he holds

responsible for his conviction. Among others, he names

Cook County, Illinois Assistant States Attorneys (“ASA”)

Larry Wharrie and David Kelley, alleging that they in-

duced false testimony during his trial and subsequent

retrial, suppressed the compromised nature of this testi-

2 No. 11-2035

mony and its acquisition from him, and denied him due

process.

Wharrie and Kelley raise an interlocutory appeal,

challenging that the district court improperly refused

them absolute immunity from Nathson Fields’ claims

against them under 42 U.S.C. § 1983. They also appeal

the district court’s determination that it enjoyed sup-

plemental jurisdiction over Fields’ state-law claims pur-

suant to 28 U.S.C. § 1367. They contend that Illinois

sovereign immunity law precludes federal jurisdiction,

and only the Illinois Court of Claims may hear Fields’

state-law claims.

We reverse the district court in part and find (1) that

Wharrie is entitled to absolute immunity for his alleged

solicitation of false testimony from Earl Hawkins after

Fields’ original trial, as well as for his alleged suppres-

sion of its falsity; and (2) that Fields failed to state a

claim against Kelley with respect to his alleged coercing

Randy Langston’s testimony. We affirm the district

court’s holding that it has jurisdiction over Fields’ state-

law claims, but suggest that it consider relinquishing

jurisdiction to the state court.

I. Background

A. Factual Background

In 1986, Fields, a member of the El Rukn street gang,

was convicted of murdering Talman Hickman and

Jerome Smith. He and his co-defendant, Earl Hawkins,

were sentenced to death.

No. 11-2035 3

Fields alleged that, in preparation for and during his

trial, Chicago police officers and ASA Wharrie solicited

false testimony against him from a fellow El Rukn gang

member, Anthony Sumner, whom they had arrested in

connection with separate murders. He maintains that

the police coerced Sumner to falsely implicate him

in Hickman and Smith’s murders, as well as those for

which Sumner was arrested. Sumner received a non-

prosecution agreement in exchange for his testimony,

which, in 1991, he confessed was false.

Fields’ appeal was ultimately denied. He then peti-

tioned for post-conviction relief. In 1996, a state-court

judge granted him a new trial, but did so on grounds

other than Sumner’s testimony. The judge ordered the

new trial in light of evidence that Fields’ co-defendant,

Earl Hawkins, bribed the initial trial judge, Thomas

Maloney, to assure his own acquittal. Hawkins was

convicted and Maloney returned the money when he

realized that federal authorities were investigating him;

however, the post-conviction state-court judge con-

cluded that Maloney’s pervasive corruption denied

Fields due process.

In 2009, following his second trial, the jury acquitted

Fields. He received a certificate of innocence.

Fields then sued the County of Cook; the City of

Chicago and its current and former officials; several

Chicago police officers; and ASAs Wharrie and Kelley

under Section 1983 and Illinois law. Pursuant to Sec-

tion 1983, he claimed that the defendants deprived him

of due process by engaging in suggestive identification

4 No. 11-2035

procedures, deliberately suppressing exculpatory evi-

dence, coercing witnesses to provide false evidence,

and suborning perjury. He claimed that individual de-

fendants failed to intervene to prevent the violation of

his constitutional rights, as well as that individual de-

fendants conspired to frame him for murder. Under

Illinois law, he claimed malicious prosecution, inten-

tional infliction of emotional distress, civil conspiracy,

respondeat superior, and indemnification.

According to Fields, Wharrie feared that a retrial

would reveal that he coerced Sumner’s testimony. There-

fore, Fields alleged, in 1987, while his direct appeal was

pending, Wharrie solicited false testimony from Earl

Hawkins, asking him to identify Fields as the shooter

and verify Sumner’s account of the murders to conceal

his own wrongdoing. In exchange for this revised testi-

mony, as well as testimony against other El Rukn gang

members, Wharrie arranged for Hawkins’ removal

from death row.

The prosecution did not introduce Hawkins’ revised

account of the murders during Fields’ appeal. Indeed,

the prosecution did not use Hawkins’ testimony until

a decade later when, in 1998, ASA Kelley agreed to

dismiss untried murder charges against him in ex-

change for his testimony against Fields at retrial.

Fields raised additional claims against ASA Kelley,

claiming that Kelley coerced eyewitness Randy

Langston to falsely identify him during his retrial as

involved in the murders. During the original trial,

Langston testified that Fields was involved, but he

No. 11-2035 5

later recanted his identifications. He testified during

Fields’ sentencing that he had been coerced by

Chicago police to incriminate Fields. Fields contended

that Kelley knew Langston had recanted, but none-

theless proffered his false testimony during retrial.

