Terrance Thompson v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-2951 & 11-2883
T ERRANCE T HOMPSON,
Plaintiff-Appellant,
v.
C ITY OF C HICAGO, et al.,
Defendants-Appellees.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 1130—Ronald A. Guzmán, Judge.
A RGUED JANUARY 19, 2012—D ECIDED JULY 10, 2013
Before K ANNE, S YKES, and H AMILTON, Circuit Judges.
S YKES, Circuit Judge. Terrance Thompson was convicted
of a state gun crime based entirely on the testimony of
officers from the Chicago Police Department’s Special
Operations Section (“SOS”). He maintained that they
fabricated the case against him by planting a gun in the
vicinity of his stop and arrest. While he was serving his
sentence, the Cook County State’s Attorney uncovered
widespread corruption in the SOS, implicating the officers
2 Nos. 10-2951 & 11-2883
who testified against him. Thompson moved to vacate
his conviction and dismiss the case. The State’s Attorney
agreed to this relief because the officers were not credi-
ble. After more than three years in prison, Thompson was
released.
Thompson sued the arresting officers for violating
his due-process rights under Brady by deliberately with-
holding impeachment evidence, conspiring to violate the
Brady disclosure duty, and failing to intervene to halt
an ongoing Brady violation.1 He also asserted a Monell
claim against the City of Chicago.2 The trial presented
many complications. During discovery, the individual
defendants invoked their Fifth Amendment privilege
against self-incrimination, as did other SOS officers who
otherwise would have been called as witnesses. To prove
his case, Thompson had to rely on his own testimony and
the adverse inference from the officers’ assertion of the
Fifth Amendment. He also wanted to present testimony
from other victims of SOS misconduct and the guilty-plea
testimony of the SOS officers who were convicted in
the corruption investigation. This evidence was important
to proving the Brady claims—it would help establish
that the defendants deliberately withheld critical im-
peachment evidence of a pattern of malfeasance within
the SOS—but the district court excluded much of it.
The jury found just one of the officers liable, and only
on the Brady claim; it found in favor of all defendants
1
See Brady v. Maryland, 373 U.S. 83 (1963).
2
See Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
Nos. 10-2951 & 11-2883 3
on the remaining claims. As damages for Thompson’s
injury—more than three years of wrongful imprisonment—
the jury awarded $15,000. Thompson appeals, challenging
the evidentiary rulings noted above and also certain
trial tactics by defense counsel that he claims were im-
proper and prejudiced his case.3
We agree with Thompson’s multiple claims of error.
Although none are prejudicial standing alone, their
cumulative effect had a substantial and injurious effect
on the verdict. We reverse and remand for a new trial
on the claims Thompson lost and also on damages.
I. Background
On September 21, 2002, Thompson was in the area
of West Ohio Street and North St. Louis Avenue in
Chicago looking to buy drugs. At that time he was a
heroin addict. He and several other men were standing
on the corner when SOS Officers Carl Suchocki, Tim
McDermott, and John Burzinski pulled up in their patrol
car. As the police approached, the men on the corner
scattered, but Thompson was detained and questioned
by the officers, who wanted to know the location of
3
Thompson filed two separate appeals, one from the district
court’s order denying his motion for a new trial and entering
judgment on the verdict (No. 10-2951) and the other from
the court’s order granting his request for attorney’s fees but
substantially reducing the award to reflect his limited
recovery (No. 11-2883). We have consolidated the appeals.
4 Nos. 10-2951 & 11-2883
the drug house and where the drug dealers had gone.
While this questioning was underway, Officer Suchocki
searched the surrounding area, disappearing for a few
minutes down a gangway. He returned with a gun in
his hand, saying “look what I got here,” and placed
Thompson under arrest for unlawfully possessing the
firearm. Questioning continued at the police station; the
officers demanded that Thompson give them the loca-
tion of the drug house. He said he didn’t know. At some
point during the interrogation, SOS Officers Jerome
Finnegan and Bret Rice were also present; they were
listed as “victims” on the case report. Thompson was
eventually charged with aggravated unlawful use of a
weapon. See 720 ILL. C OMP. S TAT. 5/24-1.6.
The case went to trial in October 2003. The prosecution
relied entirely on the testimony of Officers Suchocki and
McDermott. According to the Illinois Appellate Court’s
description of the trial, Suchocki and McDermott testi-
fied that on the afternoon of September 21, 2002, they
were on patrol with a third officer, Burzinski, in the
3500 block of West Ohio Street. See People v. Pearson, 826
N.E.2d 1099, 1102 (Ill. App. Ct. 2005). They saw a number
of people loitering on the corner, and as the officers
approached, several individuals started pointing to
Thompson and shouting that he had a gun. The officers
testified that they saw Thompson grab a gun from his
waistband and start to run away. They said they jumped
out of their car, ran after Thompson, and saw him toss
the gun over a fence during the foot chase. McDermott
retrieved the gun while Suchocki caught up with Thomp-
son and arrested him. Id.Nos. 10-2951 & 11-2883 5
On the strength of the officers’ testimony, Thompson
was convicted and sentenced to eight years in prison. On
direct appeal the Illinois Appellate Court found a jury-
selection error and reversed and remanded for a new
trial. See id. at 1106-09. The Illinois Supreme Court
granted leave to appeal. See People v. Pearson, 839 N.E.2d
1033 (Ill. 2005). Thompson remained in prison pending
the state high court’s review of his case.
In the meantime, in the fall of 2006, about three years
into his prison term, Thompson saw a news story about
the arrest and indictment of officers in the SOS unit on
charges of corruption and other abuses of power. The
Cook County State’s Attorney had uncovered a long-
standing pattern of misconduct within the SOS and
was investigating several officers, including Suchocki.
Thompson recognized him as one of the officers
involved in his arrest who testified against him at trial.
