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Friday, 13 May, 2011 09:58:37 AM 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, Former Assistant State’s Attorney, ) CHARLES REYNARD, Former McLean County ) State’s Attorney, JOHN BROWN, Former McLean ) County Deputy Sheriff, TIM FREESMEYER, ) Former Normal Police Detective, ROB ) HOSPELHORN, Former Normal Police Detective, ) DAVE WARNER, Former Normal Police ) Detective, FRANK ZAYAS, Former Normal Police ) Lieutenant, COUNTY OF McLEAN, ILLINOIS, ) and TOWN OF NORMAL, ILLINOIS, ) ) Defendants. )

E-FILED

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

JURY TRIAL DEMANDED

PLAINTIFF’S CORRECTED FIRST AMENDED COMPLAINT Plaintiff, ALAN BEAMAN, by his undersigned attorneys, for his complaint against Defendants JAMES SOUK, Former Assistant State’s Attorney, CHARLES REYNARD, Former McLean County State’s Attorney, JOHN BROWN, Former McLean County Deputy Sheriff, TIM FREESMEYER, Former Normal Police Detective, ROB HOSPELHORN, Former Normal Police Detective, DAVE WARNER, Former Normal Police Detective, FRANK ZAYAS, Former Normal Police Lieutenant, COUNTY OF McLEAN, ILLINOIS, and TOWN OF NORMAL, ILLINOIS, alleges as follows: INTRODUCTION 1. This suit is brought to redress the enormous injury inflicted upon Plaintiff by

those individuals responsible for the investigation and prosecution of the August 1993 murder of Jennifer Lockmiller. The above-named individual Defendants and other unknown co-

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conspirators, individually and in conspiracy, caused Plaintiff to be convicted of Lockmiller’s murder a crime he did not commit 2. and to spend over thirteen years of his life in prison.

The Defendants caused material exculpatory evidence to be concealed from

Plaintiff and his defense counsel, in violation of Plaintiff’s right to a fair trial under the Fifth and Fourteenth Amendments of the United States Constitution. Specifically, the Defendants

developed evidence showing that Plaintiff did not have the opportunity to commit the murder and that there was a viable alternative suspect in the murder. They caused this evidence to be concealed from Plaintiff and his defense counsel. Had this exculpatory evidence been disclosed to Plaintiff, Plaintiff would not have been convicted.1 3. The Defendants also caused the prosecution of Plaintiff with knowledge that there

was no probable cause to do so. The Defendants concealed material exculpatory evidence as described above and Defendant Freesmeyer gave false and misleading testimony, causing Plaintiff to be wrongfully indicted and convicted without probable cause. 4. The Defendants’ unconstitutional, malicious, and fraudulent conduct resulted in

Plaintiff’s wrongful conviction and incarceration for Lockmiller’s murder. As a direct result of the Defendants’ misconduct, Plaintiff has unnecessarily endured extraordinary hardship and suffered incalculable pain, for which he seeks redress in this suit. JURISDICTION AND VENUE 5. This action is brought pursuant to 42 U.S.C. § 1983 to redress the deprivation

under color of law of Plaintiff’s rights as secured by the United States Constitution as well as deprivation of rights under state law. 6. This Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331 and 1367.

1

The District Court dismissed Plaintiff’s due process claim concerning the concealment of evidence related to the alternative “bypass route.” Plaintiff re-alleges these facts solely to preserve the issue for appellate review.

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7.

Venue is proper in this District under 28 U.S.C. § 1391(b). The parties reside, or,

at the time the events took place, formerly resided in this judicial district, and the events giving rise to the claims asserted herein occurred here as well. 8. This action is properly filed in the Peoria Division of this District pursuant to

Local Rule 40.1(A) because the events giving rise to the claims asserted herein occurred in McLean County, Illinois. PARTIES 9. Plaintiff Alan Beaman, 38, currently resides in Rockford, Illinois. At the time of

his wrongful prosecution for the murder of Jennifer Lockmiller, Plaintiff was a 22-year-old theater major attending Illinois Wesleyan University in Bloomington, Illinois. 10. Defendant James Souk was at all times relevant to this action employed as an

Assistant State’s Attorney by the McLean County State’s Attorney’s Office. Defendant Souk participated in, supervised, and directed the Lockmiller murder investigation and also acted as the primary prosecutor throughout Plaintiff’s criminal trial. 11. Defendant Charles Reynard was at all times relevant to this action employed as

the McLean County State’s Attorney. Defendant Reynard participated in, supervised, and directed the Lockmiller murder investigation and also supervised the criminal prosecution of Plaintiff. 12. Defendant John Brown was at all times relevant to this action employed as a

McLean County Deputy Sheriff. Defendant Brown participated in, supervised, and ratified the decisions taken in the course of the Lockmiller murder investigation. 13. Defendant Timothy Freesmeyer was at all times relevant to this action employed

as a Detective in the Normal Police Department. Defendant Freesmeyer participated in the

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Lockmiller murder investigation.