Fields alleges that at no time did either Wharrie or

Kelley disclose to him the tactics they employed to

elicit the testimony against him or that the testimony

was false.

B. Procedural Background

Wharrie and Kelley moved to dismiss Fields’ Third

Amended Complaint against them as barred by absolute

prosecutorial immunity and by Illinois sovereign

immunity law.

The district court denied their motion in part. It re-

jected absolute prosecutorial immunity for Wharrie

from the allegation that he negotiated for Hawkins’

false testimony at retrial and suppressed its falsity

from Fields. Since Wharrie no longer participated on

the team prosecuting Fields during his appeal or at his

second trial, nor acted on its behalf when he induced

Hawkins’ incriminating statements, the court found

him entitled only to qualified immunity.

The district court also rejected absolute immunity for

Kelley from the allegation that he coerced false state-

ments from Randy Langston at retrial. The court stated

that he was entitled to absolute immunity for his use of

the statements at trial and for withholding exculpatory

6 No. 11-2035

evidence on the means by which the statements were

obtained, but it concluded that qualified immunity was

the proper standard to apply to the act of coercion it-

self. The court only “assum[ed] that this conduct did

not merit the protection of absolute immunity.” It pro-

vided no further justification for this assumption.

Finally, the court rejected Wharrie and Kelley’s argu-

ment that Illinois sovereign immunity law preempted

its jurisdiction over Fields’ state-law claims against

them. The court found that, in this case, the necessary

criteria were not satisfied to treat claims against indi-

vidual officers in their personal capacities as claims

against the State. It retained jurisdiction.

Wharrie and Kelley appeal these judgments.

II. Discussion

A district court’s denial of a motion to dismiss based

on absolute immunity or state sovereign immunity are

questions of law that we review de novo. See Richman

v. Sheahan, 270 F.3d 430, 434 (7th Cir. 2001). We construe

the complaint in the light most favorable to Fields, “ac-

cepting as true all well-pleaded facts alleged, and

drawing all possible inferences in [his] favor.” See Heyde

v. Pittenger, 633 F.3d 512, 516 (7th Cir. 2011).

A. The Scope of a Prosecutor’s Absolute Immunity

A prosecutor is absolutely immune from suit for all

actions and decisions undertaken in furtherance of his

No. 11-2035 7

prosecutorial duties. Imbler v. Pachtman, 424 U.S. 409,

410 (1976). Whether or not an action falls within the

scope of his prosecutorial duties depends upon its func-

tion. See Van de Kamp v. Goldstein, 555 U.S. 335, 342-43

(2010) (citing Burns v. Reed, 500 U.S. 478, 486 (1991)). The

analysis hinges on whether the prosecutor is, at the time,

acting as an officer of the court, as well as on his action’s

relatedness to the judicial phase of the criminal process.

Imbler, 424 U.S. at 430, 431 n.33.

Absolute immunity extends beyond an individual

prosecutor’s decision to indict or try a case. See Van

de Kamp, 555 U.S. at 344-48. The protection endeavors

to preserve the functioning of the public office, id. at

345 (citing Kalina v. Fletcher, 522 U.S. 118, 125 (1997)),

and, thus, encompasses any action directly relevant to a

prosecutor’s ability to conduct a trial. Id. at 344 (distin-

guishing between administrative actions like training

prosecutors on properly disclosing to the defense

material evidence, which are shielded as prosecutorial

functions, and administrative decisions such as work-

place hiring and facilities management, which do not

fall withing the ambit of absolute immunity).1

1

We reiterate that absolute immunity for prosecutorial func-

tions protects judicial resources by preventing the retrial of

every criminal offense in a new forum, as well as encourages

prosecutors to volunteer for and vigorously perform the job

by shielding them from frivolous suits and the cor-

responding litigation costs. See Buckley v. Fitzsimmons, 509

U.S. 259, 270 n.4 (1993) (“Buckley III”) (citing Imbler, 424 U.S. at

424-25).

8 No. 11-2035

Nevertheless, a prosecutor has job responsibilities

that are not prosecutorial in nature. There exists a “dif-

ference between [his] advocate’s role in evaluating evi-

dence and interviewing witnesses as he prepares for

trial . . . and [his] detective’s role in searching for the

clues and corroboration that might give him probable

cause to recommend that a suspect be arrested . . . .”

Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993) (“Buckley

III”). Actions and decisions made in accordance with

the latter set of responsibilities entitle him only to

the qualified immunity granted to the police and other

members of the prosecution team who share those duties.

Id. (citing Hampton v. Chicago, 484 F.2d 602, 608 (7th

Cir. 1993)).

1. ASA Wharrie

Fields contends that ASA Wharrie suppressed the fact

that he asked Hawkins to lie if Fields were retried,

which was not a prosecutorial decision. He relies on

Houston v. Partee, 978 F.2d 362 (7th Cir. 1992), an

earlier case before us in which Wharrie was sued

under Section 1983 for due process violations and

received only qualified immunity. In Partee, Wharrie

prosecuted to conviction Elton Houston and Robert

Brown for murder. While Houston and Brown’s

appeals were pending, Wharrie participated in a long-

term investigation into the El Rukn gang and several of

its members. As part of that investigation, Anthony

Sumner was arrested and, subsequently, agreed to

become a cooperating witness. As he detailed numerous

No. 11-2035 9

crimes that he and the El Rukn committed, he disclosed

to prosecutors, including Wharrie, that J.L. Houston,

Earl Hawkins, and Derrick Kees committed the murder

for which Elton Houston and Brown were convicted.

Wharrie never volunteered this information to Elton

Houston and Brown. When Elton Houston and

Brown’s counsel requested any favorable details that

Sumner had revealed, Wharrie told them that he had

received none.

Several years later, Hawkins confessed to the murder

and corroborated Sumner’s account, exonerating Elton

Houston and Brown. Houston and Brown sued Wharrie

under Section 1983. As he does now, Wharrie invoked

absolute immunity. We denied that protection and con-

cluded that Wharrie enjoyed only qualified immunity

because he “had already succeeded in obtaining the

convictions of Houston and Brown, and the prosecution

of Houston’s and Brown’s appeal had been passed on

to others in the State’s Attorney’s office.” Id. at

366. We held that absolute immunity does not continue

indefinitely, but ends once a prosecutor is no longer

associated with the disposition of an individual case. Id.

at 366-67.

Relying on our Partee holding, Fields argues that since

Wharrie neither defended against his direct appeal nor

prosecuted him on retrial, he no longer functioned as a

prosecutor when he suppressed the false nature of

Hawkins’ retrial testimony against him.

Wharrie counters that the Supreme Court’s ruling in

Van de Kamp v. Goldstein, 555 U.S. 335, overrules Partee

to the extent that it held that a prosecutor’s direct par-

10 No. 11-2035

ticipation on a trial or appellate team is required for

absolute immunity. In Van de Kamp, the Court considered

whether or not an individual prosecutor’s supervisors

received absolute immunity for their failure to train him

on proper disclosure under Giglio v. United States, 405

U.S. 150 (1972), which resulted in a violation of the de-

fendant’s due process. 555 U.S. at 343-44. In granting

absolute immunity, the Court questioned whether

absolute immunity would apply where a plaintiff sought

damages “not only from the trial prosecutor but also

from a supervisory prosecutor or from the trial pros-

ecutor’s colleagues—all on the ground that they

should have found and turned over . . . impeachment

material . . . .” 555 U.S. at 345. The Court concluded that

absolute immunity would apply to all of these prosecutors

because their behavior, “taken individually or separately,

would involve preparation for trial and would be inti-

mately associated with the judicial phase of the criminal

process because it concerned the evidence presented at

trial.” Id. (internal quotation marks, omissions, and cita-

tions omitted). Wharrie claims that, like the Court’s

hypothetical, his suppression in Partee and at issue

here concerned the evidence presented at trial or on

appeal such that it is of no moment that he solicited

the evidence in question when he was not the designated

prosecutor on the case.

i. Brady and Giglio Obligations Are Functionally

Prosecutorial

Like all determinations into the type of immunity

available for a prosecutor, this inquiry is context-depend-

No. 11-2035 11

ent. Prosecutors do not function as advocates before

probable cause to arrest a suspect exists. See Buckley III,

509 U.S. at 274. If a prosecutor plants evidence before

someone is arrested, he enjoys only qualified immunity.