Thompson immediately filed a petition to set aside
his conviction, see I LL. C OMP. S TAT. 5/2-1401, arguing that
this newly discovered evidence fatally undermined the
credibility of the officers who testified against him. The
petition questioned the integrity of Suchocki’s police
work dating back to 2002. The state prosecutor did not
oppose the petition. The State’s Attorney’s Office had
adopted a policy of dismissing any cases in which
Suchocki and the other SOS officers implicated in the
investigation had made an arrest or played a significant
role. Assistant State’s Attorney (“ASA”) Kurt Smitko
appeared in court and did not contest the substance of
Thompson’s section 1401 petition. ASA Smitko conceded
6 Nos. 10-2951 & 11-2883
that he could not carry his burden of proof because the
officers who testified against Thompson were not credi-
ble. In a handwritten order dated December 5, 2006, a Cook
County judge vacated Thompson’s conviction, dismissed
the case, and ordered Thompson released assuming no
other holds. On January 9, 2007, the Illinois Supreme Court
dismissed as moot its earlier order granting leave to appeal
and directed the Illinois Appellate Court to vacate its
decision. See People v. Pearson, 892 N.E.2d 993 (Ill. 2007).
Thompson was released after serving more than three
years in prison.
Thompson then brought this suit under 42 U.S.C. § 1983against the City of Chicago and Officers Suchocki,
McDermott, and Burzinski. The initial complaint alleged
a series of due-process claims based on Brady, including
failure to disclose impeachment evidence in violation of
the basic Brady duty, conspiracy to violate Brady, and
failure to intervene to prevent an ongoing Brady viola-
tion. He also alleged an equal-protection violation, a
RICO claim, a Monell claim against the City, and state-law
claims for false imprisonment, false arrest, intentional
infliction of emotional distress, and malicious prosecu-
tion. Before trial the City stipulated to the entry of judg-
ment against it if the jury found any of the officers liable
on any of the constitutional claims, removing the Monell
issue from the scope of the trial. Pretrial proceedings
narrowed the case even further, leaving the following
four claims for trial: the alleged Brady violation, the
Brady conspiracy claim, the Brady failure-to-intervene
claim, and the malicious-prosecution claim. The three
Nos. 10-2951 & 11-2883 7
claims based on Brady were premised on the same basic
factual allegation that the officers had deliberately with-
held and conspired to conceal critical impeachment
evidence of a pattern or practice of abuse of power by
officers within the SOS. Thompson sought to prove the
pattern of police misconduct through his own testi-
mony, the testimony of implicated SOS officers, and the
testimony of other citizen witnesses who were victims
of malfeasance by SOS officers during the relevant time
period.
Motions in limine circumscribed the proofs and compli-
cated the task of presenting the case to the jury. Thompson
had initially planned to call 11 citizen witnesses to
testify about abuses by SOS officers. In protracted
pretrial proceedings, the district court issued a series of
rulings under Rule 403 of the Federal Rules of Evidence
barring four of these witnesses from testifying. Thompson
was thereafter stymied in his effort to obtain the
presence of certain others at trial; he was unable to
serve subpoenas on two, couldn’t locate another, and
couldn’t secure the presence of one more without de-
laying the trial for two days. Still another citizen
witness had credibility problems based on his criminal
history, so Thompson decided against calling him. In
the end Thompson was left with only two citizen
witnesses who would testify about their experience as
victims of abuses of power by SOS officers.
In addition to the citizen witnesses, Thompson wanted
to call the individual defendants adversely and also
certain other SOS officers—Rice, James Eldridge, and
8 Nos. 10-2951 & 11-2883
John Blake—who were implicated in the State’s Attorney’s
investigation. During discovery, however, the officers
invoked their Fifth Amendment right against self-incrimi-
nation. Thompson asked the court for a jury instruc-
tion about the permissible adverse inference from the
officers’ assertion of the Fifth Amendment. See Lefkowitz
v. Cunningham, 431 U.S. 801, 808 n.5 (1977); Baxter v.
Palmigiano, 425 U.S. 308, 318 (1976); LaSalle Bank Lake View
v. Seguban, 54 F.3d 387, 389-90 (7th Cir. 1995). The court
agreed to give the instruction. Some of the SOS offi-
cers—not the defendants here—had pleaded guilty to
abuse-of-power charges in connection with the corrup-
tion investigation. They, too, indicated their intention
to invoke the Fifth Amendment, and Thompson sought
to introduce testimony from their guilty-plea hearings.
The defendants objected on grounds of unfair prejudice,
and the district court likewise excluded this evidence
under Rule 403.
Thompson planned to present his own testimony,
of course, and before trial he sought to minimize the
prejudicial effect of his criminal history on cross-exam-
ination. He had a long record of arrests during the past
20 years, but only one conviction in the ten years pre-
ceding the trial. The district judge admitted the convic-
tion for impeachment purposes but barred any reference
to Thompson’s arrest record. Thompson also had a
history of using false names during some of his arrests,
and the defendants naturally wanted to bring this evi-
dence to the jury’s attention. The court allowed it, but in
an effort to avoid the obvious inference that Thompson
Nos. 10-2951 & 11-2883 9
had used the aliases during arrests—thereby putting his
arrest record into evidence through the back door—the
judge instructed defense counsel to refer to Thompson’s
use of aliases “during an important event in your life.”