In or around October 1993, Defendant Freesmeyer was

appointed the lead investigator in the Lockmiller murder investigation. 14. Defendant Rob Hospelhorn was at all times relevant to this action employed as a Defendant Hospelhorn participated in the

Detective in the Normal Police Department. Lockmiller murder investigation. 15.

Defendant Dave Warner was at all times relevant to this action employed as a

Detective in the Normal Police Department. Defendant Warner participated in the Lockmiller murder investigation. 16. Defendant Frank Zayas was at all times relevant to this action employed as a

Lieutenant in the Normal Police Department. Defendant Zayas participated in, supervised, and ratified the decisions taken in the course of the Lockmiller murder investigation. 17. Defendant County of McLean is a political subdivision of the State of Illinois. At

all times relevant to this action, the County of McLean was the employer and principal of Defendants Souk, Reynard, and Brown. 18. Defendant Town of Normal is a political subdivision of the State of Illinois. At

all times relevant to this action, the Town of Normal was the employer and principal of Defendants Freesmeyer, Hospelhorn, Warner, and Zayas. 19. All of the individual Defendants are sued in their individual capacities. Each of

the individual Defendants acted within the scope of his employment and under color of state law while engaging in the actions alleged in this complaint and at all times relevant to this action. ALLEGATIONS OF FACT The Murder of Jennifer Lockmiller 20. On Saturday, August 28, 1993, shortly after 2:00 p.m., Normal police officers,

including Defendants Hospelhorn and Warner, responded to the apartment of Jennifer 4

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Lockmiller, a 21-year-old Illinois State University student who resided near the university’s campus in Normal, Illinois. The officers discovered Lockmiller’s severely decomposed and partially unclothed body on the floor of her bedroom, with an electrical cord from an alarm clock wrapped around her throat and a box fan lying across her face. Lockmiller had also been stabbed with a pair of scissors, which were buried in her chest up to the handles. The autopsy, conducted the next morning, indicated that Lockmiller had died of ligature strangulation with the electrical cord from the alarm clock. 21. The bizarre murder of a young college student in her apartment quickly became a

high profile story in the “twin” college towns of Normal and Bloomington, Illinois. The impending start of the school year and return of the students to both ISU in Normal and IWU in Bloomington placed extreme pressure on the Defendants to solve the murder. 22. Because of the high-profile nature of the case, Defendants Souk and Reynard

were actively involved in the Lockmiller murder investigation from day one. They remained intimately involved throughout the course of the investigation so much so that in or around

late September or early October 1993, the individual Normal police officer Defendants began conducting their investigation of the Lockmiller murder out of a work space at the McLean County State’s Attorney’s Office. In addition, Reynard and Souk both approved a series of “consensual overhear” requests, taped conversations that were later used as evidence against Plaintiff at trial. Souk and Reynard also participated in the daily “investigators’ meetings” held at the Normal Police Department, during which the State’s Attorneys and detectives planned strategy, discussed the available evidence, and developed potential suspects. It was during one or more of these meetings that the investigative team, which included defendants Zayas, Hospelhorn, Brown, Warner, Freesmeyer, Souk, and Reynard, made the decision not to disclose evidence to the defense concerning the existence of John Doe as an alternative suspect. During 5

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another such meeting, in May 1994, the team decided to arrest Plaintiff for the murder of Lockmiller. 23. Defendant Freesmeyer, who in or around October 1993 became the lead detective

in the Lockmiller murder investigation, had never managed a murder investigation before. He had a strong incentive to solve the murder to establish his reputation as an effective investigator. The pressures of Freesmeyer’s career, coupled with his inexperience, compromised his ability to conduct a fair investigation. Tunnel Vision: Immediate Focus on Plaintiff 24. Because there were no signs of forced entry or a struggle at the crime scene, the

Defendants immediately assumed that Lockmiller was murdered by an acquaintance. They focused their investigation entirely on Lockmiller’s romantic interests, making no effort to investigate any alternative scenarios for her death. 25. Within hours of the discovery of Lockmiller’s body, Plaintiff was the prime

suspect in her murder. He and Lockmiller had begun dating in or around July 1992 and had broken off their relationship approximately one month prior to the murder. At the time of the murder, however, Plaintiff was living at his parents’ home in Rockford, Illinois approximately

140 miles away from Normal. In fact, Plaintiff was completely innocent of any involvement whatsoever in Lockmiller’s murder and he had no knowledge of who had committed the crime. 26. Plaintiff remained the main suspect throughout the investigation, despite the fact

that the Defendants were unable to locate any physical evidence definitively linking him to the crime scene. 27. Further, although the decomposed state of the body made it impossible to pinpoint

the exact time or date of Lockmiller’s death, the Defendants tailored their theory of the crime to fit Plaintiff’s schedule. They theorized that the murder had occurred close to 12:00 p.m. on 6

