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Thursday, 28 June, 2012 02:45:06 PM Clerk, U.S. District Court, ILCD IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS PEORIA DIVISION ALAN BEAMAN, Plaintiff, v. JAMES SOUK, et al. Defendants. ) ) ) ) ) ) ) ) )

E-FILED

Case No. 10 CV 1019 The Hon. Joe Billy McDade Magistrate Judge Byron G. Cudmore

PLAINTIFFS MOTION TO RECONSIDER THE COURTS RULING DISMISSING COUNT I AGAINST DEFENDANTS SOUK AND REYNARD BASED ON INTERVENING SEVENTH CIRCUIT PRECEDENT Plaintiff Alan Beaman, by his undersigned attorneys, respectfully moves this Court, pursuant to Fed. R. Civ. P. 54(b), to reconsider the portion of its ruling on Defendants motions to dismiss that held that former McLean County States Attorney Charles Reynard and former Assistant States Attorney James Souk are entitled to qualified immunity as to the federal claim alleged in Count I of the Complaint. In support, Plaintiff states: 1. On March 3, 2011, this Court dismissed Plaintiffs federal due process claim

against former McLean County States Attorney Charles Reynard and former Assistant States Attorney James Souk on the grounds that Reynard and Souk were entitled to absolute immunity and qualified immunity. See 3/3/11 District Court Opinion and Order (Doc. No. 48). Specifically, the Court held that (1) Souk and Reynard were entitled to absolute immunity for their role in concealing exculpatory evidence pertaining to alternative suspect John Doe at Plaintiffs trial, and (2) the Defendants were also entitled to qualified immunity for their role in concealing this exculpatory evidence during the investigative phase of the case. In finding Souk and Reynard entitled to qualified immunity on the investigative misconduct claims, the Court reasoned that

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the Defendants could not logically be liable for withholding information from themselves as prosecutors. Id. at 19. 2. The controlling law on which the Courts decision rested has been fundamentally

altered as a result of the Seventh Circuits May 30, 2012 decision in Whitlock v. Brueggemann, __F.3d __, 2012 WL 1939906 (7th Cir. May 30, 2012) (opinion attached as Ex. A). Whitlock affirmed the denial of qualified immunity for an assistant states attorney who fabricated evidence during an investigation and then went on to prosecute the case using the very evidence that he himself had fabricated. The reasoning in Whitlock bears directly on this Courts decision as to whether Souk and Reynard should be afforded qualified immunity for their participation in the suppression of exculpatory evidence during the Lockmiller murder investigation, and requires reconsideration of the Courts earlier dismissal of the federal due process claim against those prosecutors arising out of that suppression. 3. This Court dismissed Plaintiffs federal due process claim against Souk and

Reynard in light of the Seventh Circuits earlier decision in Buckley v. Fitzsimmons, 20 F.3d 789, 795 (7th Cir. 1994) (Buckley IV) (on remand from Buckley v. Fitzsimmons, 509 U.S. 259 (1993) (Buckley III)).1 In Buckley IV, the plaintiff alleged that prosecutors, acting as investigators, violated his due process rights by paying for and coercing inculpatory statements from witnesses, and seeking out and hiring an expert witness with a reputation for fabricating testimony. Id. at 794-795. The court held that the prosecutors were entitled to qualified immunity with respect to these investigatory actions for two reasons. First, these activities, without more, did not amount to constitutional violations with respect to the plaintiff. Id. Second, even if the alleged

While the Courts opinion did not explicitly cite Buckley IV, the Courts reasoningthat prosecutors cannot be liable for withholding evidence from themselvestracked the reasoning in the Buckley IV decision, as well as the arguments set forth in Souks and Reynards motion to dismiss (Doc. No. 19), which did cite Buckley IV.
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misconduct eventually did give rise to due process violations, they would not be cognizable until trial, at which point the prosecutors were immune.2 Id. 4. The approach of Buckley IV was criticized within the federal courts, and two

circuits declined to follow itthe Second in Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000), and the Eighth in McGhee v. Pottawattamie County, Iowa, 514 F.3d 739 (8th Cir. 2008).3 However, Buckley IV was the controlling precedent in this Circuit when this Court decided Souk and Reynards motion to dismiss. And under this precedent, because Plaintiffs constitutional injury stemming from the prosecutors concealment of evidence during the criminal investigation did not occur until trial, the prosecutor Defendants were entitled to qualified immunity. 5. Whitlock now demands a different result. In Whitlock, two plaintiffs brought