Finally, the judge barred evidence of Officer Suchocki’s
indictment. This was the subject of heated debate be-
tween the parties both before and during the trial. The
defense wanted the fact of the indictment admitted, a
counterintuitive position that requires some explana-
tion. In brief, under Illinois law a malicious-prosecution
claim requires proof that the criminal proceeding against
the plaintiff was terminated in a manner “indicative of
[the plaintiff’s] innocence.” Swick v. Liautaud, 662 N.E.2d
1238, 1242 (Ill. 1996). The defense wanted to argue that
Thompson’s conviction had been vacated and the case
dismissed not because he was innocent but because
Suchocki had been indicted. Thompson’s position was
that if the indictment came in, then its contents should
be read to the jury to give a more complete explanation
of why Suchocki’s testimony was unreliable—to explain,
that is, that his testimony was not just unreliable for
some reason unrelated to abuse of power but was thor-
oughly tainted by alleged corruption similar to Thomp-
son’s allegations here. The defense objected to admitting
the contents of the Suchocki indictment and also in-
sisted that the jury should be told that the indictment
was eventually dismissed. The judge resolved the contro-
versy by barring any reference to Suchocki’s indictment.
Notwithstanding this hard-fought pretrial ruling, at
trial the defense attorney posed a series of questions
10 Nos. 10-2951 & 11-2883
about the indictment of SOS officers—including
Suchocki—during direct examination of Bernard
Murray, Smitko’s supervisor in the State’s Attorney’s
Office. Defense counsel also mischaracterized ASA
Murray’s testimony during closing argument. Thompson’s
objections on these points were sustained, but he main-
tains on appeal that substantial damage to his case
was done.
The jury found Suchocki liable on the Brady claim
only. In all other respects, the verdict favored the de-
fense. Suchocki was found not liable on the three remain-
ing claims against him, and the jury found in favor of
McDermott and Burzinski across the board. As damages
for Thompson’s injury of three years of wrongful impris-
onment, the jury awarded $15,000.
Thompson moved for a new trial on the claims he
had lost and also on damages, but the district court
denied the motion. Thompson then requested an award
of attorney’s fees and costs under 42 U.S.C. § 1988 as
the prevailing party. The court granted the motion but
reduced the award by 70% based on Thompson’s
limited success at trial and because he had rejected a
“substantial” settlement offer. The court also slashed the
hourly rate requested by one of Thompson’s lawyers.
Thompson appealed from the judgment entered on the
jury’s verdict and filed a separate appeal from the
court’s attorney’s fees order.
Nos. 10-2951 & 11-2883 11
II. Discussion
Thompson’s appeal raises multiple claims of trial error
mostly stemming from the district court’s evidentiary
rulings. He also argues that the district court reduced his
attorney’s fees by far too much. We begin with the
claimed trial errors, and because we agree that a new
trial is warranted, we do not reach the matter of attor-
ney’s fees.
Thompson’s arguments can be grouped under three
main headings. First, he challenges the district court’s
pretrial exclusion of two categories of evidence under
Rule 403: (1) citizen witnesses who planned to testify
about specific instances of misconduct within the SOS;
and (2) the guilty-plea testimony of officers implicated
in the State’s Attorney’s investigation in which they
described prior acts of corruption and other abuses of
power by SOS officers, including the defendants. This
evidence was directly relevant to the three Brady claims
and to a lesser degree also was relevant to Thompson’s
state-law claim for malicious prosecution. Second, Thomp-
son challenges the admission of his use of aliases, which
he contends raised an obvious and prejudicial inference
about his arrest record. Finally, Thompson argues that
defense counsel violated the district court’s pretrial
ruling barring questions about the Suchocki indictment
and then exacerbated the damage by misrepresenting
ASA Murray’s testimony during closing argument. We
take each argument in turn.
12 Nos. 10-2951 & 11-2883
A. Evidence of SOS Misconduct
Thompson argues that the district court erroneously
excluded the following evidence related to his Brady
claims: (1) the testimony of several citizen witnesses who
were victims of misconduct by SOS officers; and (2) the
guilty-plea testimony of certain SOS officers who were
indicted in connection with the corruption investigation.
His principal contention is that the judge misapplied
Rule 403, undervaluing the importance of this evidence
and overvaluing concerns about unfair prejudice and
consumption of trial time with “mini-trials.”
The district court has wide discretion in admitting
and excluding evidence; we review evidentiary decisions
for abuse of discretion only, see United States v. Wilson,
437 F.3d 616, 620 (7th Cir. 2006), giving “special deference”
to the trial court’s determinations, see United States v.
LeShore, 543 F.3d 935, 939 (7th Cir. 2008). Rule 403
permits the court to exclude otherwise relevant evidence
“if its probative value is substantially outweighed by a
danger of . . . unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or need-
lessly presenting cumulative evidence.”
The district court gave two reasons to limit Thompson’s
presentation of this evidence: unfair prejudice and con-
cerns about extending the length of trial with lots of “mini-
trials.” Unfair prejudice is “an undue tendency to
suggest decision on an improper basis, commonly, though
not necessarily, an emotional one.” FED. R. E VID. 403
advisory committee’s notes on 1972 Proposed Rules
(cited in Old Chief v. United States, 519 U.S. 172, 184-85
Nos. 10-2951 & 11-2883 13
(1997)). “The amount of prejudice that is acceptable
varies according to the amount of probative value the
evidence possesses. ‘[T]he more probative the evidence,
the more the court will tolerate some risk of prejudice,
while less probative evidence will be received only if the
risk of prejudice is more remote.’ ” United States v. Boros,
668 F.3d 901, 909 (7th Cir. 2012) (quoting United States
v. Vargas, 552 F.3d 550, 557 (7th Cir. 2008)).
Concerns about trial efficiency may fit under various
Rule 403 headings: confusion of the issues, undue delay,
waste of time, and needless presentation of cumulative
evidence. “Litigants are not entitled to burden the
court with an unending stream of cumulative evidence.”
MCI Commc’ns Corp. v. AT&T Co., 708 F.2d 1081, 1171
(7th Cir. 1983). The district court “retains considerable
latitude even with admittedly relevant evidence in re-
jecting that which is cumulative, and in requiring that
which is to be brought to the jury’s attention to be done
so in a manner least likely to confuse that body.”
