Opinion

Beaman v. Freesmeyer

2019 IL App (4th) 160527

Court: Appellate Court of Illinois
Filed: Dec 17, 2019
Status: Published
Cited by: 5 cases
Authority: More cited than 54.3%

affirming summary judgment on civil conspiracy to commit malicious prosecution claim where there was no underlying malicious prosecution

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affirming summary judgment on civil conspiracy to commit malicious prosecution claim where there was no underlying malicious prosecution

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Appellate Court Date: 2021.02.02

13:44:17 -06'00'

Beaman v. Freesmeyer, 2019 IL App (4th) 160527

Appellate Court ALAN BEAMAN, Plaintiff-Appellant, v. TIM FREESMEYER,

Caption Former Normal Police Detective; DAVE WARNER, Former Normal

Police Detective; FRANK ZAYAS, Former Normal Police

Lieutenant; and THE TOWN OF NORMAL, ILLINOIS, Defendants-

Appellees.

District & No. Fourth District

No. 4-16-0527

Filed December 17, 2019

Decision Under Appeal from the Circuit Court of McLean County, No. 14-L-51; the

Review Hon. Richard L. Broch, Judge, presiding.

Judgment Affirmed.

Counsel on David M. Shapiro and Locke E. Bowman, of Roderick and Solange

Appeal MacArthur Justice Center, and Jeffrey Urdangen, of Bluhm Legal

Clinic, both of Northwestern Pritzker School of Law, of Chicago, for

appellant.

Thomas G. DiCianni, of Ancel Glink P.C., of Chicago, for appellees.

Arthur Loevy, Jon Loevy, Steven Art, and Alison R. Leff, of Loevy &

Loevy, of Chicago, for amici curiae former prosecutors Stuart Chanen

et al.

Tamara L. Cummings, of Western Springs, Bruce Bialorucki, of

Springfield, Dan Hassinger, of Decatur, and Pasquale A. Fioretto, of

Baum Sigman Auerbach & Neuman, Ltd., of Chicago, for amici curiae

Illinois FOP Labor Council et al.

Mark A. Flessner, Corporation Counsel, of Chicago (Benna Ruth

Solomon, Myriam Zreczny Kasper, and Elizabeth Mary Tisher,

Assistant Corporation Counsel, of counsel), for amici curiae City of

Chicago et al.

Panel JUSTICE KNECHT delivered the judgment of the court, with opinion.

Justices Steigmann and Harris concurred in the judgment and opinion.

OPINION

¶1 In 2008, the Supreme Court of Illinois overturned plaintiff’s conviction for the murder of

his ex-girlfriend, Jennifer Lockmiller, upon concluding the State violated his right to due

process when it failed to disclose material and exculpatory information about an alternative

suspect. People v. Beaman, 229 Ill. 2d 56, 890 N.E.2d 500 (2008). In April 2014, plaintiff

initiated this action, alleging defendants, Tim Freesmeyer, Dave Warner, and Frank Zayas,

former officers in the Normal Police Department, acted maliciously in investigating him and

in aiding in his prosecution. Plaintiff asserted claims of malicious prosecution, intentional

infliction of emotional distress, and conspiracy. Plaintiff requested damages from defendant

the Town of Normal on theories of respondeat superior and indemnification.

¶2 In June 2016, the trial court, finding no genuine issue of material fact as to plaintiff’s claims

of malicious prosecution, granted defendants’ motion for summary judgment. Plaintiff

appealed, arguing, in part, a reasonable jury could find in his favor on each of the elements of

its malicious-prosecution claim. We affirmed, concluding the trial court properly found no

genuine issue of material fact existed on the first element of malicious prosecution—the

commencement or continuance of an original criminal or civil judicial proceeding by the

defendants.

¶3 In February 2019, the Supreme Court of Illinois reversed our decision. The court concluded

our review of the aforementioned element was improperly limited. The court remanded,

directing this court to determine “whether the defendants’ conduct or actions proximately

caused the commencement or continuance of the original criminal proceeding by determining

whether defendants played a significant role in [plaintiff’s] prosecution.” Beaman v.

Freesmeyer, 2019 IL 122654, ¶ 47.

¶4 On remand, we have considered the “significant role” test as set forth in Beaman, 2019 IL

122654, ¶ 45, and affirm the summary judgment order.

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¶5 I. BACKGROUND

¶6 Before summarizing the facts of this case, we note both sides of this dispute have hindered

this court’s ability to verify the facts set forth in the briefs. The parties, defendants more so,

repeatedly failed to provide specific cites to the record to support their claims, thereby asking

this court to perform appellate counsel’s briefing duties. See Ill. S. Ct. R. 341(h)(6) (eff. May

25, 2018) (requiring the statement of facts contain “appropriate reference to the pages of the

record on appeal”); see also Maun v. Department of Professional Regulation, 299 Ill. App. 3d

388, 399, 701 N.E.2d 791, 799 (1998) (“Strict adherence to the requirement of citing relevant

pages of the record is necessary to expedite and facilitate the administration of justice.”). In

the appellee brief, defendants routinely cited the first page of a deposition, instead of the page

on which the support for the alleged fact may be found. By doing so, defendants ask this court

to review hundreds of pages of deposition testimony to find the one or two pages containing

specific facts in support of their defense. Both sides cited their statements of material facts

filed in the trial court without providing citations to the appellate record for this court to verify

those facts.

¶7 In addition, plaintiff’s statement of facts is rife with argument and conclusions in violation

of Illinois Supreme Court Rule 341(h)(6) (eff. May 25, 2018) (“Statement of Facts *** shall

contain the facts necessary to an understanding of the case, stated accurately and fairly without

argument or comment ***.”). For example, headings in plaintiff’s statement of facts include

“Freesmeyer Delivers the Indictment and Conviction,” “Defendants Ignore a Witness who

Exonerates Beaman,” and “Warner Hides Evidence.”

¶8 In our attempt to summarize the evidence in this case, we rely primarily on the facts

provided in the published cases on this matter. We also include facts that are readily verifiable,

but we have not fulfilled appellate counsel’s duties by using judicial resources to search the

voluminous record to find support for every alleged fact.

¶9 A. Lockmiller’s Murder and the Investigation

¶ 10 On August 28, 1993, the body of Lockmiller, a 21-year-old student at Illinois State

University, was found in her Normal, Illinois, apartment. Lockmiller’s shirt was pulled up,

exposing her breasts. Her shorts and underwear were down around one of her legs. The

electrical cord of an alarm clock was around Lockmiller’s throat. A pair of scissors protruded

from her chest. A box fan had been placed over Lockmiller’s face. A bag of trash, which may

have been taken from a trash can, was found on the living room sofa. The kitchen sink was

filled with dirty dishes. The book bags and purse found on a table appeared closed and

undisturbed. The wallet contained $17.71 in cash. Both the air conditioner and television were

on. The apartment showed no signs of forced entry. Lockmiller died from ligature strangulation

with the cord of the alarm clock. The investigators found no one who had seen Lockmiller

alive after her class ended at 11:50 a.m. on August 25, 1993.

¶ 11 A number of police officers from the Town of Normal Police Department (NPD) were

involved in the investigation. These officers included defendants: Freesmeyer, a detective;

Warner, a detective; and Zayas, a lieutenant. Early in the investigation, starting in October or

November 1993, Freesmeyer served as the principal detective on the investigation. Warner’s

role included serving as an evidence custodian and investigating one of the suspects, Stacey

Gates. Zayas supervised the detectives who worked on the investigation until he retired in

November 1994. Other individuals involved in the investigation included Charles Reynard, the

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McLean County State’s Attorney, and James Souk, assistant state’s attorney. Souk acted as the

lead prosecutor in plaintiff’s criminal case.