See id. at 275-76 (holding that a prosecutor’s fabrication

of false evidence before a suspect was arrested or a

grand jury was empaneled merited qualified immunity

because “[a] prosecutor may not shield his investiga-

tive work with the aegis of absolute immunity merely

because, after a suspect is eventually arrested, indicted,

and tried, that work may be retrospectively described

as ‘preparation’ for a possible trial”). Yet, for that same

fabrication of evidence, if he commits the act during a

judicial proceeding, he receives absolute immunity. See

Burns, 500 U.S. at 489-92. The question before us, then,

is whether, once judicial proceedings have been

initiated, the trial prosecutor, who fabricates evidence

after the trial, ceases to function in a prosecutorial

manner once he is no longer the specific prosecutor

handling the appeal or retrial.

In Partee, we answered this question affirmatively.

We concluded that once a prosecutor stopped partici-

pating on a particular trial team, his “knowledge of

and failure to disclose [material evidence] . . . had no

connection to [his] role as advocate for the State.” Partee,

978 F.2d at 366. The Supreme Court’s reasoning in Van de

Kamp, however, suggests that a prosecutor’s direct par-

ticipation in an appeal or retrial is no longer disposi-

tive of his right to absolute immunity. The Court’s hypo-

thetical conferred absolute immunity upon a pros-

ecutor’s colleagues and supervisors—who may not have

12 No. 11-2035

been directly involved in his particular case—for their

failure to satisfy their disclosure obligations under

Giglio, 405 U.S. 150, and Brady v. Maryland, 373 U.S.

83 (1963). Van de Kamp, 555 U.S. at 345.

The Court did not explicitly state that the colleagues

and supervisors had any individual Brady or Giglio ob-

ligations. See Van de Kamp, 555 U.S. at 344-45. That is, it

did not expressly instruct us that every individual pros-

ecutor in an office owes a Brady or Giglio obligation to

a defendant solely due to his employment in the

office, regardless of whether or not he is involved in

that defendant’s prosecution.2 Yet, for purposes of the

hypothetical, the Court assumed that the supervisors

and office prosecutors in question had Brady and Giglio

obligations to the defendant and suggested that, insofar

as these disclosure responsibilities existed, absolute

immunity applied. Hence, Brady and Giglio duties are

functionally prosecutorial—they are intimately related to

the judicial phase of the criminal process. See Imbler, 424

U.S. at 430; see also Brady, 373 U.S. at 87 (“[S]uppression by

the prosecution of evidence favorable to an accused . . .

violates due process where the evidence is material

either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.”).

While other state actors, like the police, share the pros-

ecutor’s constitutional obligation to disclose exculpatory

2

The Supreme Court, therefore, has not overruled our view that

“absolute immunity [does not] indefinitely attach[] to every

[prosecutor in an office] once a prosecution begins.” See Partee,

978 F.2d at 366.

No. 11-2035 13

evidence to the defendant, the prosecutor owes a

distinct, if not heightened, disclosure obligation to the

defendant once judicial proceedings commence. See

Arizona v. Youngblood, 488 U.S. 51, 56-58 (1988) (recognizing

that police have a due process obligation to preserve

and disclose evidence they know to have exculpatory

value and distinguishing that duty, and the framework

by which it is analyzed, from one imposed by Brady).

As the Court explained in Brady, the prosecutor is the

“architect” of the trial, 373 U.S. at 87-88, and his purpose

is to both secure criminal convictions and ensure that

“criminal trials are fair,” id. at 87, even where his police

officers would not. See also Kyles v. Whitley, 514 U.S.

419, 438 (1995) (identifying the prosecutor as “the final

arbiter[] of the government’s obligation to ensure

fair trials”). Thus, we impose upon the prosecutor the

responsibility to disclose not only any evidence within

his own files, see United States v. Agurs, 427 U.S. 97, 110

(1976), but also any evidence possessed exclusively

by those actors assisting him in investigating and trying

his case, see Whitley, 514 U.S. at 437 (“[T]he individual

prosecutor has a duty to learn of any favorable evi-

dence known to the others acting on the government’s

behalf . . . .”). Once a defendant is indicted, the dis-

closure obligation and the due process in question cor-

respond to his trial rights, and a prosecutor’s failure

to uphold that obligation, in the form of suppression,

coincides with his prosecutorial function.

One might argue that since we allow civil suits

against police officers for causing Brady violations, see,

e.g., Holland v. City of Chicago, 643 F.3d 248, 255 (7th Cir.