1983 claims against police officers and an assistant states attorney, alleging that they coerced two witnesses to give false evidence during the criminal investigation. Michael McFatridge, the prosecuting attorney, argued that, under Buckley IV, he was entitled to qualified immunity for his investigatory misconduct because coercing witnesses, without more, did not violate the plaintiffs rights. Specifically, he argued that the plaintiffs rights were not violated until the perjured testimony was introduced at trial, at which point he was absolutely immune. Whitlock, 2012 WL 1939906, at *11.
Under Buckley IV, a police officer would violate a defendants due process rights by concealing exculpatory evidence from a prosecutor, and a prosecutor who concealed exculpatory evidence from another prosecutor would also violate the defendants same due process rights. See Buckley, 20 F.3d at 797 n.2. However, Buckley IV still afforded immunity to a prosecutor who participated in the concealment of exculpatory evidence during the investigation of a case and then compounded the violation by failing to turn over the evidence during the trial. Simply put, if a prosecutor acting as an investigator engaged in wrongful conduct which did not result in a completed constitutional violation until trial, then that prosecutor would escape liability.
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The Supreme Court granted certiorari, see Pottawattamie County, Iowa v. McGhee, 129 S. Ct. 2002 (2009), but the case settled before a decision was reached. See Deal in Case of Prosecutor Immunity, N.Y. TIMES, Jan. 5, 2010, at A12, available at http://www.nytimes.com/2010/01/05/us/05scotus.html.

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6.

The Seventh Circuit rejected this reasoning. In so doing, it looked to basic

principles of tort liability, emphasizing that the fabrication of evidence prior to trial can be both the but-for and proximate cause of a cognizable due process violation. Id. at *13. Thus, the tort may be considered complete before the evidence is introduced at trial (and before the prosecutor is entitled to absolute immunity). The Seventh Circuit distinguished this finding from that of Buckley IV by reference to the nature of the alleged violations. The Court reasoned that the types of misconduct alleged in Buckley IV (i.e., coercing testimony, paying witnesses for testimony, and shopping for favorable expert witnesses) do not necessarily add up to constitutional violations even when their fruits are introduced at trial since [e]vidence collected with these kinds of suspect techniques, unlike falsified evidence and perjured testimony, may turn out to be true. Id. at *15. In contrast, when the alleged violation concerns the fabrication of evidence during an investigation, the only reasonable explanation for this act [is] to make that evidence available for use in later proceedings. Id. Thus, the very act of fabrication, committed in the investigative phase of a criminal proceeding, is in and of itself a cognizable tort. 7. Whitlock also relied upon the accepted principle that police officers who fabricate

evidence that is later introduced at trial are subject to constitutional liability, and in so doing, affirmed its corollarythat this same liability attaches to all investigators, whether police officer or prosecutor. Id. at 11 (A prosecutor who manufactures evidence when acting in an investigatory role can cause a due process violation just as easily as a police officer.). The Court held that it would be incongruous to hold a police officer liable for fabricating evidence but hold that the prosecutor has not committed any violation for taking the same action in the same capacity. Id. at *11 (citing Burns v. Reed, 500 U.S. 478, 495 (1991)). Thus, though a prosecutor is entitled to absolute immunity for the act of introducing fabricated evidence at trial, he cannot

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take cover under the doctrine of qualified immunity if his actions as investigator proximately caused that constitutional violation. See id. at 14. 8. This is also because, using bedrock tort analysis, the states attorneys actions as

prosecutor do not constitute a supervening cause sufficient to overcome liability stemming from his participation in the investigation. Id. at 14 (One's own conduct cannot be an intervening cause sufficient to defeat a finding of causation.). Applying this analysis to McFatridge, Whitlock held that there was no break in the causal chain between the states attorneys fabrication and the constitutional violation: The fact that McFatridge eventually proceeded with this prosecution does not wipe away his involvement in the investigation at its earliest stages. Id. at *9. 9. Whitlocks reasoning marks a crucial departure from Buckley IV in that the

location of the constitutional injury is no longer dispositive of the prosecutorial immunity question. Under Whitlock, a prosecutorlike a police officermay be held liable for investigatory misconduct if his actions proximately cause a constitutional violation that arises at trial. Whitlock compels the conclusion that Souk and Reynard are not entitled to qualified immunity for the alleged due process violations committed during their investigation of Jennifer Lockmillers homicide. 10. It is unquestioned that Plaintiff has alleged an adequate due process violation

based on Souks and Reynards participation in the concealment of material and exculpatory evidence. In its March 2011 opinion, this Court acknowledged as much, stating that there appears to be no question or argument that the material withheld, the evidence regarding John Doe, was significant enough such that the government was obligated to turn over the material without a specific request. 3/3/11 Opinion and Order at 11 (the government violates a