¶ 12 Police officers focused the investigation on plaintiff early in the case. Lockmiller’s body

was found by her friend, Morgan Keefe (now Hartman). Hartman attempted to contact

Lockmiller for several days. Hartman went to Lockmiller’s apartment. She called the police

upon finding her body. Hartman told the police she knew “who did it.” Hartman reported

Lockmiller was afraid of plaintiff. She heard Lockmiller “say over and over and over again

that she was afraid” of him. Lockmiller also reported to Hartman that plaintiff had broken

down her door and threatened suicide if she broke up with him. Hartman “was aware” plaintiff

“was possessive.” Hartman stated Lockmiller usually kept her apartment tidy.

¶ 13 While investigating plaintiff, the officers learned plaintiff, a student at Illinois Wesleyan

University, was residing with his parents in Rockford, Illinois, at the time of Lockmiller’s

murder. Rockford is approximately two hours from Normal by car. Detectives learned plaintiff

occasionally sang and played guitar and saxophone for his church youth group while home

from college. He was scheduled to rehearse on Wednesday, August 25, 1993, for the

performance the following Sunday. Plaintiff and the youth pastor arranged that time as

plaintiff’s “parents were coming in.”

¶ 14 Officers garnered information regarding plaintiff’s and Lockmiller’s relationship. Plaintiff

and Lockmiller began a tumultuous relationship in July 1992. The two broke up and rekindled

the relationship 17 to 18 times. The relationship ended about one month before the murder.

Detectives learned of a history of loud arguments. One argument ended when plaintiff drank

nail polish remover. According to letters found in Lockmiller’s apartment after her murder,

plaintiff wanted their relationship to be monogamous, but he suspected Lockmiller saw other

men. In the letters, plaintiff expressed he loved her “more passionately than Romeo did Juliet,

more hopelessly than Ophelia did Hamlet, more vengefully than Medea, Jason,” and stated,

“Don’t worry, I won’t kill anybody, I don’t believe in that. I do unto others as I would have

them unto me (from now on).” Shortly before her death, Lockmiller became involved with

Michael Swaine, plaintiff’s friend and roommate.

¶ 15 Lockmiller’s apartment showed no sign of forced entry. The police investigated individuals

Lockmiller knew. The police questioned Lockmiller’s current boyfriend and plaintiff’s

roommate, Swaine, as well as former boyfriends including plaintiff, Gates, and Larbi John

Murray. Swaine had an alibi. On August 25, 1993, the date the State concluded Lockmiller

was murdered, Swaine was working at a bookstore in Elmhurst, Illinois. Gates, who had moved

to Peoria to be closer to Lockmiller, also had an alibi. Records from a Peoria school showed

Gates was at work on August 25.

¶ 16 The NPD officers learned Murray was Lockmiller’s drug dealer. Murray and Lockmiller

had also been lovers. Murray was twice interviewed by police. Initially, Murray reported

leaving town on August 24, 1993, a day before the murder. Murray’s girlfriend, Debbie

Mackoway, however, told police they did not leave town until the afternoon of August 25.

Murray then amended his story, and his version was consistent with Mackoway’s report.

Murray informed officers he was alone at home before 2 p.m. on August 25. Murray resided

1.5 miles from Lockmiller. Murray had a criminal history. He faced charges of drug possession

with intent to deliver and of domestic violence for the abuse of Mackoway. According to

Mackoway, Murray also began using steroids and behaved erratically. Both cocaine and

steroids had been found in Murray’s apartment. Murray agreed to submit to a polygraph

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examination. At the start of the examination, Murray failed to follow instructions. The

examiner terminated the examination.

¶ 17 Investigators interviewed David Singley, Lockmiller’s neighbor. Singley informed

investigators he arrived home from class at 2 p.m. on August 25 and heard someone slam the

door to Lockmiller’s apartment. Singley stated he heard the stereo, the door open and close a

second time, and footsteps. Singley also reported noticing, around 4:30 p.m., the stereo was

off and the television had been turned on.

¶ 18 Lockmiller’s neighbors who lived directly below Lockmiller told detectives they overheard

fights between Lockmiller and a man who drove a silver Ford Escort. Plaintiff drove a

silver/grey Ford Escort. The neighbors recalled the fights occurred in January or February

1993. John Revis, another individual interviewed by Freesmeyer, reported once ripping off

plaintiff during a drug deal.

¶ 19 In an August 28, 1993, interview by Freesmeyer of Swaine, Swaine reported he and

plaintiff were friends. They were roommates for an unspecified time. Lockmiller and Swaine

started a relationship while Lockmiller and plaintiff “were going out.” Swaine reported

plaintiff made two holes in Lockmiller’s apartment walls. Swaine also reported the first time

plaintiff broke into Lockmiller’s apartment, he found Lockmiller “fooling around” with

Murray. The second time occurred within two months of Lockmiller’s death. Swaine was at

Lockmiller’s apartment. Plaintiff arrived and began screaming at Lockmiller. Swaine ran and

hid in the bedroom closet. Swaine heard plaintiff scream, “I know you are in there.” Plaintiff

broke through the door. On a different date, plaintiff searched Lockmiller’s trash, looking for

Swaine’s used condoms.

¶ 20 The investigation recovered seven fingerprints from the alarm clock found at Lockmiller’s

apartment. Two belonged to plaintiff, four to Swaine, and one remained unidentified.

¶ 21 As of August 29, 1993, one day after the discovery of the body, Souk concluded plaintiff

was the only suspect, but other people could be potential suspects. According to Souk, he did

not believe Murray had a motive to kill Lockmiller. While prosecuting plaintiff, Souk knew

Murray had provided Lockmiller with narcotics and marijuana, and conflicting statements had

been made about whether Lockmiller owed Murray money. Souk also knew Murray made a

mistake regarding his alibi and corrected that mistake in a second interview. Souk did not find

the mistake suspicious. At the time of the trial, Souk knew Murray began taking steroids in

January 1994 and had begun acting erratically. Before that time, Murray had not been

physically violent toward Mackoway.

¶ 22 In February 1994, Freesmeyer was involved in a consultation with the Chicago Police

Department (CPD) regarding the investigation. As the NPD had limited experience in

investigating homicides, the Normal chief of police suggested the consultation for suggestions

on the investigation. A copy of the case report was sent to the CPD. Detectives from the CPD

later met with Freesmeyer and others. The CPD detectives’ only suggestion was “to continue

to try to talk to [plaintiff] as long as [they] could.”

¶ 23 On May 16, 1994, a meeting was held to determine whether to arrest plaintiff for

Lockmiller’s murder. Those in attendance included Reynard, Souk, Freesmeyer, Zayas,

Normal Chief of Police James Taylor, and Detective Tony Daniels. During the meeting,

Reynard decided to charge plaintiff. Souk agreed. At his deposition, Daniels testified he

suggested a list of investigative avenues to pursue before arresting plaintiff. Souk responded,

“I think we’ve got our guy[,] *** we went as far as we can with this case.” Souk stated they

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were going to go ahead and issue a warrant for plaintiff’s arrest. Freesmeyer, in his deposition,

testified no one at the hearing questioned the decision to arrest plaintiff. He had no memory of

Daniels’s suggestions. Plaintiff was arrested in May 1994.

¶ 24 B. Grand Jury Proceedings

¶ 25 In July 1994, proceedings on Lockmiller’s murder were held before the grand jury. At the

hearing, Souk conducted the questioning. Freesmeyer, as well as other witnesses, testified.

During Freesmeyer’s testimony, the following questioning occurred:

“Q. I want to go now to some alibi evidence. First as to Michael Swaine, before we

get into his alibi, first let me ask you if your investigation revealed any conceivable

motive that Michael Swaine might have had to kill Jennifer Lockmiller?