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Wednesday, August 25, 1993

the only time that day at which Plaintiff could have even

conceivably had the chance to drive the two hours to and from Normal. The State maintained this theory of the time of the murder at Plaintiff’s trial. 28. Focusing solely on Plaintiff, Defendants Zayas, Hospelhorn, Warner, Brown, and

Freesmeyer conducted superficial investigations of the following other potential suspects: (a) Michael Swaine, who was Lockmiller’s current boyfriend and was living with her at the time of her murder, was eliminated as a suspect and began actively cooperating in the investigation of Plaintiff a mere four days after the body was discovered, even though several of Lockmiller’s neighbors reported seeing a car fitting the description of Swaine’s in the parking lot of Lockmiller’s apartment complex on the afternoon of Wednesday, August 25; four of Swaine’s fingerprints were lifted from the alarm clock used to strangle Lockmiller; and Swaine’s DNA profile was found on Lockmiller’s bedsheet. Despite the fact that this evidence was nearly identical to the evidence developed against Plaintiff, Defendant Freesmeyer relied upon Swain to help inculpate Plaintiff, requesting that Swain conduct consensual overhears with Plaintiff, both in person and over the telephone, though Swain himself was still a suspect. Other

individual Defendants, including Hospelhorn, Warner, and Reynard, supported Freesmeyer’s use of Swain in the investigation. (b) Stacy “Bubba” Gates, who, like Plaintiff, was one of Lockmiller’s former boyfriends, was eliminated as a suspect despite the fact that he had recently moved to Peoria to be closer to Lockmiller and that he and Lockmiller had plans to see each other on the Saturday after the murder. 7

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(c)

John Doe, another ex-boyfriend of Lockmiller’s, was never eliminated as a suspect and had both the motive and opportunity to commit the murder, as is more fully described below.2 Withholding of Material Exculpatory Evidence

29.

Throughout the investigation, the individual Defendants developed exculpatory

evidence suggesting that Plaintiff did not have the opportunity to commit the murder and that John Doe was a viable alternative suspect in the murder. The Defendants caused this evidence to be concealed from Plaintiff and his defense counsel. Had the evidence been disclosed, Plaintiff would not have been convicted. Plaintiff’s Opportunity to Commit the Murder3 30. The Defendants concealed from Plaintiff and his defense counsel the fact that

their own investigation had confirmed Plaintiff’s alibi and essentially eliminated his opportunity to commit the murder. 31. Plaintiff was videotaped leaving Bell Federal Savings & Loan in Rockford at

10:11:43 a.m. on the day of the murder. Phone records also showed that at 10:37 a.m. that day, a two-minute phone call was placed from Plaintiff’s residence to his church. At 10:39 a.m., a one-minute phone call was placed from Plaintiff’s residence to the home of Mitchell Olson, the church’s director of youth ministries and music. 32. The State’s case against Plaintiff heavily relied upon the theory that Plaintiff did

not make the phone calls from his residence on the day of the murder. Plaintiff’s mother, Carol Beaman, testified that when she returned home at approximately 2:16 p.m. that afternoon, Plaintiff was in his room and his car was in the driveway. If Plaintiff made the phone calls at

To protect his identity and to promote continued investigation, John Doe’s actual name is not being released into the public record at this time. 3 See fn. 1.

2

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10:37 a.m. and 10:39 a.m., it would have been practically impossible for him to drive the 140 miles to Normal, commit the murder, and drive back to Rockford in time to be home before his mother arrived. 33. It was undisputed that only Plaintiff or Mrs. Beaman could have made the phone

calls. At trial, Mrs. Beaman testified that she did not make the phone calls. 34. Prior to trial, Defendant Freesmeyer and other unknown individuals conducted a

number of time trials between Bell Federal and Plaintiff’s residence to determine whether Plaintiff had enough time to leave Bell Federal at 10:11 a.m. and arrive home in time to make the first phone call at 10:37 a.m. Defendants Souk and/or Reynard were directly and actively involved in the planning of these time trials. On information and belief, Defendant Souk also participated in and was physically present with Defendant Freesmeyer on at least one of these time trials. 35. On or around June 22, 1994, Defendant Freesmeyer recorded that the drive from

Bell Federal to Plaintiff’s residence, observing all speed limits, was 31 minutes. At trial, Defendant Freesmeyer testified that this route went through downtown Rockford and was the “most direct” route from Bell Federal to Plaintiff’s residence. Based upon this time trial which was the only time trial presented to the jury Plaintiff would have arrived home at 10:42

a.m. The State highlighted the importance of this time trial to the jury, arguing that Plaintiff could not have driven home from Bell Federal in time to make the phone calls. The evidence regarding this time trial thus substantially bolstered the State’s theory that Plaintiff must have driven from Bell Federal to Normal, committed the murder, and returned to his residence in Rockford in the early afternoon. 36. Without documenting it in any report, Defendant Freesmeyer and other unknown

individuals had timed an alternate route from Bell Federal to Plaintiff’s residence at least once 9