14 No. 11-2035

2011) (noting that “police officers can be held liable

under Brady and its progeny when they withhold ex-

culpatory evidence from prosecutors and the with-

holding of evidence is ‘material’ ”), failure to fulfill due

process in this manner is not a functionally prosecutorial

action. In our view, however, a Brady violation is not

committed unless and until a prosecutor, in the

course of preparing for or conducting a trial or direct

appeal, does not turn over the material evidence in ques-

tion. See discussion of Buckley v. Fitzsimmons (“Buckley IV”)

infra Part II.A.1.iv. Brady and Giglio violations breach

a defendant’s trial rights and are, thus, inherently pros-

ecutorial in nature. Allowing a police officer to be sued

for his role in eventually causing the prosecutor to

violate Brady or Giglio does not alter the nature of the

violation.

We recognize that this analysis allows for police

officers to potentially incur financial liability where a

prosecutor may not, even though the prosecutor and

the police officers may both fabricate or suppress evi-

dence. Herein lies the rub: absolute immunity doc-

trine focuses on whether the nature of the action is prose-

cutorial, not the fact that the actor is a prosecutor;

Brady and its progeny, by contrast, elevate the pros-

ecutor—qua prosecutor—as ultimately responsible for

fulfilling the State’s obligation to provide fair process.

See Brady, 373 U.S. at 87-88; see also Whitley, 514 U.S. at

538; Agurs, 427 U.S. at 111. Under Brady, the office of pros-

ecutor entails a special duty to “get it right.” Perhaps

counterintuitively, this heightened duty carries with it

greater immunity from financial liability. Yet, so long as

No. 11-2035 15

we view Brady and Giglio as distinct versions of the right

to due process, and the prosecutor as responsible for

ensuring Brady and Giglio compliance, we must also

recognize that in fulfilling this responsibility, the prosecu-

tor acts as an officer of the court embroiled in the

judicial phase of the criminal process, see Imbler, 424 U.S.

at 430, 431 n.33. For the reasons we value absolute pros-

ecutorial immunity, see supra note 1, a prosecutor is

entitled to the protection with respect to his actions

and decisions pertaining to his fulfillment of Brady and

Giglio.

Our immunity analysis, therefore, must focus not only

on whether a prosecutor is actively participating on a

trial team when he suppresses material evidence, but

also on whether he owes a continuing Brady or Giglio

obligation to the defendant in question. If he does,

he functions as a prosecutor when he commits the sup-

pression.3

3

Since Imbler, the Court has rejected the distinction between

suppressing exonerating evidence and fabricating incrim-

inating evidence as relevant for purposes of invoking absolute

prosecutorial immunity because “[t]he distinction is not

susceptible of practical application. A claim of using perjured

testimony simply may be reframed and asserted as a claim

of suppression of the evidence upon which the knowledge of

perjury rested.” 424 U.S. at 431 n.34; see also Van de Kamp,

555 U.S. at 343.

16 No. 11-2035

ii. A Prosecutor’s Brady and Giglio Duties Persist

Until a Defendant’s Conviction Becomes Final

A prosecutor’s Brady and Giglio duties may survive the

conclusion of a trial. See Imbler, 424 U.S. at 427 n.25

(“[A]fter a conviction, the prosecutor is also bound by

the ethics of his office to inform the appropriate

authority of after-acquired or other [material] informa-

tion that casts doubt upon the correctness of the convic-

tion.”). When a State grants a criminal defendant a right

to direct appeal, “the proceedings in the appellate

tribunal are . . . part of the process of law under which

he is held in custody by the State, and to be considered

in determining any question of alleged deprivation of

his life or liberty contrary to the Fourteenth Amend-

ment.” Frank v. Magnum, 237 U.S. 309, 327 (1915) (internal

citations omitted); see also Evitts v. Lucey, 469 U.S. 387, 393

(1985) (“[I]f a State has created appellate courts as an

integral part of the system for finally adjudicating the

guilt or innocence of a defendant, the procedures used in

deciding appeals must comport with the demands of

the Due Process and Equal Protection Clauses of the

Constitution.”) (internal citations omitted). Therefore, a

defendant’s conviction is not final as a matter of law

until he exhausts the direct appeals afforded to him,

and, until that exhaustion, he is entitled to the full

breadth of due process available. See Gonzalez v. Thaler,

No. 10-895, 2012 WL 43513, at *3, 9 (S. Ct. Jan. 10, 2012)

(holding that “[f]or petitioners who pursue direct review

all the way to [the Supreme Court], the judgment

becomes final at the conclusion of direct review—when

this Court affirms a conviction on the merits or denies

No. 11-2035 17

a petition for certiorari [and that] [f]or all other

petitioners, the judgment becomes final at the expiration

of the time for seeking such review—when the time for

pursuing direct review in this Court, or in state court,

expires”); Skinner v. Switzer, 131 S. Ct. 1289, 1303 (2011)