Hamling v. United States, 418 U.S. 87, 127 (1974). At the
same time, however, the district court abuses its discre-
tion if it so limits the evidence that the litigant is
effectively prevented from presenting his or her case.
See Cerabio LLC v. Wright Med. Tech., Inc., 410 F.3d 981, 994
(7th Cir. 2005); Sec’y of Labor v. DeSisto, 929 F.2d 789, 796
(1st Cir. 1991) (“[W]e hold that the witness limitation
constituted an abuse of discretion in that it prevented
both parties from presenting sufficient evidence on
which to base a reliable judgment.”).
In MCI Communications, for example, we held that the
imposition of time limits on the trial as a whole is not “per
14 Nos. 10-2951 & 11-2883
se, an abuse of discretion” and that such time limits “may
be appropriate in protracted litigation provided that
witnesses are not excluded on the basis of mere numbers.”
708 F.2d at 1171. But we also noted the importance of
flexibility “to accommodate adjustment if it appears
during trial that the court’s initial assessment was too
restrictive.” Id. With these background principles in
place, we proceed to Thompson’s complaints about the
district court’s Rule 403 rulings.
1. Exclusion of citizen witnesses
The crux of Thompson’s Brady claim was that Officers
Suchocki, McDermott, and Burzinski violated his right
to due process by deliberately withholding crucial im-
peachment evidence before his trial and continuing to
conceal it after his conviction while his appeal was
making its way through the Illinois courts. See Strickler v.
Greene, 527 U.S. 263, 280-81 (1999) (the due-process duty
to disclose exculpatory evidence applies regardless of
whether the evidence is requested, includes impeach-
ment evidence, and applies to information known only
to the police); see also Giglio v. United States, 405 U.S. 150,
154 (1972) (extending the due-process disclosure obliga-
tion under Brady to material impeachment evidence);
Engel v. Buchan, 710 F.3d 698, 706 n.7 (7th Cir. 2013);
Whitlock v. Brueggemann, 682 F.3d 567, 588 (7th Cir. 2012)
(The Brady obligation “does not cease to exist at the
moment of conviction” but “continues to apply” to the
plaintiff’s posttrial assertion that he “did not receive a
fair trial because of the concealment of exculpatory evi-
Nos. 10-2951 & 11-2883 15
dence known and in existence at the time of that trial.”);
Steidl v. Fermon, 494 F.3d 623, 625 (7th Cir. 2007). Thompson
also alleged that the officers conspired to violate the
Brady disclosure duty and failed to intervene to prevent
an ongoing Brady violation.
The common factual basis of all of the Brady claims
was that the defendant officers were aware of and par-
ticipated in a long-standing pattern and practice of cor-
ruption within the SOS in which officers regularly fabri-
cated grounds for drug and gun investigations, con-
ducted illegal searches, made false arrests, pursued
false criminal charges, and covered up the malfeasance
by filing false police reports and giving false testimony.
As we have explained, Thompson originally planned to
call 11 citizen witnesses to testify about their experiences
as victims of the alleged corrupt practices within the
SOS. The district court excluded four of those witnesses:
Rafael Vergil, Darnell Fields, Thomas Conrad, and
Michael Temple.
Rafael Vergil was a Chicago police officer who would
have testified that in 2002 Officers McDermott and
Burzinski, along with other SOS officers, illegally entered
and searched his home, and later made false statements
to the Chicago Police Department’s Office of Professional
Standards to cover up the incident. The district court
held that this episode was not “sufficiently connected to
this case to be allowed.” More specifically, the judge
thought that Vergil’s testimony was only tangentially
relevant because he did not suffer a Brady violation.
Darnell Fields was arrested by Officer Burzinski and
other SOS officers in May 2002 on a charge of unlawful
16 Nos. 10-2951 & 11-2883
use of a weapon. Fields would have testified that the
officers falsified evidence leading to an illegal search
in which officers discovered a gun in Fields’s home and
arrested him. The district court excluded Fields’s testi-
mony because “[t]his is not a conspiracy to engage in
bad police behavior . . . . It’s a conspiracy to violate some-
one’s due process rights by failing to disclose informa-
tion to the government . . . .”
Thomas Conrad would have testified that on June 19,
2003, he was confronted by six SOS officers who
searched his bar without grounds and repeatedly de-
manded that he produce guns. They returned the next
day with Officer Suchocki and continued to demand that
he produce his guns. The district court provisionally
excluded Conrad’s testimony because it “doesn’t have
anything to do with planting evidence, fabricating evi-
dence or lying about evidence in any courtroom pro-
ceeding.” Thompson argued in response that this in-
cident helped to prove the larger pattern of SOS officers
fabricating the grounds for investigations and filing
false police reports, particularly in connection with base-
less and unlawful searches for guns. The court rejected
this argument, noting that although Suchocki had partici-
pated in the follow-up search of Conrad’s bar, none of the
defendants were present during the initial search.
Michael Temple was arrested by Officer Burzinski and
other SOS officers in June 2005. He would have testified
that Burzinski planted a gun on him, leading to his false
arrest. The district court acknowledged that Temple’s
testimony was “precisely the same type of conduct that’s
Nos. 10-2951 & 11-2883 17
alleged by the plaintiff in this case.” Nevertheless, the
court barred Temple from testifying because his June 2005
arrest was “just too far removed from the time frame
that we’re concerned with here.”
Beyond the witnesses whose testimony was specifically
excluded on motions in limine, several of Thompson’s
planned citizen witnesses were not called or did not
testify for various other reasons. Donald Wisniewski
would have testified that in 2003 Officers Suchocki,
McDermott, and Burzinski illegally entered and searched
his home, demanding that he produce guns, falsely ar-
rested him, and falsified their police reports about the
incident. The district court initially withheld ruling on
the admissibility of Wisniewski’s testimony. When the
matter was revisited on the first day of trial, Thompson
acknowledged that the court’s earlier rulings excluding
other witnesses who were the victims of unlawful
home searches also applied to Wisniewski.