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prior to trial. This alternate route (hereinafter referred to as the “bypass route”) bypassed downtown Rockford by way of U.S. Route 20. Defendant Freesmeyer completed his drive from Bell Federal to Plaintiff’s residence using the bypass route in 25 minutes more than enough time for Plaintiff to have made it home by 10:37 a.m. to make the phone calls. 37. Defendant Freesmeyer omitted any mention of his time trial of the bypass route in

any written report or memorandum documenting the investigation. If a report of this or any subsequent time trials of the bypass route ever existed, it was never disclosed. The reports that were disclosed included only the time trials that supported the prosecution’s theory that Plaintiff had taken the slower route home and thus did not make the phone calls, and omitted the time trial that bolstered Plaintiff’s alibi the day of the murder. Defendant Souk testified in the postconviction proceedings that he did not feel he was obligated to tender the bypass timing results to the defense. 38. At Plaintiff’s trial, Defendant Freesmeyer did not testify as to any time trial he

conducted using the bypass route. 39. Acting individually and in conspiracy with each other and other unknown co-

conspirators, the Defendants caused this exculpatory time trial evidence to be concealed from Plaintiff and his defense counsel. 40. Had this evidence been disclosed to Plaintiff and his defense counsel, Plaintiff

would have shown that he made the phone calls from his residence at 10:37 a.m. and 10:39 am and therefore did not have the opportunity to commit the murder. John Doe as an Alternative Suspect 41. The Defendants also developed and concealed important evidence suggesting that

John Doe had both the opportunity and motive to commit the murder and was therefore a viable alternative suspect. Throughout the investigation, each of the officers named in this suit (Zayas, 10

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Brown, Warner, Hospelhorn, and Freesmeyer) either interviewed John Doe himself, as described below, or collected information about John Doe and his relationship with Lockmiller. Detective Tony Daniels, who is not a defendant here, has stated that Doe was never cleared as a potential suspect and that he was in fact a “stronger” suspect than Plaintiff. As detailed in paragraph 44, below, the Defendants never informed either Plaintiff or his defense counsel of exculpatory information regarding Doe that their investigation had uncovered. Had the

Defendants turned over all of the evidence they possessed regarding John Doe, Plaintiff would have been permitted to present Doe as an alternative suspect to the jury and Plaintiff would not have been convicted of the murder. 42. During their investigation of the Lockmiller murder in September 1993, Normal

Police Detective Tony Daniels and Defendant Hospelhorn conducted two interviews with John Doe. Doe admitted that he was one of Lockmiller’s former boyfriends and that he and

Lockmiller had been about to rekindle their romantic relationship just before her death. He said that Lockmiller and her new boyfriend, Michael Swaine, had stopped by Doe’s apartment a few days before the murder. Doe also admitted that he had sold drugs to Lockmiller in the past and that, at the time of her death, Lockmiller owed Doe money for marijuana. 43. Doe appeared to be evasive and very nervous during his interviews with the

police. In fact, he initially gave a false alibi for the day of the murder. During his first interview, Doe claimed that he went out of town on August 24, 1993 murder. the day before the

At his second interview, Doe admitted that he did not leave his apartment in

Bloomington until 4:00 p.m. on August 25. Doe’s girlfriend informed police that on August 25th she was only with Doe from 2:00 p.m. until approximately 4:20 p.m. Doe therefore had no alibi for the suspected time of Lockmiller’s murder.

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44.

In addition to this evidence, the Defendants were in possession of the following

information, which was concealed from Plaintiff and his defense counsel: (a) On September 30, 1993, Doe submitted to a polygraph examination at the Illinois State Police Bureau of Forensic Sciences in Morton, Illinois. Throughout the course of the examination, Doe did not follow specific directions necessary for the proper completion of a polygraph examination and ultimately informed the polygraph examiner that he was unable to comply. The record of Doe’s polygraph examination is documented in a report authored by Terrence McCann and addressed to Defendant Warner. Tellingly, the report designates Doe as a “suspect.” (b) In October 1994, Doe was arrested and charged with domestic battery against his girlfriend and possession of marijuana with intent to deliver. Doe’s girlfriend told police that she was the victim of physical abuse on a continual basis and that on that particular day, Doe had pinned her down on the floor and elbowed her repeatedly in the chest. (c) After his arrest, Doe’s girlfriend filed a petition for order of protection against Doe. She stated that Doe had physically abused her on numerous prior occasions. Additionally, she stated that Doe was taking injections of street steroids, which caused him to act erratically. Plaintiff did not become aware of this additional evidence regarding John Doe until his postconviction proceeding, at which time he promptly alleged that he had been prejudiced by the failure to disclose it. 45. Acting individually and in conspiracy with each other and with other unknown

co-conspirators, the Defendants caused the information about Doe’s incomplete polygraph 12