(Thomas, J., dissenting) (explaining that “[t]rial pro-

cedures are used to initially convict a prisoner; appellate

procedures review the validity of that conviction before

it becomes final; and collateral review procedures

permit challenge to the conviction after it is final”) (em-

phasis added). Accordingly, a prosecutor’s Brady and

Giglio obligations remain in full effect on direct appeal

and in the event of retrial because the defendant’s con-

viction has not yet become final, and his right to

due process continues to demand judicial fairness. See

Monroe v. Blackburn, 476 U.S. 1145, 1148-49 (1986) (Mar-

shall, J., dissenting from denial of certiorari) (“When

the sovereign has decided that justice will be best

served by qualifying the finality of a conviction so that a

convicted defendant may yet prove his innocence, its

attorney is not free to choose otherwise. And until

factfinding proceedings, or the possibility of them, is [sic]

terminated, the State remains bound by the rules of

simple fairness that Brady held to be of constitutional

dimension.”). His disclosure responsibilities do not end

until the defendant either has been acquitted or has

availed himself of all the direct process to which he is

entitled. See Dist. Attorney’s Office for the Third Judicial

Dist. v. Osborne, 129 S. Ct. 2308, 2320 (2009) (distinguishing

a defendant’s due process interest in his postconviction

relief after he has received a fair trial from his interest

18 No. 11-2035

before his conviction becomes final and rejecting Brady

and Giglio as continuing obligations on collateral chal-

lenge).

iii. ASA Wharrie is Absolutely Immune From Suit

The district court suggests that because Wharrie was

preparing for other trials and no longer directly involved

in Fields’ appeal or retrial, this fact wrests from him

his prosecutorial function. We disagree. Wharrie knew

the case’s evidentiary strengths and weaknesses; he

knew what mistakes transpired during the original trial;

he conducted the interviews with the original witnesses;

he knew how those witnesses’ testimony had been ac-

quired; he knew how those witnesses’ stories had or

had not changed over time; and he knew what, if any,

relevant information had been acquired in the course of

the State’s Attorney’s Office’s further investigations

into the El Rukn gang’s criminal activities. His Brady

and Giglio obligations did not expire because he no

longer personally handled the appeal or retrial. See

Giglio, 405 U.S. at 154 (finding that where an individual

prosecutor presented the Government’s case to the

grand jury, but did not try the case, the individual pros-

ecutor’s uninvolvement with the trial was not con-

trolling, and his failure to inform his supervisors or

associates about material evidence violated Brady);

see also Evans v. Virginia, 471 U.S. 1025, 1029 n.3 (1985)

(Marshall, J., dissenting from denial of certiorari) (citing

Giglio, 405 U.S. at 154) (stating that for purposes of a

Brady or Giglio violation, “it [does not] matter whether

No. 11-2035 19

the state attorney who appeared at the sentencing

hearing, and who admitted that he knew the evidence

on which the State relied was false, took part in pre-

paring the State’s briefs [on appeal]. The prosecutor’s

office is an entity, not just a group of isolated individuals,

and the [original] prosecutor is responsible for assuring

that relevant information is communicated among the

lawyers in the office”). As the original prosecutor on the

case, Wharrie had a continuing Brady obligation to

reveal material evidence to the defense until Fields’

conviction became final, as the ongoing judicial process

continued to evolve. See Imbler, 424 U.S. at 427 n.25; Agurs,

427 U.S. at 111 (noting “special significance to the pros-

ecutor’s obligation to serve the cause of justice”). He

was not an uninvolved prosecutor in the office who had

never before heard of the case or knew relatively little

about its details and happened upon and suppressed

material evidence. Were he so, we could fairly

characterize him as “in the same position as . . . state law

enforcement officials who, during a large scale investiga-

tion of the El Rukn gang, discovered—and then sup-

pressed—evidence which could have exculpated

[Fields].” See Partee, 978 F.2d at 367. As the original prose-

cutor, however, he was not fully divorced from Fields’

judicial proceedings until all direct judicial remedies

were exhausted and Fields’ conviction became final. It

follows that the immunity attendant to his prosecutorial

disclosure obligation survives his departure from the

courtroom as well.