In addition, Thompson was unable to serve a subpoena
on two other citizen witnesses and decided against
calling another based on the witness’s criminal history.
A final out-of-town citizen witness was scheduled to fly
in and testify on the Friday of trial (the trial began on a
Monday), but Thompson finished his case-in-chief two
days early and decided not to keep the jury waiting to hear
that witness’s testimony. All in all, Thompson was left
with only two citizen witnesses who testified about the
pattern of misconduct by SOS officers. These two—Kenya
Richmond and Anthony Castro—testified about unlawful
searches and falsification of evidence by Officer Suchocki
and other SOS officers, but not McDermott and Burzinski.
18 Nos. 10-2951 & 11-2883
Thompson argues that the district court abused its
discretion in excluding Temple, Vergil, and by implica-
tion Wisniewski. The error hurt his case, he contends,
because it left him without witnesses who could testify
that McDermott and Burzinski were aware of and par-
ticipated in the pattern of misconduct within the SOS.
To establish prejudice, he points to the split verdict: The
jury found Suchocki liable for violating Brady but
cleared him on all other counts and found for McDermott
and Burzinski across the board.
The district court seemed to understand that these
witnesses were important to Thompson’s case: “I’m at a
loss to understand how else you prove a pattern of
such conduct, if not by the testimony of people who
claim to have witnessed it and sufficient testimony to
establish not just an isolated incident, but an actual
pattern of such conduct . . . .” Nonetheless, in ruling on
the defense motions in limine, the court required sub-
stantial similarity between the misconduct alleged by
the citizen witnesses and the misconduct involved in
Thompson’s case. The court also seemed to require a
temporal link between the misconduct alleged by the
citizen witnesses and Thompson’s case. Essentially, the
court excluded the testimony of SOS victims unless
the incident in question involved similar facts and oc-
curred at around the same time as Thompson’s arrest.
Thompson maintains that this approach was based on
a too narrow view of the purpose and probative value
of the pattern-of-misconduct evidence, including the
testimony of the citizen witnesses who were victims of
Nos. 10-2951 & 11-2883 19
SOS malfeasance. We agree. Requiring close factual
similarity to Thompson’s case—in other words, requiring
a Brady due-process violation or something very simi-
lar—misses the real point of this evidence. The pattern
of misconduct within the SOS is the very impeachment
evidence that the officers were alleged to have withheld in
violation of the basic due-process disclosure duty under
Brady. Recall that Thompson was convicted and sent to
prison based solely on the testimony of Officers Suchocki
and McDermott—testimony that the State’s Attorney
conceded was not credible because of the pattern of
corruption in the SOS. Evidence of that pattern of cor-
ruption—false investigations and searches, false arrests
and charges, and the filing of false police reports to
cover up the misconduct—constituted proof of an
element of all three Brady claims. It helped establish
that critical impeachment evidence—the officers’ involve-
ment in a pattern of SOS misconduct—existed and was
deliberately withheld.
Understood in this light, the testimony of the
excluded witnesses was quite probative. Vergil and
Wisniewski were prepared to testify that McDermott
and Burzinski illegally searched their homes in 2002 and
2003 and filed false reports about the incidents. This
evidence tends to prove that the defendants were
aware of and participated in abuses of power by the SOS
at the relevant time. In particular, the evidence would
have helped to prove that the two officers took part in
the practice of fabricating grounds for criminal investi-
gations and the subsequent concealment and cover-
up. Temple would have testified that Burzinski planted
20 Nos. 10-2951 & 11-2883
a gun and falsely arrested him in 2005. This incident
was nearly identical to the facts of Thompson’s case, but
the district court excluded it as “just too far removed”
from the time of Thompson’s ordeal. This misunder-
stands the scope of the claimed Brady violations.
Evidence that Burzinski engaged in the same kind of
misconduct in 2005 is powerful circumstantial evidence
that he was involved in the pattern of abuse of power
by SOS officers dating back to Thompson’s arrest in
2002 and trial in 2003. This is especially so in light of
the fact that the State’s Attorney’s investigation of the
SOS did not come to fruition until 2006 and revealed a
pattern of corruption stretching back to 2002.
In short, the testimony of these witnesses was highly
probative. To exclude it under Rule 403 required a
finding that its probative value was substantially out-
weighed by the risk of unfair prejudice to the defendants
or a substantial concern about confusion of the issues,
waste of time, delay, or cumulative evidence. Unfair
prejudice was not asserted, nor was there a serious sug-
gestion that the testimony of these witnesses would be
a waste of time or would mislead or confuse the jurors.
The testimony was not cumulative—indeed, these were
the only citizen witnesses who could testify about
McDermott’s and Burzinski’s participation in the
alleged misconduct within the SOS. Instead, the district
court precluded these witnesses from testifying based
on a generalized concern that admitting this evidence
would entail time-consuming “mini-trials.” The record
does not support this ground for excluding this
important evidence. Thompson’s counsel indicated
Nos. 10-2951 & 11-2883 21
that these witnesses would take a “half day” at most,
and indeed the trial proceeded much more quickly than
expected. Excluding these witnesses was an abuse of
discretion; we will consider the question of prejudice in
a moment.
2. Guilty-plea testimony
Thompson also planned to prove his Brady claims
through the testimony of five former Chicago police
officers who were the defendants’ “teammates” in the
SOS. Officers Hopkins, Maka, Markiewicz, Villareal, and
McGovern pleaded guilty to criminal corruption charges
stemming from the State’s Attorney’s investigation,
thus corroborating Thompson’s claim that the de-
fendants deliberately withheld critical impeachment
evidence about a pattern of corruption within the SOS
and conspired with other SOS officers to conceal the
evidence. These officers intended to assert their Fifth
Amendment privilege against self-incrimination, so
Thompson sought to introduce their guilty-plea
testimony in which they described nine specific incidents
of SOS misconduct between 2003 and 2005.4 Two of
these episodes involved the defendants.