A. No, Michael was the present boyfriend. When we picked him up at the scene,

extremely remorseful, crying and sobbing. We were able to find no motive whatsoever.

Q. *** [B]ut other than Mr. Beaman, were you able in the course of your

investigation to locate any other person anywhere who had any conceivable motive to

kill Jennifer Lockmiller?

A. No, not necessarily.

Q. Perhaps the best thing is why don’t you just summarize for us Mr. Swaine’s alibi

and how you were able to establish it?

A. In speaking with Mr. Swaine, I asked him where he was that week.”

¶ 26 Freesmeyer was questioned regarding whether his interviews of residents of the apartment

building revealed anything helpful to the case. He answered they did not.

¶ 27 Souk also questioned Freesmeyer about the time trials he performed on the route from the

Beaman residence in Rockford to Lockmiller’s apartment and the routes he took from Bell

Federal to the Beaman residence:

“A. However, considering the phone calls, if she would have left her mother’s

residence at 10:00 ***, she would have been home by 10:17. She could have made the

calls at 10:37 and 10:39. Left the house and arrived back at Walmart at approximately

10:57 or 11:00 ***. Give her 10 minutes to go into three different departments at

Walmart and check out. It would have been rushed, but it would be possible.

Q. And again, this was one of those rare occasions when you were driving the speed

limit?

A. That is correct.

Q. Now did you also on two occasions do the same kind of timing from Bell Federal

to the Beaman residence?

A. Yes, I did.

Q. On one of those occasions, did you basically drive it through town?

A. I drove the most direct route and I also drove what I thought to be the fastest

route, the two most logical ways to get to the Beaman residence from Bell Federal.

Q. On both those occasions, did you drive the speed limit?

A. Yes. The trip through town, I drove the speed limit[,] and I drove it on a

Wednesday afternoon at approximately 10:00 ***, so it would be very comparable to

the time that Mr. Beaman would have driven that route.

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Q. How long did that trip take going through town?

A. That trip took me 30 minutes. If he had left the bank at 11 minutes after 10:00,

he’d [have] gotten home at 10:45. The calls were made at 10:37 and 10:39.

Q. When you drove it the other way, did you—from Bell Federal, if you go a couple

miles south, do you get to this Route 20 going around the south side of town?

A. Yes, Bell Federal is on the corner of Newburg and Alpine. If you take Alpine

straight south to 20 and around, that would be probably the quickest route to Mr.

Beaman’s residence, and that took me 25 minutes. So once again 25 added to the 10:11

would put me there at 10:36. The calls were at 10:37 and 10:39.”

¶ 28 C. Motion in Limine

¶ 29 Before trial, the State filed a motion in limine to exclude evidence of Lockmiller’s

relationships with men other than plaintiff and Swaine. The trial court reserved ruling on the

motion. Later, the State and plaintiff’s defense counsel discussed Lockmiller’s relationship

with an individual identified as “John Doe,” who is Murray. Souk told the court Doe had

“nothing to do with the case.” Souk had not disclosed to plaintiff’s trial counsel Murray’s

criminal records, which would have exposed his drug and steroid use, the incidents of domestic

violence, or the incomplete polygraph examination. Plaintiff’s trial counsel had no specific

evidence pointing to another individual who could have committed the offense. The trial court

granted the motion in limine.

¶ 30 D. Plaintiff’s Trial and Conviction

¶ 31 At trial, evidence established plaintiff, then a student at Illinois Wesleyan University, used

Lockmiller’s alarm clock to wake for class. During the course of their relationship, plaintiff

stayed the night at Lockmiller’s up to four or five times a week.

¶ 32 Singley testified at trial. During the 1993 spring semester, Singley, on multiple occasions,

heard plaintiff pound on Lockmiller’s door late at night. He also reported hearing plaintiff and

Lockmiller yell at each other.

¶ 33 Plaintiff testified, on an unspecified night that same spring, Lockmiller called him to end

their relationship. Plaintiff went to Lockmiller’s residence to retrieve his compact disc player.

Upon arriving at the apartment, plaintiff observed “John Doe’s” car in the parking lot. Plaintiff

pounded on Lockmiller’s apartment door. Lockmiller refused to let him enter her apartment.

Plaintiff continued pounding on the door and began kicking it, causing the door to break.

Plaintiff discovered Doe and Lockmiller inside the apartment. Plaintiff grabbed his compact

disc player and left. He yelled while inside the apartment but made no physical contact with

Doe or Lockmiller.

¶ 34 Evidence established another incident during which plaintiff forcefully broke Lockmiller’s

apartment door. In the summer of 1993, Lockmiller was in a relationship with Swaine. One

night in July 1993, plaintiff suspected Swaine was at Lockmiller’s apartment. He broke the

apartment door by pounding and kicking it. Upon entering the apartment, plaintiff did not see

Swaine. Plaintiff verbally confronted Lockmiller but made no physical contact. Plaintiff

remained at the apartment for 30 to 45 minutes.

¶ 35 Plaintiff testified his night shift at his uncle’s grocery store ended at 9 a.m. on August 25.

Plaintiff drove home to retrieve some cash and a check. He drove to the bank to make a deposit.

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Plaintiff’s trip to the bank was confirmed by a bank security videotape that showed plaintiff

leaving the bank at 10:11 a.m. Plaintiff returned home and slept until 5 p.m.

¶ 36 Telephone records demonstrated two calls were made from the Beaman residence at 10:37

and 10:39 a.m. on August 25. The first call was to the plaintiff’s church, the second to the

church’s director of music and youth ministries. Only two people could have made those calls:

plaintiff and his mother, Carol Beaman. Plaintiff did not recall placing those calls but stated he

could have done so. Carol denied making the calls. She testified she left the Beaman residence

around 7 a.m. and drove to her mother’s assisted-living facility. Carol took her mother to the

clinic and returned to the facility around 10 a.m. Carol testified to having spent 15 to 20

minutes with her mother inside the facility before driving to the Walmart store across the street.

A receipt shows Carol checked out at Walmart at 11:10 a.m. after having purchased copy paper,

poster frames, blue jeans, and magazine holders. Before returning home, Carol drove to other

stores. Her last stop was a grocery store, where she purchased perishable items. She checked

out at 2:03 p.m. and headed home. Carol testified she was home by 2:16 p.m., but she had

previously told officers she arrived home around 3 p.m. When Carol arrived home, she noticed

plaintiff’s car in the driveway. Carol awoke plaintiff for dinner at approximately 6 p.m.

¶ 37 Freesmeyer testified regarding road tests he performed to test plaintiff’s opportunity to

murder Lockmiller. According to Freesmeyer, the distance between plaintiff’s bank and

Lockmiller’s apartment was 126.7 miles. Freesmeyer’s test indicated plaintiff, having left his

bank at 10:11 a.m., could have arrived at Lockmiller’s apartment before noon if plaintiff drove

10 miles per hour over the speed limit. Freesmeyer further testified 139.7 miles separated the

Beaman residence and Lockmiller’s apartment. He averred plaintiff could have made that trip

in just under two hours if he drove at a speed 10 miles per hour over the posted limit.

¶ 38 Freesmeyer performed a road test from plaintiff’s bank to the Beaman residence to see if

it was possible to make the phone call from the Beaman residence at 10:37 a.m. He testified

he drove through downtown Rockford, the “most direct route,” obeyed all speed limits, and

concluded it took 31 minutes to make the trip. Freesmeyer concluded plaintiff would have

arrived home at 10:42 a.m. Freesmeyer testified it took him 15 minutes to drive from the

Beaman residence to the Walmart where Carol shopped on August 25. On cross-examination,

Freesmeyer acknowledged plaintiff did not state he drove through downtown Rockford on

August 25. Freesmeyer also agreed the route he took was through downtown Rockford and not

on “the high speed bypass” around the city.