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examination, drug and domestic violence charges, petition for order of protection, and steroid use to be concealed from Plaintiff and his defense counsel. 46. In fact, Defendants Freesmeyer and Souk affirmatively represented that there was

no evidence implicating anyone else in Lockmiller’s murder. At the grand jury proceeding, Defendant Freesmeyer falsely testified that he was unable to locate any other person who had any conceivable motive to commit the murder. At a pretrial hearing, Souk told Plaintiff, defense counsel, and the court that he knew of “no such evidence” with which the defense could argue that any other party “might be found responsible” for the murder. At a subsequent pretrial discussion, Souk argued that Doe was “six months removed” from the case and again represented that there was no evidence suggesting that Doe was a viable alternative suspect. 47. Had the evidence regarding Doe been disclosed to Plaintiff and his defense

counsel, Plaintiff would have been permitted to present Doe as an alternative suspect at trial. This evidence was highly material. Indeed, one of the State’s themes at trial was “[s]uspect everyone in turn and then wipe him or her off the list.” The prosecutors also argued that the State had “proved up everybody else’s” alibi but Plaintiff’s. The concealment of the evidence regarding Doe’s motive and opportunity to commit the murder left Plaintiff without the means to challenge these false assertions. 48. Had Plaintiff been permitted to present Doe as an alternative suspect, Plaintiff

would not have been convicted of the murder of Jennifer Lockmiller. The Malicious Prosecution 49. On May 16, 1994, Defendants Reynard, Souk, Zayas, Brown, and Freesmeyer,

and potentially unknown others, met to review the facts of the case. According to Freesmeyer’s police reports, during this meeting the Defendants decided to “effect the arrest of [Plaintiff] for the homicide of Jennifer Lockmiller.” 13

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50.

Plaintiff was arrested for the murder of Jennifer Lockmiller the very next day, on

May 17, 1994. In July 1994, a grand jury returned indictments against Plaintiff for two counts of first degree murder. In March 1995, Plaintiff stood trial in the Circuit Court of McLean County. 51. At trial, the only evidence the State presented to link Plaintiff to the murder was and

wholly circumstantial. Specifically, the State’s theory relied upon 1) very questionable

incomplete evidence that Plaintiff had only a tiny window of opportunity to drive 140 miles to and from Normal to commit the murder on August 25, 1993, and 2) the false assertions that there was no viable alternative suspect in Lockmiller’s murder. In reversing Plaintiff’s

conviction, the Illinois Supreme Court found that the State’s case was founded solely upon “tenuous circumstantial evidence” of Plaintiff’s guilt. 52. The initiation and continuation of the criminal proceedings against Plaintiff were

the result of improper conduct by the Defendants. All of the individual Defendants caused material exculpatory evidence to be withheld as is more fully described above. Defendant Freesmeyer gave false and misleading testimony during the criminal proceedings as is more fully described above. 53. As a proximate result of the Defendants’ misconduct described above, Plaintiff

was wrongfully indicted, convicted, and sentenced to 50 years’ imprisonment in the Illinois Department of Corrections. Conspiracy to Violate Plaintiff’s Rights Under Federal and State Law, and Failure to Intervene to Prevent Such Violations 54. The individual named Defendants engaged, and continue to engage, in a

conspiracy to conceal material and exculpatory evidence from Plaintiff and his defense counsel concerning an alternative suspect, John Doe; to maliciously prosecute Plaintiff for the murder of Jennifer Lockmiller; and to intentionally cause Plaintiff severe and lasting emotional 14

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distress. Because the individual Defendants made an express agreement to conceal all information related to the existence of John Doe, and because each Defendant committed one or more overt acts in furtherance of this conspiracy, each is individually liable for conspiring to violate Plaintiff’s constitutional right to due process and to maliciously prosecute Plaintiff and intentionally inflict emotional distress upon him. 55. Defendants Freesmeyer, Hospelhorn, Warner, Brown, Zayas, Souk, and Reynard

entered into a voluntary agreement that they would not disclose to Plaintiff any information concerning John Doe, and thereby insured that Plaintiff was wrongfully prosecuted for Lockmiller’s murder. The individual Defendants held daily meetings during the course of the investigation in which they discussed, among other things, the viability of potential suspects. During one or more such meetings, the individual Defendants made an agreement or series of agreements that they would not disclose the existence of an alternative suspect, John Doe, to Plaintiff or his criminal defense counsel. 56. Pursuant to this agreement or agreements, the named officer Defendants