4
The defendants do not argue that the guilty-plea testimony
is inadmissible hearsay. It is well-established that a witness
who asserts the Fifth Amendment privilege against self-incrimi-
nation is “unavailable” for purposes of the exceptions to
the hearsay rule under Rule 804 of the Federal Rules of Evi-
dence. See California v. Green, 399 U.S. 149, 168 n.17 (1970).
22 Nos. 10-2951 & 11-2883
For example, Officer Maka’s guilty-plea testimony
described an unlawful search and seizure on December 3,
2003, by a group of SOS officers that included Suchocki;
the incident included the falsification of police reports
and giving false testimony. Similarly, Officer Villareal’s
guilty-plea testimony described the falsification of
grounds for a stop and arrest on May 17, 2005, by a
group of SOS officers that included Burzinski; this
incident, too, involved falsified police reports and an
agreement to give perjured testimony to cover up the
misconduct. The common denominator in the guilty-
plea testimony of the nonparty officers was the involve-
ment of Officer Finnegan, who was also present during
Thompson’s interrogation and was listed as a “victim”
in the police reports filed on Thompson’s arrest.
Regarding Officer Villareal’s guilty-plea testimony
in particular, the district judge thought the May 17, 2005
incident was just “too late in time” from Thompson’s
arrest in September 2002. The court also generally charac-
terized the guilty-plea testimony as “a bit redundant”
and merely “circumstantial evidence of the existence of
a conspiracy as opposed to direct evidence.” Ultimately,
the court excluded all of the guilty-plea testimony on
grounds of unfair prejudice:
I’m not going to allow the guilty pleas. The prejudice
to the defendants, to me, just overwhelms the proba-
tive value. I think arguably the evidentiary analysis,
that is, the admissibility, is probably on the plaintiff’s
side; but the prejudicial effect to these defendants of
having other people they have no control over take
Nos. 10-2951 & 11-2883 23
the Fifth Amendment, the prejudicial effect of having
their out-of-court statements given at a time when
they had no ability to cross-examine them or ques-
tion the veracity of those statements, the fact that
the statements were given—well, in different proceed-
ings, I think the prejudice that these defendants will
be found liable based upon the conduct of others is
just too great. It outweighs the probative value of
those guilty pleas. So I’m not going to allow them.
The court’s concern about the defendants’ inability to
cross-examine the officers at the time of their pleas was
misplaced. As we have explained, “unfair prejudice” under
Rule 403 means an undue risk that the jury will decide
the case on an improper basis—usually, though not
always, because the proffered evidence appeals to
emotion more than fact or reason. On this understanding
of unfair prejudice, the inability to cross-examine
doesn’t qualify. The court’s second concern—that the jury
might be tempted to find the defendants liable based
on the outrageous conduct of other officers—is closer to
the mark. But it must be heavily discounted here
because that risk is always present in a conspiracy
claim, which by definition requires proof that the defen-
dant formed an agreement with another to violate the
plaintiff’s rights. In the context of the specific claims in
this case, the probative value of the guilty-plea testi-
mony was significant and the risk of unfair prejudice,
properly understood, was modest.
The court’s exclusion of this evidence was even
more problematic because the unusual circumstances of
24 Nos. 10-2951 & 11-2883
this case forced Thompson to structure his claims
around the adverse inference from the officers’ assertion
of the Fifth Amendment in response to questions about
misconduct in Thompson’s case in particular and
within the SOS more generally. The adverse inference
is permissible in a civil case but not required, see Evans
v. City of Chicago, 513 F.3d 735, 740-41 (7th Cir. 2008), and
we have held that the inference alone is not enough for
a finding of liability, see LaSalle Bank, 54 F.3d at 390-91(adverse inference from Fifth Amendment silence is
permissible in a civil case but must be accompanied
by other evidence to support liability). Thompson thus
needed additional evidence to corroborate the adverse
inference that the defendants knew of and participated
in a pattern of misconduct within the SOS.
Moreover, at the time of the pretrial rulings, the court
assumed that “seven or eight” incidents of SOS mis-
conduct would come in through Thompson’s citizen
witnesses. By the middle of the trial, that number
had dwindled to two, so Thompson asked the court to
reconsider its ruling excluding the guilty-plea testimony
of the nonparty SOS officers. See MCI Commc’ns, 708 F.2d
at 1171 (emphasizing the need for flexibility to adjust
Rule 403 rulings as needed during trial); United States v.
Dolliole, 597 F.2d 102, 106 (7th Cir. 1979) (the avail-
ability of other methods of proof is an appropriate
factor in Rule 403 analysis). The court declined to do so.
We are sensitive to the district court’s substantial dis-
cretion in weighing the risk of unfair prejudice against
the probative value of proffered evidence when ruling
Nos. 10-2951 & 11-2883 25
on motions under Rule 403. Still, the exclusion of the
guilty-plea testimony based on the risk of unfair prejudice
was an abuse of discretion in the unique circumstances
of this case for the reasons we have explained. Even if
the district court’s initial decision to exclude the guilty-
plea testimony was not an abuse of discretion, the court
erred by not reconsidering it once it became clear
that Thompson was left with little corroborating evidence
in his claims against McDermott and Burzinski.