¶ 39 In rebuttal argument, the State argued all of the other possible suspects were excluded due

to alibis: “Did we look at Mr. Swaine? You bet we did. Did we look at [Gates]? You bet we

did. Did we look at a lot of people and interview a lot of witnesses? You bet we did. And guess

who sits in the courtroom *** with the gap in his alibi still unclosed even after all this?”

¶ 40 On April 1, 1995, the jury found plaintiff guilty of first degree murder. He was sentenced

to 50 years’ imprisonment. On direct appeal, a majority affirmed plaintiff’s conviction. People

v. Beaman, No. 4-95-0396 (1996) (unpublished order under Illinois Supreme Court Rule 23).

¶ 41 By letter dated April 17, 1995, Souk wrote to Normal Police Chief James Taylor,

commending Freesmeyer for his work on the case. The letter stated as follows:

“I would be derelict in my duties if I did not write you a separate letter concerning

Tim Freesmeyer’s performance in the Beaman case.

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Rather than elaborate on the details, I will simply tell you that Tim’s work on this

case is the single finest effort by any police officer in any case with which I have been

involved during 20 years as both a prosecutor and defense lawyer.

The effort is all the more remarkable considering his relative youth and

inexperience. His recent promotion indicates you are already aware of his exceptional

ability, but I would not be comfortable without expressing to you officially my great

admiration for Tim, both as a person and a police officer. Beyond any question in my

mind, this case would not have been won without Tim Freesmeyer.”

¶ 42 E. Proceedings on Plaintiff’s Petition for Postconviction Relief

¶ 43 In April 1997, plaintiff filed a petition for postconviction relief. Later, several amendments

were made to the petition. In its final form, plaintiff alleged, in part, the State violated his right

to due process by failing to disclose material information regarding Murray’s viability as a

suspect. An evidentiary hearing was held on plaintiff’s petition.

¶ 44 At the evidentiary hearing on plaintiff’s postconviction claims, Daniels testified he

believed Murray was and continued to be a viable suspect. Murray was Lockmiller’s former

boyfriend, and according to Murray, the two were about to rekindle their romance. Daniels

testified Murray provided Lockmiller with drugs and she owed him money. Murray lived a

short distance from Lockmiller’s apartment. Murray visited Lockmiller a few days before the

murder but found her with Swaine. Daniels further testified Murray was asked to take a

polygraph examination. The examination could not be completed because Murray was not

cooperative. Murray was asked to complete a second polygraph examination, and he agreed.

The examination, however, did not occur.

¶ 45 At the hearing, the polygraph examiner also testified. He opined the lack of cooperativeness

could have been intentional.

¶ 46 The circuit court denied plaintiff postconviction relief. This court, with Justice Cook

dissenting, affirmed the denial. People v. Beaman, 368 Ill. App. 3d 759, 772, 858 N.E.2d 78,

91 (2006).

¶ 47 In 2008, the Supreme Court of Illinois found the State violated plaintiff’s constitutional

right to due process of law when it failed to disclose the evidence related to Murray and

reversed the circuit court order denying his postconviction petition. Beaman, 229 Ill. 2d at 81-

82. The Court summarized the undisclosed evidence as consisting of four points: “(1) [Murray]

failed to complete the polygraph examination; (2) [Murray] was charged with domestic battery

and possession of marijuana with intent to deliver prior to [plaintiff’s] trial; (3) [Murray] had

physically abused his girlfriend on numerous prior occasions; and (4) [Murray’s] use of

steroids had caused him to act erratically.” Id. at 74. The court concluded the State’s case

against plaintiff “was not particularly strong” and “tenuous,” supporting the admission by

plaintiff “of the similarly probative alternative suspect evidence on” Murray. Id. at 77-78. The

court had no “confidence in the verdict finding petitioner guilty of this crime given the tenuous

nature of the circumstantial evidence against him, along with the nondisclosure of critical

evidence that would have countered the State’s argument that all other potential suspects had

been eliminated from consideration.” Id. at 81.

¶ 48 Plaintiff’s conviction was vacated and remanded. The State declined to reprosecute

plaintiff and dismissed the charges against him. Plaintiff was released from prison in June

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2008, and the State of Illinois, in April 2013, certified his innocence. Beaman v. Freesmeyer,

776 F.3d 500, 504 (7th Cir. 2015). The Governor of Illinois pardoned plaintiff “based upon

innocence as if no conviction.”

¶ 49 F. Plaintiff’s Federal Civil Suit

¶ 50 In January 2010, plaintiff filed a section 1983 complaint (42 U.S.C. § 1983 (2006)) against

defendants Freesmeyer, Warner, and Zayas, as well as against Souk, Reynard, and other

detectives. Plaintiff alleged three federal claims: defendants acting individually and in

conspiracy withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83

(1963) (individual liability), defendants conspired to deprive plaintiff of exculpatory evidence

(conspiracy liability), and defendants failed to intervene to prevent violation of his rights.

Beaman, 776 F.3d at 505. Plaintiff included state law claims for malicious prosecution, civil

conspiracy, and intentional infliction of emotional distress against the Town of Normal. Id.

¶ 51 The claims against Souk and Reynard were dismissed based on absolute immunity or

qualified immunity. Id. at 506. The claims against the other detectives, individuals who are not

named defendants in this case, were dismissed after discovery revealed those detectives were

not involved in the suppression of evidence. Id.

¶ 52 The district court granted summary judgment on the federal claims to the remaining

defendants—Freesmeyer, Warner, and Zayas—and the Seventh Circuit affirmed. The court

found insufficient evidence from which a jury could infer an agreement between the defendants

to withhold the Murray evidence. Id. at 513. The Seventh Circuit concluded “[t]he defendants

did not falsify any physical evidence or use any knowingly false testimony at trial.” Id. at 512.

As to Freesmeyer, the Seventh Circuit discounted plaintiff’s argument Freesmeyer prepared a

“deceptive” police report regarding the time trials. The court found “Freesmeyer did not lie

about the speeds at which he drove, and he was subject to cross-examination at trial about the

speeds and alternative routes.” Id. The court observed “[t]his is the type of behavior that will

be present in every criminal prosecution—valid pursuit of a conviction.” Id. The court also

found “the defendants are entitled to qualified immunity for their failure to turn over the

Murray polygraph report to the prosecution and Beaman’s defense counsel.” Id. at 510. The

court did so after framing the question as to whether inadmissible information inculpating

another suspect could be Brady material. Id. The court observed “[i]t is clear that Beaman’s

primary quarrel is with Souk. Souk possessed (most of) the Murray evidence, failed to turn it

over, and told the court and jury that there were no alternative suspects.” Id. at 513. Neither

the district court nor the Seventh Circuit addressed the state-law claims of malicious

prosecution, intentional infliction of emotional distress, or conspiracy against the Town of

Normal for lack of jurisdiction. Id. at 506.

¶ 53 G. Plaintiff’s State Civil Lawsuit

¶ 54 In April 2014, plaintiff filed this action against defendants Freesmeyer, Warner, Zayas, and

the Town of Normal. The complaint contains five claims: (1) malicious prosecution,

(2) intentional infliction of emotional distress, (3) civil conspiracy, (4) respondeat superior,

and (5) indemnification. In his complaint, plaintiff asserted the three individual defendants

played significant roles in his prosecution and wrongful conviction.

¶ 55 Plaintiff asserted Freesmeyer “advocated for, approved, and physically effected” his arrest.