The Supreme Court, in Imbler, identified the policy

aims underlying absolute immunity, which support its

20 No. 11-2035

application in this situation. 424 U.S. at 427. It warned

that subjecting prosecutors to financial liability could

“dampen the prosecutor’s exercise of his [prosecutorial]

duty to bring to the attention of the court or of proper

officials all significant evidence suggestive of innocence

or mitigation.” Id. at 427 n.25. While a prosecutor guilty

of the fabrication with which Wharrie is accused might

never be incentivized to reveal his violation—regardless

of absolute immunity—we recognize this possibility as a

cost outweighed by absolute immunity’s effect on the

“ultimate fairness of the operation of the [judicial]

system [overall].” Id. at 427. Though a charged uncon-

stitutional act, Wharrie’s alleged suppression in this

case was intimately associated with the judicial phase

of the criminal process and is, therefore, immune from

civil suit. See id. at 430.

iv. Even If Wharrie Were Not Absolutely Immune

as the Original Prosecutor on the Case, Fields

Fails to State a Claim Against Him

Assuming arguendo that Wharrie did not act

prosecutorially when he obtained Hawkins’ testimony,

Fields did not suffer a constitutional harm with respect

to Hawkins’ new, incriminating version of events until

ASA Kelley introduced the testimony at retrial. In

Buckley v. Fitzsimmons (“Buckley IV”), we distinguished

between constitutional wrongs completed out of court

and regrettable actions out of court that, by themselves,

do not support recovery under Section 1983. 20 F.3d

789, 796 (1994). We explained that fabricating evidence,

No. 11-2035 21

including in the form of testimony, is not an actionable

constitutional wrong.4 Id. at 795-96. The constitutional

violation occurs when the means by which the testimony

was acquired are not disclosed at trial—or when other

information that impeach the testimony’s reliability

are not shared with the defense. Id. In this case, the con-

stitutional violation occurred when, at retrial, the pros-

ecution used Hawkins’ testimony and never re-

vealed to Fields that Wharrie had asked Hawkins to lie.

See id. at 796 (citing Mooney v. Holohan, 294 U.S. 103,

112 (1935)).

Had Wharrie, after negotiating for Hawkins’ false

testimony, handled the retrial himself, his violation of

Fields’ due process rights would be absolutely immu-

nized. See id. at 796-97 (citing Jones v. Chicago, 856 F.2d

985, 993-94 (7th Cir. 1988)). He would have been

complicit in the fabrication of testimony during the

“investigatory phase” of the retrial, but the constitu-

tional injury would be the direct result of the absolutely

immunized prosecutorial decision to proceed to trial

and introduce the testimony. See id. As he did not do so,

the critical question is whether ASA Kelley knew that the

testimony was false when he proceeded to retry the case

and introduced the testimony.

In Buckley IV, we noted that an actionable, out-of-court

wrong exists against police officers who fabricate

4

We also explained that inducing a witness’s testimony by

“promises to go easy” does not itself violate the Constitution.

Buckley IV, 20 F.3d at 794.

22 No. 11-2035

evidence during the investigatory phase of a case and

“bil[k]” a prosecutor into filing charges that he would

not have filed but for that evidence. 20 F.3d at 796-97

(citing Jones, 856 F.2d at 993-94). The officers would

receive only qualified immunity, though the prosecutor

would be absolutely immune from suit. Id. We left open

the question of whether this analysis applied to a pros-

ecutor who handled the investigatory phase of a case

and similarly deceived his successor into continuing

prosecution. Id. at 797 n.2. Assuming, for the sake of

argument, that we answer this question affirmatively,

Wharrie would be subject to financial liability only

if Kelley did not know that he had asked Hawkins to

lie and would not have retried the case had he been

aware of that information. See id.

Fields suggests, however, that Kelley knew Hawkins’

testimony was false and retried the case regardless.

Sumner recanted his identification in 1991, almost

seven years before Kelley joined the prosecution team,

and Kelley was aware that Hawkins’ new story was a

marked departure from the prosecution’s original case.

Although he does not explicitly state that Kelley knew

that Wharrie asked Hawkins to lie, he strongly implies

that he did. Therefore, the alleged constitutional harm

occurred as Kelley exercised his prosecutorial duties at

trial and resulted from his prosecutorial discretion re-

garding how to try his case. Fields has not, therefore,

stated a claim against Wharrie based upon his soliciting

Hawkins’ false testimony.

No. 11-2035 23

2. ASA Kelley

For the same reasons, Fields fails to state a claim

against Kelley on the grounds that he solicited false

testimony from Randy Langston before retrial. Fields

contends that, prior to ever being assigned a role on the

retrial team, Kelley “used coercive tactics to induce

eyewitness Randy Langston to return back to the false

testimony he had given at the first trial . . . .” He

argues that because the act of solicitation occurred

before Kelley was a prosecutor on the case, Kelley

enjoys only qualified immunity for coercing the false

testimony.