B. Admission of Thompson’s Use of Aliases
Thompson also maintains that the court allowed the
defense to cross-examine him on his use of aliases in a
manner that permitted an obvious and prejudicial infer-
ence about his history of arrests. As we have noted,
Thompson had been arrested many times over a 20-year
period—mostly for drug-related offenses—but was
charged and convicted only once in the ten-year period
preceding the trial. The district court allowed the use of
the conviction for impeachment purposes but barred
any reference to the arrests. Thompson also had a history
of using an alias when arrested, and he did so again
when the defendants arrested him on September 21, 2002,
giving the name “Terant Pearson” in connection with
that arrest, see Pearson, 826 N.E.2d at 1099 (referring to
Thompson in the case caption as “Terant Pearson”). He
used other false names during earlier arrests.
Understandably, the district court allowed defense
counsel to question Thompson on cross-examination
about his use of aliases. But the court went further, permit-
26 Nos. 10-2951 & 11-2883
ting counsel to question him about 12 specific dates on
which he used an alias and listing the particular false
names that he used on each occasion. Thompson ob-
jected that this cross-examination would completely
undermine the exclusion of his arrest record by clearly
implying to the jury that he used aliases during arrests.
The district court rejected the argument but explored
with counsel how this risk of prejudice might be mini-
mized. The court settled on the following approach:
Defense counsel was permitted to cross-examine Thomp-
son regarding 12 specific occasions on which he used
a false name “during an important event in your life.”
This line of inquiry, which included the specific aliases
Thompson used on the 12 dates, culminated with the
following question: “And on this date, on the date
we’re here for, September 21st, 2002, the date you were
arrested, when you were asked to give your name, you
said your name was Terant Pearson, correct?”
Thompson strenuously objected at trial and argues on
appeal that this “compromise” was highly prejudicial,
and rightly so. In general, a witness’s arrest record will
not be admissible, either because it is inadmissible char-
acter evidence under Rule 404(b) or because it is sub-
stantially more unfairly prejudicial than probative
under Rule 403. There are exceptions, of course. Under
Rule 608(b) of the Federal Rules of Evidence, the court
may permit cross-examination on specific instances of
conduct if probative of the witness’s character for truth-
fulness or untruthfulness. The scope of cross-examina-
tion under Rule 608 is subject to Rule 403 balancing,
however. Here, the district court conducted that
Nos. 10-2951 & 11-2883 27
balancing and sensibly concluded that cross-examination
on Thompson’s arrest record would be unfairly prejudicial,
and the prejudicial effect substantially outweighed the
probative value of the evidence. But admitting the alias
evidence in such an odd and elaborate way completely
undid the protective effect of the exclusion of Thompson’s
arrest record. Permitting a belabored series of questions
in which Thompson was forced to admit to using an
alias “during an important event in your life”—12 times
in all—is a strange way to guard against unfair prejudice.
This litany of false names used “during an important
event in your life” presented the jury with an unmis-
takable and detailed picture of Thompson’s arrest
history, particularly when the inquiry culminated with a
question specifically addressed to Thompson’s use of an
alias on the date of his arrest by the defendants. The
defendants insist that there is no reason to suppose the
jurors connected the dots between “important events” and
arrests. An “important event,” they point out, “could [be]
almost anything,” including “a wedding, . . . the birth of
a child, . . . starting a new job or business venture, or a
host of other situations.” This is nonsense. We are quite
sure that no juror failed to grasp that the 12 “important
events” were arrests.
The jury’s award of damages—just $15,000 for more
than three years of wrongful imprisonment—suggests
that the way in which the alias evidence was admitted
was indeed prejudicial. The jurors may have con-
cluded that Thompson was a chronic lawbreaker long
accustomed to incarceration. There were other ways
28 Nos. 10-2951 & 11-2883
in which Thompson’s use of aliases could have been
placed before the jury without doing this kind of damage.
A single question about his use of an alias during the
September 21, 2002 arrest would have sufficed, perhaps
accompanied by a summary question confirming that
he had used a false name on other occasions as well.
But allowing this exaggerated cross-examination re-
garding 12 separate uses of aliases “during an important
event in your life” was an abuse of discretion.
C. The Suchocki Indictment and the Malicious-Prosecu-
tion Claim
Finally, Thompson argues that defense counsel violated
the district court’s pretrial order excluding evidence of
the Suchocki indictment and made matters worse by
misstating ASA Murray’s testimony during closing argu-
ment. This argument relates to the malicious-prosecu-
tion claim, which under Illinois law has the following
five elements: (1) the defendant commenced or con-
tinued a criminal proceeding against the plaintiff; (2) the
proceeding was terminated in favor of the plaintiff;
(3) there was no probable cause to commence or con-
tinue the proceeding; (4) the defendant acted with
malice; and (5) the plaintiff suffered damages as a proxi-
mate result of the defendant’s conduct. Swick, 662
N.E.2d at 1242. In addition, the Illinois Supreme Court
has held that “a malicious prosecution action cannot be
predicated on underlying criminal proceedings which
were terminated in a manner not indicative of the inno-
cence of the accused.” Id. To put the qualifying point
Nos. 10-2951 & 11-2883 29
positively, the second element of the cause of action
requires proof that the criminal proceeding was terminated
in a manner indicative of the plaintiff’s innocence.
The parties vigorously contested whether the gun
charge against Thompson was dismissed in a manner
indicative of his innocence, and the matter was the
subject of much pretrial wrangling. As we have noted,
the defendants argued that the fact of the Suchocki in-
dictment should be admitted to show that the case
against Thompson was dismissed not because he was
innocent but simply because Suchocki was under a
cloud of suspicion because of an indictment unrelated to
Thompson’s case. They insisted, however, that the jury
also be informed that the indictment was eventually
dismissed. For his part, Thompson argued that if the fact
of the indictment came in, then its contents should be
admitted as well. The district court ultimately entered
a pretrial order barring any reference to the Suchocki
indictment.