Plaintiff alleged Freesmeyer moved into an office in the state’s attorney’s office to work full-

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time on plaintiff’s case and decided, on the first day of the investigation, plaintiff was “the

primary suspect.” Freesmeyer did so, according to plaintiff, even though the crime scene

suggested the murderer was “a perpetrator of considerable size and power,” while “plaintiff

was thin and small,” and Lockmiller’s drug use and “behavior” pointed to a number of other

possible suspects and “unsavory characters.” Plaintiff identified Murray as the most significant

suspect in that he was a drug dealer and Lockmiller’s “sex partner” who used steroids and

cocaine, beat women, and lied about his alibi.

¶ 56 Other evidence plaintiff pointed to includes allegations Freesmeyer had a “continued

fixation on plaintiff despite [a] lack of evidence.” Plaintiff argued the evidence showed

Freesmeyer, and other detectives, did not investigate area burglaries or sexual assaults, did not

interview individuals with whom Lockmiller had been in contact before her murder, and failed

to listen to other detectives “who questioned their singular fixation.” Plaintiff maintained

Freesmeyer doctored the time trials to secure plaintiff’s conviction, thereby “creat[ing]

evidence” plaintiff did not make the calls from the Beaman residence by driving within the

speed limit and using the downtown route and not the bypass route favored by Rockford locals.

Freesmeyer further avoided telling the jury about his testing the bypass route and finding, had

plaintiff used the bypass route, he could have made those calls. In contrast, when attempting

to establish plaintiff could have made the trip to Normal, Freesmeyer drove over the speed

limit. Plaintiff highlighted evidence Freesmeyer threatened the death penalty during an

interview of plaintiff and Freesmeyer’s repeated efforts to secretly tape inculpatory statements

from him.

¶ 57 As to Warner, plaintiff alleged he was liable to plaintiff for damages as a result of burying

a report regarding Murray’s polygraph. The report of the incomplete polygraph was addressed

to Warner. Warner averred he gave the report to Daniels, but Daniels had no memory of

receiving it. The state’s attorney’s office did not receive a copy. According to the report,

Murray denied strangling Lockmiller and denied knowing who did. The report, however, was

inconclusive given Murray’s failure to comply with specific directions:

“Throughout the course of this polygraph examination, the subject did not follow

specific directions given to him which are necessary for the proper completion of a

polygraph examination. After being advised several times to follow directions, the

subject informed this examiner that he was not able to comply. Subsequently, the

subject was dismissed from this laboratory.”

¶ 58 Defendants moved for summary judgment on plaintiff’s claims. Defendants maintained

there was no evidence establishing a genuine issue of material fact on four of the five elements

of his malicious-prosecution claim. Defendants contended, as a result, they were entitled to

judgment on the malicious-prosecution claim and the remaining claims, which plaintiff

predicated on the contention he was maliciously prosecuted.

¶ 59 H. Summary Judgment Order

¶ 60 In June 2016, the trial court granted defendants’ motion for summary judgment. After

listing the elements for the claim of malicious prosecution, the court found the prosecutors who

handled the case, not the defendant officers, decided to prosecute plaintiff. In support, the court

highlighted Daniels’s deposition testimony. The court pointed to Daniels’s statement that,

during the May 1994 meeting with investigating officers and lead prosecutors, Souk rejected

Daniels’s suggestions to investigate other avenues. Souk expressed the investigation was

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complete and an arrest warrant would be issued for plaintiff. The court explicitly found

defendants “did not exert any unusual influence on the prosecutors which caused a malicious

prosecution to take place against plaintiff.”

¶ 61 The trial court further found no genuine issue of material fact as to the remaining malicious-

prosecution elements and to plaintiff’s claims of intentional infliction of emotional distress,

conspiracy, respondeat superior, and indemnification.

¶ 62 I. Plaintiff’s Appeal of the Summary Judgment Order

¶ 63 Plaintiff appealed the order. In his appeal, plaintiff challenged the trial court’s order,

maintaining the evidence showed a genuine issue of material fact to each of the elements of

malicious prosecution. Plaintiff argued all of his claims were improperly dismissed.

¶ 64 In our opinion, we affirmed the order for summary judgment. We began our analysis by

setting forth the elements of a malicious-prosecution claim in Illinois:

“Under Illinois law, a claim of malicious prosecution requires proof of each of the

following elements: ‘(1) the commencement or continuance of an original criminal or

civil judicial proceeding by the defendant[s]; (2) the termination of the proceeding in

favor of the plaintiff; (3) the absence of probable cause for such proceeding; (4) the

presence of malice; and (5) damages resulting to the plaintiff.’ ” Beaman v.

Freesmeyer, 2017 IL App (4th) 160527, ¶ 49 (quoting Swick v. Liautaud, 169 Ill. 2d

504, 512, 662 N.E.2d 1238, 1242 (1996)).

¶ 65 We then considered whether, in viewing the evidence in the light most favorable to

plaintiff, defendants showed no genuine issue of material fact on the first element of that

offense: “ ‘the commencement or continuance of an original criminal or civil judicial

proceeding by the defendant[s].’ ” Id. ¶ 50 (quoting Swick, 169 Ill. 2d at 512). On that issue,

plaintiff, in a little over four pages, asserted he sufficiently established the element by simply

showing the defendants had “significant involvement” in the commencement or continuance

of his prosecution. Plaintiff did not mention proximate cause, only asserting (1) the conviction

would not have occurred but for the conduct of the defendant officers and (2) the officers, one

of whom worked out of the office of the State’s Attorney, had significant roles in the

prosecution. We questioned the approach of limiting consideration of the commencement

element to only the significance of one’s role in instituting the prosecution. Id. ¶ 54.

¶ 66 Turning to defendants’ brief for guidance, we found defendants argued proof of the element

required a causal link, like undue influence, on the prosecutor’s decision to commence suit.

We disagreed the question should be limited to only instances of “undue influence.” Id. ¶ 55.

Instead, to resolve the question of whether the commenced-or-continued element was

sufficiently satisfied, we relied upon a recent decision by the Seventh Circuit Court of Appeals,

Colbert v. City of Chicago, 851 F.3d 649 (7th Cir. 2017), which held the chain of causation in

a malicious-prosecution action will be broken by a prosecutor’s indictment absent “ ‘ “an

allegation of pressure or influence exerted by the police officers, or knowing misstatements by

the officers to the prosecutor.” ’ ” Beaman, 2017 IL App (4th) 160527, ¶ 57 (quoting Colbert,

851 F.3d at 655, quoting Reed v. City of Chicago, 77 F.3d 1049, 1053 (7th Cir. 1996)). We

analyzed the evidence presented and concluded no genuine issue of material fact existed on

this element, as there was no evidence showing the defendants pressured or influenced Souk’s

decision to prosecute plaintiff and no evidence of knowing misstatements by the defendants to

Souk. Id. ¶¶ 65, 69, 72. We, therefore, concluded the chain of causation was broken. We

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affirmed the trial court’s order. Id. ¶ 80. Plaintiff appealed.

¶ 67 J. Illinois Supreme Court’s Reversal

¶ 68 Before the Supreme Court of Illinois, the parties more fully addressed the issue of the

proper considerations of the commencement-or-continuance element of malicious prosecution.

In addition to the parties’ briefs, the court allowed the filing of multiple amici briefs by former

state and federal prosecutors, police unions, and cities (Peoria and Chicago).

¶ 69 The court summarized three approaches in Illinois case law for analysis of this element:

“significant role”; “advice and cooperation”; and “pressure, influence, or misstatement” tests.