(Freesmeyer, Hospelhorn, Warner, Brown, and Zayas) purposefully omitted any significant mention of Doe from police reports and any other records turned over to the defense. The Defendants continued to conceal information about Doe after Plaintiff’s arrest, throughout the pendency of his criminal trial, and after he was wrongly convicted for first-degree murder. 57. Each of the individual police Defendants committed one or more overt acts in

furtherance of the conspiracy to conceal this exculpatory evidence: (a) Defendant Hospelhorn interviewed John Doe and John Doe’s girlfriend on multiple occasions. During each interview, Doe gave different accounts of his whereabouts in the days before Lockmiller’s murder, and it was John Doe’s girlfriend who in fact informed police that Doe had previously lied 15

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about where he was when Lockmiller was killed. Hospelhorn, on information and belief, was also present when Doe obtained an inconclusive polygraph, after he attempted to “manipulate” the examination. (b) The other individual officers, Freesmeyer, Warner, Brown, and Zayas, were also involved in developing information about Doe’s background and obtaining evidence concerning his relationship with Lockmiller. Though each of the individual detectives gathered evidence that was indicative of Doe’s guilt, they continued their efforts to inculpate Plaintiff for the murder and failed to document evidence relating to Doe. (c) Defendant Zayas signed and approved his inferior officers’ police reports, though they purposefully omitted mention of Doe as a suspect. Zayas also participated in the consensual overhears that were used to further inculpate Plaintiff in Lockmiller’s murder. (d) Defendant Freesmeyer, as the lead detective on the case, made every effort throughout the investigation to ensure that Plaintiff was found guilty of Lockmiller’s murder, going so far as to lie about the existence of other suspects at trial. 58. In the course of their participation in the investigators’ meetings, Souk and

Reynard learned about Doe’s existence and the circumstantial evidence suggesting his guilt. Souk and Reynard agreed with the individual police Defendants that information about Doe should be concealed. They also committed one or more overt acts in furtherance of the conspiracy:

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(a)

Souk and Reynard approved the overhear requests used to attempt to develop evidence against Plaintiff.

(b) (c)

Souk signed the warrant for Plaintiff’s arrest. In a pre-trial conference, Souk intentionally and falsely stated that the police had no other suspects, other than Plaintiff, for Lockmiller’s murder.

(d)

Throughout the investigation, Souk was in “daily contact” with Freesmeyer, the lead investigator in the case; Souk reviewed all of Freesmeyer’s police reports (both those that became part of the official investigation record and those that did not); Souk “knew what was important” in the investigation “and what wasn’t”; and Freesmeyer looked to Souk for direction in handling the investigation.

59.

Each of the individual Defendants knew that a constitutional violation, i.e., the

suppression of material and exculpatory evidence, had been and was being committed by other named Defendants in this suit, and each had a realistic opportunity to intervene in order to prevent harm to Plaintiff. Yet, none of the individual Defendants disclosed the concealed information concerning John Doe, and thus each failed to intervene to prevent the violation of Plaintiff’s constitutional rights. Plaintiff’s Exoneration 60. On May 22, 2008, after a lengthy appellate and post-conviction process, the

Illinois Supreme Court unanimously reversed the judgments of the circuit and appellate courts upholding Plaintiff’s conviction. People v. Beaman, 229 Ill. 2d 56 (2008). The Illinois

Supreme Court held that the suppression of material exculpatory information relating to John Doe violated Plaintiff’s constitutional right to due process under Brady v. Maryland, 373 U.S. 17

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83 (1963). Accordingly, it vacated Plaintiff’s conviction and remanded to the circuit court for a new trial. 61. After spending over thirteen years in prison, Plaintiff was released on bond on

June 26, 2008. 62. On January 29, 2009, the State chose not to initiate a new trial and dismissed all

charges against Plaintiff. Plaintiff’s Damages 63. Plaintiff has suffered and continues to suffer enormous injury as a direct and

proximate result of the Defendants’ misconduct. Plaintiff spent more than thirteen years of his life imprisoned for a crime of which he was completely innocent. He woke up each day with this reality, not knowing whether he would ever succeed in proving the wrongfulness of his conviction and incarceration. 64. During this time, Plaintiff was separated from his family and friends. He was also

deprived of the opportunity to continue his education, engage in productive labor, pursue a career, and start a family. 65. Following his exoneration and release from custody, Plaintiff suffers from lasting

psychological damage, including Post-Traumatic Stress Disorder. His reputation in his home town of Rockford, Illinois, has also been irreparably tarnished. People in Plaintiff’s community still believe that he murdered Jennifer Lockmiller, making it incredibly difficult for Plaintiff to move on with his life. In addition to causing psychological damage, this has caused Plaintiff extreme hardship, resulting, among other things, in Plaintiff’s loss of gainful employment. COUNT I 42 U.S.C. § 1983 – Due Process 66. Plaintiff repeats and realleges paragraphs 1 through 65 as if fully set forth herein.