Notwithstanding this apparently clear ruling, during
the direct examination of ASA Murray, defense counsel
asked him if Officer Suchocki had been indicted. Thomp-
son objected, citing the court’s pretrial ruling, but
Murray answered the question “yes” before the judge
could sustain the objection and stop him. The judge then
excused the jury while the permissible scope of Murray’s
testimony was sorted out. When the proceedings
resumed, defense counsel made no further reference
to Suchocki’s indictment. But the court never sustained
Thompson’s objection in the presence of the jury, so
30 Nos. 10-2951 & 11-2883
Murray’s testimony about the Suchocki indictment was
allowed to stand. Defense counsel then took a different
tack on the “indicative of innocence” inquiry, asking
Murray directly whether the charge against Thompson
was dropped because the State’s Attorney believed him
to be innocent. Thompson again objected, and the court
sustained the objection.
The defense attorney returned to this subject during
closing argument. Summarizing ASA Murray’s testi-
mony, defense counsel told the jurors that “you heard
Mr. Murray testify that [Thompson’s] dismissal was not
indicative of innocence.” In fact, ASA Murray did not
say this or anything like it; the district court had sus-
tained Thompson’s objection to this line of questioning.
Thompson again objected, and the district court
sustained the objection, reminding the jurors that the
arguments of counsel are not evidence.
Thompson argues that defense counsel’s questioning
and closing argument were improper and had a
prejudicial effect on his case, specifically on the question
whether the charge against him was dismissed in a
manner indicative of his innocence. Again, we agree.
Putting the fact of the indictment into evidence without
further explanation left the jury with an incomplete
and confusing picture. If the grounds for the indictment
were in evidence—if the jury knew that Suchocki was
indicted for corruption of the sort that Thompson
alleged here—then Thompson would have had a
stronger argument that the dismissal of the charge
against him was more likely than not indicative of his
Nos. 10-2951 & 11-2883 31
innocence. On the other hand, if the jury knew only
that Suchocki had been indicted, but nothing more, then
the unexplained indictment could be used to argue
that Thompson was simply the beneficiary of serendipity.
The defense could argue, in other words, that Suchocki
had gotten himself into trouble for reasons unrelated
to the misconduct alleged in this case, and Thompson’s
prison term was shortened as a result.
Indeed, the defense attorney made use of the unex-
plained indictment in precisely this way, saying in
closing argument that “[c]ircumstances allowed [Thomp-
son] to have his conviction dismissed after he spent
three years in jail on an eight-year sentence. That should
be reward enough.” Counsel then reinforced this mis-
leading argument by referring to nonexistent evidence;
namely, ASA Murray’s supposed testimony that the
dismissal of Thompson’s charges was not indicative
of his innocence. The district court properly sustained
Thompson’s objection to this misstatement of the evi-
dence. The remaining question for us is whether
this improper line of questions and argument harmed
the presentation of Thompson’s case. We move to the
claim of cumulative prejudice.
D. Cumulative Prejudicial Error
Viewed in isolation, each of the erroneous evidentiary
rulings and improper statements by defense counsel
might be insufficient to require a new trial. But we cannot
say that their combined effect was harmless. See United
States v. Williams, 81 F.3d 1434, 1443-44 (7th Cir. 1996) (“It
32 Nos. 10-2951 & 11-2883
is the total impact of all the irregularities at trial, rather
than the impact of each one examined in isolation, that
determines whether a defendant is entitled to a new
trial.”). Cumulative prejudice occurs when “ ‘(1) . . .
multiple errors occurred at trial; and (2) those errors, in the
context of the entire trial, were so severe as to have ren-
dered the trial fundamentally unfair.’ ” Christmas v. City
of Chicago, 682 F.3d 632, 643 (7th Cir. 2012) (quoting
United States v. Powell, 652 F.3d 702, 706 (7th Cir. 2011)).
Both elements are met here. Thompson has established
a long list of trial errors. The district court excluded the
testimony of several witnesses who were key to Thomp-
son’s Brady claims—Chicago residents who claimed to
be victims of SOS misconduct. The court refused to
admit the guilty-plea testimony of the nonparty SOS
officers, which was also highly probative on the Brady
claims. Together, these rulings left Thompson with
little evidence on his claims against McDermott and
Burzinski beyond the permissible (but not required)
adverse inference from their invocation of the Fifth
Amendment. That the jury found Suchocki liable but
exonerated McDermott and Burzinski suggests that the
exclusion of this evidence was cumulatively prejudicial.
The court also allowed the backdoor admission of
Thompson’s arrest record, which permitted the jury to
infer that he was hardened to incarceration. And defense
counsel improperly elicited testimony about the Suchocki
indictment, leaving the indictment unexplained, and
compounded the error by misstating ASA Murray’s
testimony during closing argument. This left the jury with
the unsubstantiated impression that the dismissal of the
Nos. 10-2951 & 11-2883 33
criminal case against Thompson was not indicative of
his innocence. It also permitted the jury to infer that he
was undeserving of substantial damages for more than
three years of wrongful imprisonment.
The cumulative effect of these errors had a “substantial
and injurious effect or influence on the determination
of [the] jury.” Cerabio, 410 F.3d at 994. Stated differently,
a “significant chance exists that they affected the out-
come of the trial.” Mihailovich v. Laatsch, 359 F.3d 892, 913
(7th Cir. 2004). Considered in combination, the errors
prevented Thompson from fairly and adequately pre-
senting his case to the jury. See Frymire-Brinati v. KPMG
Peat Marwick, 2 F.3d 183, 188 (7th Cir. 1993) (“One or two
of these errors might have been excused as harmless.
Collectively, however, they presented the jury with such
a skewed picture that the verdict is unreliable and must
be set aside.”). Thompson is entitled to a new trial on
the claims that he lost and also on damages.
For all the foregoing reasons, we R EVERSE and R EMAND
for further proceedings consistent with this opinion.
7-10-13