See Beaman, 2019 IL 122654, ¶¶ 29-31. The court agreed with defendants that all steps require

proof of causation and concluded “the relevant inquiry is whether the officer proximately

caused the commencement or continuance of the criminal proceeding.” Id. ¶ 33. The court then

articulated the “significant role” assessment should be used to ascertain proximate cause and

defined it as follows:

“This significant role assessment necessarily includes those persons whose

participation in the criminal case was so ‘active and positive’ to ‘amount to advice and

co-operation’ [(Gilbert v. Emmons, 42 Ill. 143, 147 (1866))] or those persons who

‘improperly exerted pressure on the prosecutor, knowingly provided misinformation to

him or her, concealed exculpatory evidence, or otherwise engaged in wrongful or bad-

faith conduct instrumental in the initiation of the prosecution (52 Am. Jur. 2d Malicious

Prosecution § 88 (2018)).” Id. ¶ 45.

¶ 70 The supreme court remanded this case, ordering this court to “examine whether the

defendants’ conduct or actions proximately caused the commencement or continuance of the

original criminal proceeding by determining whether defendants played a significant role in

[plaintiff’s] prosecution.” Id. ¶ 47.

¶ 71 II. ANALYSIS

¶ 72 A. Summary Judgment Standards

¶ 73 When considering a motion for summary judgment, the court’s role is to ascertain whether

a genuine issue of material fact exists and not to resolve factual questions. Williams v.

Manchester, 228 Ill. 2d 404, 417, 888 N.E.2d 1, 8 (2008). A court should grant such a motion

only when the depositions, pleadings, affidavits, and admissions, viewed in the light most

favorable to the nonmovant, show both no genuine issue of material fact and the movant is, as

a matter of law, entitled to judgment. Pontiac National Bank v. Vales, 2013 IL App (4th)

111088, ¶ 29, 993 N.E.2d 463 (citing 735 ILCS 5/2-1005(c) (West 2008)). Because summary

judgment is a drastic means to resolve a case, a trial court should grant summary judgment

only when the moving party’s right to judgment is clear and free from doubt. Vales, 2013 IL

App (4th) 111088, ¶ 29. When reasonable persons can “ ‘draw divergent inferences from the

undisputed material facts or where there is a dispute as to a material fact, summary judgment

should be denied and the issue decided by the trier of fact.’ ” Beaman, 2019 IL 122654, ¶ 22

(quoting Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 114, 649 N.E.2d 1323,

1326 (1995)). On appeal, we review summary judgment orders de novo. Rettig v. Heiser, 2013

IL App (4th) 120985, ¶ 30, 996 N.E.2d 1220.

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¶ 74 B. Malicious Prosecution

¶ 75 As stated above, to establish a claim of malicious prosecution, a plaintiff must prove each

of the following elements: “(1) the commencement or continuance of an original criminal or

civil judicial proceeding by the defendant[s]; (2) the termination of the proceeding in favor of

the plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of malice;

and (5) damages resulting to the plaintiff.” Swick, 169 Ill. 2d at 512. The failure to prove one

element prevents recovery on the claim. Id.

¶ 76 1. Probable Cause

¶ 77 The existence of probable cause is a complete defense to a claim of malicious prosecution,

no matter the motive prompting the arrest. Ely v. National Super Markets, Inc., 149 Ill. App.

3d 752, 758, 500 N.E.2d 120, 125 (1986). Probable cause, for purposes of an action for

malicious prosecution, is defined as a state of facts, in the prosecutor’s mind, that would lead

a person of ordinary caution and prudence to believe or entertain an honest and strong suspicion

the person arrested is guilty of the offense for which he was arrested. Frye v. O’Neill, 166 Ill.

App. 3d 963, 975, 520 N.E.2d 1233, 1241 (1988); see also Fabiano v. City of Palos Hills, 336

Ill. App. 3d 635, 642, 784 N.E.2d 258, 266 (2002) (“Probable cause is a state of facts that

would lead a person of ordinary care and prudence to believe or to entertain an honest and

sound suspicion that the accused committed the offense charged.”). “Whether the relevant

facts, viewed in the light most favorable to the plaintiff, constitute probable cause for

instituting a criminal prosecution is a question of law which the court must determine.” Frye,

166 Ill. App. 3d at 976; see also Poris v. Lake Holiday Property Owners Ass’n, 2013 IL

113907, ¶ 63, 983 N.E.2d 993 (noting “the existence of probable cause is a question of law and

only becomes a question of fact if the operative facts are in dispute”). In assessing whether

probable cause exists, we examine the totality of the circumstances at the time of the arrest.

Gauger v. Hendle, 2011 IL App (2d) 100316, ¶ 112, 954 N.E.2d 307, 329.

¶ 78 Defendants contend the existence of probable cause for plaintiff’s arrest is another

meritorious basis to affirm the award of summary judgment. Defendants argue the totality of

the circumstances shows no genuine issue of material fact as to the existence of probable cause.

Defendants point to plaintiff and Lockmiller’s tumultuous relationship, which included

outbursts overheard by neighbors; Lockmiller’s expressed fear of plaintiff; plaintiff’s love

letters and threats of suicide; plaintiff’s behavior in following Swaine and kicking down

Lockmiller’s door; the existence of two of plaintiff’s fingerprints on the murder weapon; a

plastic garbage bag lying on the couch in the living room, a circumstance reminiscent of the

time plaintiff searched the trash for used condoms; the lack of signs of a forced entry; the fact

Lockmiller began a relationship with Swaine, plaintiff’s roommate; and the timeline, albeit

narrow, indicating plaintiff had time to murder Lockmiller and return to Rockford.

¶ 79 Plaintiff concedes the parties “agree on some of the facts” but contends the proper

inferences to be drawn from those facts must be viewed in the light most favorable to the

nonmovant. We note plaintiff does not dispute defendants’ assertion of facts from plaintiff’s

mother’s testimony, testimony that narrowed the window of the time when he could have

committed the crime, were not known until after the case was turned over to prosecutors.

¶ 80 Plaintiff argues, however, a reasonable juror could find probable cause wanting based on

the divergent inferences that could be drawn from them. Plaintiff lists the following reasons in

support: (1) no probative physical evidence against plaintiff exists; (2) no one could place

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plaintiff in town when the murder occurred; (3) plaintiff maintained his innocence during the

investigation, which included “overhears”; (4) any number of men could have committed the

crime; (5) Singley’s statement indicates the murder occurred after 2 p.m., eliminating any

possibility plaintiff murdered Lockmiller; (6) plaintiff was in Rockford, 130 miles from

Bloomington, at 10:11 a.m. on the morning of the murder; (7) the crime scene indicated the

killer was a stranger, as the trash bag having been pulled from the trash can indicates a burglar

and a larger and more powerful man; (8) the evidence against Murray was stronger, as Murray

lived near Lockmiller, had a history of domestic violence, and was a drug dealer to whom

Lockmiller owed money; (9) the fingerprint evidence was weak, as plaintiff had stayed

overnight at Lockmiller’s apartment regularly when they were dating and he used the alarm

clock; (10) the love letters were old, and plaintiff ended the relationship; (11) plaintiff did not

return the many phone calls Lockmiller made to him before the murder; (12) the timeline was

literally impossible; (13) the incidents of violence, e.g., kicking down the door and punching

walls, were not inflicted on people; (14) the evidence of the fan on Lockmiller’s head was

indicative of a burglary; and (15) the use of scissors for the murder indicates the killer did not

know Lockmiller.

¶ 81 We acknowledge plaintiff has an explanation for each fact, but our review of probable

cause focuses not on individual facts but on the totality of the circumstances. Viewing the

totality of the circumstances, and doing so in the light most favorable to plaintiff, we find no

genuine issue of material fact on the existence of probable cause. The facts are such that, in

the prosecutor’s mind, a person of ordinary caution and prudence would be led to believe or

entertain an honest and strong suspicion plaintiff was guilty. Summary judgment for

defendants was proper.