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67.

As described more fully above, the individual Defendants, 4 while acting

individually, jointly, and in conspiracy, as well as under color of law and within the scope of their employment, deprived Plaintiff of his constitutional right to a fair trial as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution. 68. The individual Defendants, acting in conspiracy, withheld the exculpatory

material described in the preceding paragraphs from Plaintiff after his arrest and during the pendency of the criminal proceedings against Plaintiff at all times, up to and including the time of Plaintiff’s conviction. 69. In the manner described more fully above, the Defendants deliberately caused

material exculpatory evidence to be withheld from Plaintiff and his defense counsel, thereby misleading and misdirecting the criminal prosecution of Plaintiff. The exculpatory evidence concealed from Plaintiff and his defense counsel includes but is not limited to the following: (a) reports of Defendant Freesmeyer’s time trial(s) from Bell Federal to Plaintiff’s residence using the bypass route; (b) the report of the polygraph examination administered to John Doe on September 30, 1993; (c) (d) the police reports documenting John Doe’s arrest for domestic assault; the petition for an order of protection filed against Doe by his girlfriend and the statements contained therein; and (e) further and additional exculpatory evidence not yet known to Plaintiff. Absent the Defendants’ misconduct, the prosecution of Plaintiff could not and would not have been pursued.

4

The District Court dismissed Plaintiff’s federal claims against Defendants Souk and Reynard on the grounds of absolute immunity or, alternatively, qualified immunity. Plaintiff repleads the allegations against these Defendants for the purposes of preserving the issue for review on appeal.

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70.

The Defendants’ misconduct directly resulted in the unjust criminal conviction of

Plaintiff, thereby denying him his constitutional right to a fair trial and a fair appeal thereof. 71. The misconduct described in this Count was objectively unreasonable and was

undertaken intentionally with willful indifference to Plaintiff’s constitutional rights. 72. As a direct and proximate result of this deprivation of his constitutional right to a

fair trial, Plaintiff suffered injuries, including, but not limited to, emotional distress, as is more fully alleged above. COUNT II 42 U.S.C. § 1983 – Conspiracy 73. 74. Plaintiff repeats and realleges paragraphs 1 through 72 as if fully alleged herein. All of the individual Defendants5 and other co-conspirators not yet known to

Plaintiff reached an agreement amongst themselves to deprive Plaintiff of material exculpatory evidence and information related to the existence of John Doe as an alternative and viable suspect, information to which he was lawfully entitled and which would have led to his more timely exoneration of the false changes, all in violation of Plaintiff’s constitutional rights as described above. 75. In this manner, the Defendants, acting in concert with other unknown co-

conspirators, have conspired by concerted action to accomplish an unlawful purpose by an unlawful means. 76. In furtherance of the conspiracy, each of the co-conspirators committed overt acts

and was an otherwise willful participant in joint activity. 77. The misconduct described in this Count was objectively unreasonable and was

undertaken intentionally with willful indifference to Plaintiff’s constitutional rights.
5

The District Court dismissed Plaintiff’s federal claims against Defendants Souk and Reynard on the grounds of absolute immunity or, alternatively, qualified immunity. Plaintiff repleads the allegations against these Defendants for the purposes of preserving the issue for review on appeal.

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78.

As a direct and proximate result of the illicit prior agreement referenced above,

Plaintiff’s rights were violated. He suffered injuries, including, but not limited to, emotional distress, as is more fully alleged above. COUNT III 42 U.S.C. § 1983 – Failure to Intervene 79. 80. Plaintiff repeats and realleges paragraphs 1 through 78 as if fully alleged herein. In the manner described above, during the constitutional violations described

above, one or more of the individual Defendants,6 and other unknown individuals, stood by without intervening to prevent the misconduct. 81. None of the Defendants took any steps to disclose to Plaintiff or his defense

counsel exculpatory evidence and information concerning John Doe, either during Plaintiff’s criminal proceedings or anytime in the sixteen years since Plaintiff was convicted. 82. The misconduct described in this Count was objectively unreasonable and was

undertaken intentionally with willful indifference to Plaintiff’s constitutional rights. 83. As a direct and proximate result of this failure to intervene to prevent the violation

of Plaintiff’s constitutional rights, Plaintiff suffered injuries, including, but not limited to, emotional distress, as is more fully alleged above. COUNT IV State Law Claim – Malicious Prosecution 84. 85. Plaintiff repeats and realleges paragraphs 1 through 83 as if fully alleged herein. All of the individual Defendants caused Plaintiff to be improperly subjected to

judicial proceedings for which there was no probable cause. These judicial proceedings were

6

The District Court dismissed Plaintiff’s federal claims against Defendants Souk and Reynard on the grounds of absolute immunity or, alternatively, qualified immunity. Plaintiff repleads the allegations against these Defendants for the purposes of preserving the issue for review on appeal.