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defendants right to a fair trial by knowingly introducing perjured testimony, failing to turn over requested exculpatory evidence, or failing to volunteer exculpatory evidence [of sufficient significance] never requested, or requested only in a general way.) (quoting Kyles v. Whitley, 514 U.S. 419, 433 (1995)). 11. However, this Court found that Souk and Reynard were ultimately protected from

liability on the basis of the timing of the alleged violation, finding that no rule of constitutional law holds that exculpatory evidence must immediately be turned over to a suspect in a criminal investigation, and thus, that Souk and Reynard could not be held liable for the suppression of evidence committed during the investigation phase of the criminal case. 3/3/11 Opinion and Order at 12. 12. Whitlock has altered the constitutional landscape in regard to the analysis of this

particular constitutional injury. While it is well-established that a police officer can be held liable for failing to turn over material exculpatory evidence to a prosecutor during a criminal investigation, see, e.g., Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001), under Whitlock, a prosecutor who engages in this same misconduct by concealing material and exculpatory evidence gathered during an investigation is equally liable. As with evidence fabrication, the only reasonable explanation for the act of concealment is to prevent the defendant from making use of the exculpatory evidence in later criminal proceedings. Whitlock, 2012 WL 1939906, at *15. Thus, a prosecutor who conceals evidence during an investigationlike one who fabricates evidenceis a proximate cause of the ensuing constitutional violation. He is not entitled to claim the benefits of qualified immunity for such misconduct. 13. Similarly, Defendants Souk and Reynard remain liable for their own acts of

concealment, which were a direct and proximate cause of Plaintiffs wrongful conviction. And as

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in Whitlock, there is no intervening act that relieves these Defendants of liability. Souks and Reynards participation in Plaintiffs criminal trial cannot break the causal chain of constitutional injury caused by their concealment of evidence during the investigation. In other words, the fact that Souk and Reynard eventually prosecuted Plaintiff does not wipe away their involvement in the prior investigative misconduct. Whitlock, 2012 WL 1939906, at *9. It is sufficient for purposes of 1983 liability that the injury Plaintiff suffered at trial can be directly traced back to the investigative misconduct of Souk and Reynard. Id. at *15. 14. Consequently, under the Seventh Circuits most recent formulation of

prosecutorial liability, Souk and Reynard are not entitled to qualified immunity for violating Plaintiffs federal due process rights during the Lockmiller homicide investigation. This Court should therefore reconsider the dismissal of that claim and should reinstate the claim as to those defendants. WHEREFORE, Plaintiff respectfully requests that this Court grant Plaintiffs motion to reconsider its ruling dismissing Plaintiffs Count I claim against Defendants Souk and Reynard on the grounds of qualified immunity. Respectfully submitted, ALAN BEAMAN By: /s/ Alexa Van Brunt One of his attorneys

Locke E. Bowman Alexa Van Brunt Roderick MacArthur Justice Center Northwestern University School of Law 375 East Chicago Avenue Chicago, Illinois 60611 (312) 503-0844

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Jeffrey Urdangen Bluhm Legal Clinic Northwestern University School of Law 375 East Chicago Avenue Chicago, Illinois 60611 (312) 503-7413

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CERTIFICATE OF SERVICE The undersigned, an attorney, certifies that she electronically filed the foregoing document using the Courts CM/ECF system, which automatically served copies upon all parties listed on the attached Service List on June 28, 2012. /s/ Alexa Van Brunt One of his attorneys _

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SERVICE LIST Beaman v. Souk et al. No. 10 CV 1019 Jeffrey Urdangen Bluhm Legal Clinic Northwestern University School of Law 375 East Chicago Avenue Chicago, Illinois 60611 (312) 503-7413; (312) 503-2704 (Fax) Attorney for Plaintiff James G. Sotos Elizabeth A. Ekl Elizabeth K. Barton James G. Sotos & Associates, Ltd. 550 East Devon, Suite 150 Itasca, Illinois 60143 (630) 735-3300; (630) 773-0980 (Fax) Attorneys for Defendants James Souk, Charles Reynard, John Brown, and County of McLean, Illinois Thomas G. DiCianni Lucy B. Fadel Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C. 140 South Dearborn Street, Suite 600 Chicago, Illinois 60603 (312) 782-7606; (312) 782-0943 (Fax) Attorneys for Defendants Tim Freesmeyer, Rob Hospelhorn, Dave Warner, Frank Zayas, and Town of Normal, Illinois