¶ 82 In addition to this analysis of the points raised by plaintiff, we also conclude plaintiff could

never successfully meet his burden of showing probable cause did not exist. The trial court

denied plaintiff’s motion for a directed verdict at his trial for first degree murder. The jury

convicted him. This court affirmed plaintiff’s conviction and rejected his claim the State’s

evidence was not sufficient to support his conviction. No court, in the multiple reviews of his

convictions, has ever deemed the evidence against him insufficient to sustain his conviction—

quite the opposite.

¶ 83 In Beaman, 229 Ill. 2d at 56, the supreme court reversed plaintiff’s conviction on the sole

ground he was entitled to a new trial due to a Brady violation but added:

“As a final matter, we note that on direct appeal the appellate court held the

evidence was sufficient to convict petitioner of this offense. Petitioner does not raise

any claim based on the sufficiency of the evidence in this court. Accordingly, there is

no double jeopardy impediment to a new trial.” Id. at 82.

¶ 84 2. Commencement or Continuance Element

¶ 85 To be sure we have fully complied with the remand from the supreme court, we choose to

address plaintiff’s additional arguments despite our conclusion plaintiff cannot show an

absence of probable cause. Our interpretation of the court’s decision in Beaman is that, to

ascertain whether the defendants commenced or continued an original criminal or judicial

proceeding against plaintiff, we must consider whether the role of defendants was significant.

The court states persons whose roles are significant include those

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“whose participation in the criminal case was so active and positive to amount to advice

and co-operation [citation] or those persons who improperly exerted pressure on the

prosecutor, knowingly provided misinformation to him or her, concealed exculpatory

evidence, or otherwise engaged in wrongful or bad-faith conduct instrumental in the

initiation of the prosecution.” (Internal quotation marks omitted.) Beaman, 2019 IL

122654, ¶ 45.

¶ 86 The parties dispute the manner by which these considerations must be undertaken.

Defendants contend that, however one characterizes the officers’ conduct, a plaintiff must

overcome the presumption of the prosecutor’s independent judgment before one can establish

a person proximately caused malicious prosecution. In support, defendants quote the court’s

language directly preceding the paragraph in which the court set forth the significant-role

assessment:

“ ‘Liability thus depends on whether the defendant was actively instrumental in

causing the prosecution, and the presumption of prosecutorial independence can be

overcome by showing that the defendant improperly exerted pressure on the prosecutor,

knowingly provided misinformation to him or her, concealed exculpatory evidence, or

otherwise engaged in wrongful or bad-faith conduct instrumental in the initiation of the

prosecution.’ ” Id. ¶ 44 (quoting 52 Am. Jur. 2d Malicious Prosecution § 88 (2018)).

¶ 87 Plaintiff contends such an interpretation of Beaman would, in effect, be an improper

attempt by this court to reverse the supreme court’s decision. Plaintiff contends the supreme

court rejected the conclusion the prosecutor’s decision could insulate defendants when it

reversed our decision to affirm summary judgment upon finding a plaintiff may establish the

commencement-and-continuance element by showing the officer pressured or exerted

influence on the prosecutor’s decision or made knowing misstatements to the prosecutor.

Relying on that holding, plaintiff argues all he must show is a rational juror could find the

police officers “ ‘concealed exculpatory evidence, or otherwise engaged in wrongful or bad-

faith conduct instrumental in the initiation of the prosecution.’ ” Id. ¶ 45 (quoting 52 Am. Jur.

2d Malicious Prosecution § 88 (2018)). Plaintiff then maintains “significant role,” and thus

proximate cause, is satisfied with proof of bad-faith conduct or concealed exculpatory

evidence.

¶ 88 We do not agree with plaintiff that to accept defendant’s contentions regarding

prosecutorial independence would be an attempt by this court to reverse the holding of

Beaman. The supreme court’s holding in Beaman is that our review of defendants’ conduct

was too narrow, finding error in the decision to focus on whether the officers pressured or

unduly influenced the prosecutor or whether the officers made false representations. The

supreme court held the standard employed failed to acknowledge a person may be liable for

malicious prosecution even if that person did not “actively deceive prosecutors.” Id. ¶ 43. The

Beaman court did not hold this court erred by examining whether the officers’ conduct

proximately caused the decision to prosecute plaintiff.

¶ 89 Our review of Beaman establishes proximate cause is not established absent proof of

conduct that overcomes the presumption of prosecutorial independence. It is not enough for a

plaintiff seeking relief for malicious prosecution to establish an officer acted in bad faith or

performed a wrongful act. That plaintiff must still establish legal causation. Beaman says as

much. As we stated above, Beaman defines when a person falls within the “significant role”

standard:

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“This significant[-]role assessment necessarily includes those persons whose

participation in the criminal case was so active and positive to amount to advice and

co-operation [citation] or those persons who improperly exerted pressure on the

prosecutor, knowingly provided misinformation to him or her, concealed exculpatory

evidence, or otherwise engaged in wrongful or bad-faith conduct instrumental in the

initiation of the prosecution (52 Am. Jur. 2d Malicious Prosecution § 88 (2018)).”

(Internal quotation marks omitted.) Id. ¶ 45.

In the paragraph directly preceding this pronouncement, the court cites the same section of

Malicious Prosecution and states the following:

“ ‘Liability thus depends on whether the defendant was actively instrumental in

causing the prosecution, and the presumption of prosecutorial independence can be

overcome by showing that the defendant improperly exerted pressure on the prosecutor,

knowingly provided misinformation to him or her, concealed exculpatory evidence, or

otherwise engaged in wrongful or bad-faith conduct instrumental in the initiation of the

prosecution.’ 52 Am. Jur. 2d Malicious Prosecution § 88 (2018).” Id. ¶ 44.

¶ 90 Because the supreme court used the same language from the same source it cited a

paragraph earlier, it is clear the supreme court plainly intended proximate cause cannot be

established absent proof the wrongful or bad-faith conduct overcame prosecutorial

independence. A prosecutor’s decision to commence or continue suit breaks the causal chain,

absent some conduct, as defined in the significant-role assessment, on behalf of an officer.

¶ 91 Plaintiff next argues a reasonable juror could find defendants played a significant role in

the commencement or continuation of his prosecution, as the participation in the criminal case

was so “active and positive” to amount to advice and cooperation. Plaintiff emphasizes that, in

the meeting in which all of the defendants reached a “consensus” with Reynard and Souk, no

doubt was expressed in arresting plaintiff, and no one objected to the arrest. Plaintiff further

points to the multiple occasions, which “could have” been as many as 50, during which Souk

and Freesmeyer discussed the investigation.

¶ 92 This test is cited by the Beaman court as part of the significant-role, proximate-cause

assessment. The source of the advice-and-cooperation test is an 1866 case, Gilbert v. Emmons,

42 Ill. 143 (1866), involving private citizens. In Gilbert, the plaintiff sued defendants Palmer

and Gilbert, who were partners in a firm from which money had been stolen. Id. at 146. The

warrant that was issued was made by Palmer. Id. The court reasoned Gilbert would be equally

responsible as Palmer if he advised the arrest—if he directly participated in causing the arrest

or advised the arrest be made. Id. Gilbert’s consent to the arrest was insufficient unless it was

“so active and positive a character as to amount to advice and co-operation.” Id. at 147.

¶ 93 We find consideration of the test espoused in Gilbert does not establish the officers

proximately caused plaintiff’s prosecution. As plaintiff asserts in his reply brief filed in the

supreme court, Gilbert “has never applied the test to a police officer (or to any defendant since

Gilbert).” For good reason, as the Beaman court recognizes “prosecutors ordinarily rely on

police and other agencies to investigate criminal acts.” Beaman, 2019 IL 122654, ¶ 43 (citing

People v. Ringland, 2017 IL 119484, ¶ 24, 89 N.E.3d 735 (also observing state’s attorneys

defer to the investigative duties of the police)). Unlike in relationships between private citizens

and prosecutors and private citizens and police (e.g., Gilbert), the relationship between police

and prosecutors on investigative matters routinely involves “advice and cooperation.” It would

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be contrary to public policy and incongruous to ask officers and prosecutors to cooperate and

work together and yet take officers to trial for doing just that.