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instituted and continued maliciously, resulting in injury to Plaintiff. All such proceedings were ultimately terminated in Plaintiff’s favor in a manner indicative of innocence. 86. The Defendants identified above accused Plaintiff of murdering Lockmiller

knowing those accusations to be without probable cause. The individual Normal police officer Defendants made statements to prosecutors with the intent of exerting influence to institute and continue judicial proceedings against Plaintiff. 87. The initiation and continuation of the criminal proceedings against Plaintiff were

the result of improper conduct by the Defendants. All of the individual Defendants withheld material exculpatory evidence as is more fully alleged above. Defendant Freesmeyer gave knowingly false and misleading testimony as is more fully alleged above. 88. The misconduct described in this Count was undertaken with malice, willfulness,

and reckless indifference to Plaintiff’s rights. 89. As a direct and proximate result of this misconduct, Plaintiff suffered injuries,

including, but not limited to, emotional distress, as is more fully alleged above. COUNT V State Law Claim – Civil Conspiracy 90. 91. Plaintiff repeats and realleges paragraphs 1 through 89 as if fully alleged herein. As described more fully in the preceding paragraphs, all of the individual

Defendants, acting in concert with other known and unknown co-conspirators, conspired by concerted action to accomplish an unlawful purpose by unlawful means. 92. In furtherance of the conspiracy, the Defendants identified above committed overt

acts and were otherwise willful participants in joint activity. 93. The misconduct described in this Count was undertaken with malice, willfulness

and reckless indifference to Plaintiff’s rights.

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94.

As a direct and proximate result of the Defendants’ conspiracy, Plaintiff suffered

injuries, including, but not limited to, emotional distress, as is more fully alleged above. COUNT VI State Law Claim – Intentional Infliction of Emotional Distress 95. 96. Plaintiff repeats and realleges paragraphs 1 through 94 as if fully alleged herein. The acts and conduct of the individual Defendants as set forth above were

extreme and outrageous. The Defendants intended to cause or were in reckless disregard of the probability that their conduct would cause severe emotional distress to Plaintiff, as is more fully alleged above. 97. The individual Defendants’ actions and conduct did directly and proximately

cause severe emotional distress to Plaintiff, and thereby constituted intentional infliction of emotional distress. 98. The misconduct described in this Count was undertaken with malice, willfulness

and reckless indifference to the rights of others. 99. As a proximate result of the Defendants’ wrongful acts, Plaintiff suffered injuries,

including, but not limited to, emotional distress, as is more fully alleged above. COUNT VII State Law Claim – Respondeat Superior 100. 101. Plaintiff repeats and realleges paragraphs 1 through 99 as if fully alleged herein. In committing the acts alleged in the preceding paragraphs, the individual Normal

police officer Defendants were members of, and agents of, the Normal Police Department, acting at all relevant times within the scope of their employment and under color of law. 102. agents. Defendant Town of Normal is liable as principal for all torts committed by its

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COUNT VIII State Law Claim – Indemnification 103. 104. Plaintiff repeats and realleges paragraphs 1 through 102 as if fully alleged herein. Illinois law provides that public entities are directed to pay any tort judgment for

compensatory damages for which employees are liable within the scope of their employment activities. 105. Defendants Souk and Reynard were employees of the McLean County State’s

Attorney’s Office who acted within the scope of their employment in committing the misconduct described herein. 106. Defendant Brown was an employee of the McLean County Sheriff’s Department

who acted within the scope of his employment in committing the misconduct described herein. 107. The individual Normal police officer Defendants are or were employees of the

Normal Police Department who acted within the scope of their employment in committing the misconduct described herein. WHEREFORE, Plaintiff Alan Beaman prays that this Court enter judgment in his favor and against Defendants James Souk, Former Assistant State’s Attorney, Charles Reynard, Former McLean County State’s Attorney, John Brown, Former McLean County Deputy Sheriff, Tim Freesmeyer, Former Normal Police Detective, Rob Hospelhorn, Former Normal Police Detective, Dave Warner, Former Normal Police Detective, Frank Zayas, Former Normal Police Lieutenant, the County of McLean, Illinois, and the Town of Normal, Illinois, awarding compensatory damages, costs and attorneys’ fees, and punitive damages against each of the individual Defendants in their individual capacities; and for such further and additional relief as this Court may deem appropriate and just.

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JURY DEMAND Plaintiff demands trial by jury. Respectfully submitted, ALAN BEAMAN

By: /s/ Locke E. Bowman 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 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 he electronically filed the foregoing document using the Court’s CM/ECF system, which automatically served copies upon all parties listed on the attached Service List on May 11, 2011. /s/ Locke E. Bowman Locke E. Bowman _

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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

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