This analysis misses the point. Prior to the introduction

of Langston’s false testimony during retrial, Fields

suffered no constitutional violation. The fact that the

testimony was improperly coerced violated only

Langston’s constitutional rights. See Buckley IV, 20 F.3d

at 794-95 (“Coercing witnesses to speak . . . is a genuine

constitutional wrong, but the persons aggrieved would

be [the person being interrogated] rather than [the de-

fendant, if they are not the same].”).

Kelley violated Fields’ due process rights when he

introduced the false testimony at trial and failed to reveal

to him the coercion used to elicit it. See id. at 795-96.

Had Kelley been unaware of the coerced nature of the

testimony, Fields could sustain a claim against those

parties that coerced the confession and “bilked” Kelley

into retrying the case on its basis. See id. at 796-97 (citing

Jones, 856 F.2d at 993-94). These are not the facts of

this case, however. Kelley was aware of the coercion

24 No. 11-2035

applied: he was the one that applied it. Accordingly,

Fields cannot maintain an independent claim against

him for the coercion of the testimony independent of

its use at retrial.5 See id.

B. The District Court Enjoys Supplemental Jurisdiction

Wharrie and Kelley claim that the district court erred

in retaining jurisdiction over Fields’ state-law claims.

Our recent decision in Rodriguez v. Cook County, Illinois

makes clear that a state employee’s sovereign-im-

munity defense does not impact a federal court’s juris-

diction over a case. No. 11-1401, 2011 WL 6287910, at *3-4

(7th Cir. Dec. 15, 2011). Accordingly, we conclude

that the district court has jurisdiction over the state-

law claims.

Nevertheless, in light of our holding regarding Wharrie

and Kelley’s absolute immunity, the district court may

5

Note that since Fields’ retrial resulted in acquittal and a

certificate of innocence, suppressing the coercion might not be

a Brady violation at all because, counterintuitively, it was not

material. See United States v. Bagley, 473 U.S. 667, 682 (1985)

(citing Strickland v. Washington, 466 U.S. 668, 694 (1984)) (ex-

plaining that evidence is material “if there is a reasonable

probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different”); see

also Whitley, 514 U.S. at 434 (“[T]he question is not whether

the defendant would more likely than not have received a

different verdict with the evidence, but whether in its absence

he received a . . . verdict worthy of confidence.”).

No. 11-2035 25

wish to consider declining to exercise its supplemental

jurisdiction. Without any remaining claims against

Wharrie and Kelley under Section 1983, we suggest that

the challenging state-law issues presented may more

appropriately be resolved by the state court. See RWJ Mgmt.

Co., Inc. v. BP Prods. N. Am., Inc., No. 11-1268, 2012 WL

499043, at *2-3 (7th Cir. Feb. 16, 2012) (discussing the

presumption in favor of relinquishing supplemental

jurisdiction when no federal claims remain); Al’s Serv.

Ctr. v. BP Prods. N. Am., Inc., 599 F.3d 720, 727 (7th Cir.

2010) (same). We, thus, remand to the district court to

determine whether it wishes to (1) retain supplemental

jurisdiction over Fields’ state-law claims and determine

the immunity, if any, to which Wharrie and Kelley are

entitled under Illinois law, see 28 U.S.C. § 1367(c)(3) (“The

district courts may decline to exercise supplemental

jurisdiction over a claim . . . if . . . the district court

has dismissed all claims over which it has original juris-

diction . . . .”) (emphasis added), or (2) dismiss the state-

law claims without prejudice, see Harvey v. Town of

Merrillville, 649 F.3d 526, 532-33 (7th Cir. 2011) (“[I]t is

the well-established law of this circuit that the usual

practice is to dismiss without prejudice state supple-

mental claims whenever all federal claims have been

dismissed prior to trial.” (quoting Groce v. Eli Lilly & Co.,

193 F.3d 496, 501 (7th Cir. 1999))).

III. Conclusion

For the foregoing reasons, we R EVERSE the district

court’s denial of absolute immunity and hold that

26 No. 11-2035

Wharrie and Kelley are immune from suit under

Section 1983. With respect to the district court’s jurisdic-

tion over Fields’ state-law claims, we R EMAND this case

to the district court for further proceedings consistent

with this opinion.

2-28-12