¶ 94 We turn to the remaining assessments to ascertain whether a reasonable juror could find

defendants, individually, “improperly exerted pressure on the prosecutor, knowingly provided

misinformation to him or her, concealed exculpatory evidence, or otherwise engaged in

wrongful or bad-faith conduct instrumental in the initiation of the prosecution” and whether

such conduct is the proximate cause of the commencement or continuation of plaintiff’s

prosecution.

¶ 95 a. Defendant Freesmeyer

¶ 96 In asserting sufficient evidence exists for a jury question on the “commenced or continued”

element in his claim against Freesmeyer, plaintiff contends Freesmeyer targeted plaintiff since

“Day One,” led a biased investigation, lied to the grand jury, doctored time trials, omitted

exculpatory evidence from his police reports, threatened plaintiff with the death penalty,

moved into the prosecutor’s office, and gave misleading trial testimony. Plaintiff contends

these actions by Freesmeyer could lead a reasonable juror to find Freesmeyer commenced or

continued his prosecution.

¶ 97 We further disagree with plaintiff’s statement a reasonable juror could find Freesmeyer

lied to the grand jury about his interview with Singley. Plaintiff contends Freesmeyer, ignoring

Singley’s statements, told the grand jury no helpful information had been learned from

Lockmiller’s neighbors during the investigation when Singley’s interview helped rule out

plaintiff as a suspect. Freesmeyer’s statement is a conclusion he did not find the information

helpful:

“Q. Without going into individual details, were the other residents of the apartment

building shortly after the discovery of the body, in the next few days, questioned

extensively?

A. Yes. ***

Q. Would it be a fair summary of those interviews that all of them produced no

eyewitnesses to the crime and no information that turned out [to] be particularly helpful

in the investigation?

A. That’s correct.”

Testimony from plaintiff’s trial shows Freesmeyer identified a reason he “discount[ed]

Singley’s observations as being inaccurate:

“Well, first of all, nobody could pick out Mr. Swaine’s vehicle from the photos we

showed them. Second of all, Mr. Singley stated he heard the door, the same door open

and close on Friday as he did on Wednesday, and everybody on the team was in

agreement that Ms. Lockmiller was deceased long before Friday. And also he stated he

saw Swaine’s vehicle there on Wednesday, and I’d already spoken with Ms. Betteridge

from Elmhurst. She stated that Mr. Swaine was at her side until 3:15 that day. There

was absolutely no way that that car could have been in Normal on Wednesday.”

¶ 98 First, despite the repeated references to a “biased investigation” in plaintiff’s appellant brief

and the former prosecutors’ amicus brief, no language in the supreme court’s Beaman decision

supports the expansion of the malicious-prosecution torts to acts of “bias.” As the Beaman

court acknowledged, because public policy favors the exposure of crime, malicious-

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prosecution actions are disfavored. Beaman, 2019 IL 122654, ¶ 24. To expand the tort to allow

actions against “biased” private citizens and police officers would contravene the

aforementioned public policy. We will not expand the tort to include “bias.”

¶ 99 We note “bias” does not equate to “bad faith” conduct. Bias is defined as “an inclination

of temperament or outlook” and “a personal and sometimes unreasoned judgment.” Merriam-

Webster Online Dictionary, https://www.merriam-webster.com/dictionary/bias (last visited

Dec. 9, 2019) [https://perma.cc/Q6JX-9E9L]. Black’s Law Dictionary defines “bad faith” as

follows:

“The opposite of ‘good faith,’ generally implying or involving actual or constructive

fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some

duty or some contractual obligation, not prompted by an honest mistake as to one’s

rights or duties, but by some interested or sinister motive. Term ‘bad faith’ is not simply

bad judgment or negligence but rather it implies the conscious doing of a wrong

because of dishonest purpose or moral obliquity; it is different from the negative idea

of negligence in that it contemplates a state of mind affirmatively operating with furtive

design or ill will.” Black’s Law Dictionary 139 (6th ed. 1990).

Bias will be actionable only if it culminates into conduct, such as bad-faith conduct, that

satisfies the elements of a malicious-prosecution claim.

¶ 100 Turning to the assessments set forth in Beaman, we find there are no facts from which a

reasonable juror could infer Freesmeyer pressured or exerted influence on Souk’s decision to

prosecute plaintiff. The evidence shows Souk believed plaintiff was the “only” or primary

suspect within one day of the discovery of decedent’s body. The evidence shows the

prosecutors, Reynard and Souk, made the decision to prosecute plaintiff. No witness testimony

contradicts this conclusion. As the trial court concluded, testimony of Daniels shows Souk,

during the May 1994 meeting, refused to consider additional evidence and decided it was time

to prosecute plaintiff. Plaintiff contends it was error to focus on Daniels’s statement. Plaintiff

points to Freesmeyer’s deposition testimony in which he did not recall anyone expressing

doubt in arresting plaintiff and contends, taking the evidence in the light most favorable to

plaintiff, we must accept Freesmeyer’s account. Even accepting Freesmeyer’s account on

whether Daniels objected to the arrest of plaintiff or not, no evidence suggests anyone other

than the prosecutor made the decision to prosecute plaintiff and then did so.

¶ 101 We turn to the question of whether a reasonable juror could find Freesmeyer provided false

information to Souk or Reynard to influence the commencement or continuation of plaintiff’s

prosecution. Plaintiff identifies two types of evidence that were allegedly fabricated: the time

trials and Freesmeyer’s testimony before the grand jury. This evidence, however, does not

support plaintiff’s conclusion the element is satisfied. Initially, there is no proof in the record

Freesmeyer tainted or falsely reported the time trials. Indeed, the Seventh Circuit examined

similar allegations against Freesmeyer and found “Freesmeyer did not lie ***.” Beaman, 776

F.3d at 512. Similar to the Seventh Circuit’s findings, we find Freesmeyer’s efforts were to

show plaintiff’s conduct could have fit within the State’s theory of the case. “This is the type

of behavior that will be present in every criminal prosecution—valid pursuit of a conviction.”

Id.

¶ 102 On remand, plaintiff contends our conclusion regarding Freesmeyer’s time-trial testimony

is incorrect, as it ignores the fact Freesmeyer did not disclose in his reports the fact he

performed a time trial that had a result favorable to plaintiff. Specifically, plaintiff emphasizes

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the results from all but one test appear in his reports, implying Freesmeyer concealed the result

that would have shown plaintiff had time to leave Bell Federal, use the bypass route around

Rockford, and be home in time to make the 10:37 a.m. and 10:39 a.m. calls.

¶ 103 There is good reason this court did not address this nondisclosure in Freesmeyer’s

reports—plaintiff did not raise this argument in the commencement-or-continuation argument

section in his initial brief before this court. Plaintiff, in one sentence in his original statement

of facts, reported “Freesmeyer proceeded to omit mention of that trial from his police report

and avoided telling the jury that fact during his testimony at trial.” However, no reasonable

juror could find this nondisclosure is the proximate cause of the commencement or

continuation of plaintiff’s prosecution. The undisputed facts, and any reasonable inference

therefrom, show the presumption of prosecutorial independence (Beaman, 2019 IL 122654,

¶ 44) cannot be overcome by this conduct. Souk, who made the decision to prosecute, knew

this fact. Freesmeyer disclosed it before the grand jury after Souk questioned him about the

bypass route:

“Q. Now did you also on two occasions do the same kind of timing from Bell

Federal to the Beaman residence?