In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1878

HAROLD HILL,

Plaintiff-Appellee,

v.

CORDELIA COPPLESON, personal representative 

of MICHAEL ROGERS,

Defendant-Appellant.

____________

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 1:06-cv-06772—Amy St. Eve, Judge.

____________

ARGUED OCTOBER 28, 2009—DECIDED NOVEMBER 22, 2010

____________

Before RIPPLE, WILLIAMS and TINDER, Circuit Judges.

WILLIAMS, Circuit Judge. Over a decade after being

convicted of sexual assault and homicide, Harold Hill was

exonerated by DNA evidence. Hill filed suit against the

City of Chicago, a number of its police officers, and

Michael Rogers, an assistant state’s attorney, alleging

various constitutional violations, including a claim that

several detectives and Rogers had coerced him to falsely

confess to the crimes in violation of the Fifth Amendment.
2 No. 09-1878

Rogers filed a motion for summary judgment asserting that

he was immune from suit because of his prosecutorial

status. The district court rejected this argument, and

Rogers appeals. Because we cannot resolve the immunity issue without resolving disputed questions of

fact regarding Rogers’s role in this case, we dismiss

the appeal for lack of jurisdiction.

I. BACKGROUND

On October 14, 1990, Kathy Morgan was sexually assaulted, murdered, and left in an abandoned building in

Chicago. The building and Morgan’s body were then set on

fire in an apparent attempt to hide the crimes. Homicide

detectives from the Chicago Police Department’s Area 3

Violent Crimes Division investigated Morgan’s murder but

were unable to find the assailants.

On March 20, 1992, Harold Hill (who was 18 years old at

the time) was arrested on unrelated charges. During the

follow-up investigation on the unrelated charges, Hill was

taken to Area 3, where he met with Detectives Kenneth

Boudreau and John Halloran. Boudreau and Halloran took

Hill to an interrogation room, where he was handcuffed to

a ring on the wall. They began questioning Hill about

whether he knew of any other crimes in the area. The

discussion eventually turned to the Morgan homicide, and

Hill denied any involvement. According to Hill, the

detectives became very aggressive and repeatedly accused

him of committing the crime, even going so far as to

scream loudly directly into his ear that “you know you did

it.” Hill contends that when Halloran and Boudreau
No. 09-1878 3

became frustrated with his denials, they resorted to

physical attacks, including grabbing his shoulders and

violently shaking him, slapping him across the face, and

punching him in his chest and ribs.

Hill contends that, after hours of questioning and

physical attacks, he became desperate to appease the

detectives and decided to make up a story about how he

had heard that two men named “Pete” and “Junior” were

responsible for the crimes. Hill states that after several

more hours of questioning, the detectives presented him

with two photographs depicting two men whom Hill did

not recognize: Dan Young and Peter Williams. Hill maintains that, out of fear of further abuse, he told the detectives that he believed that the men in the pictures were

Morgan’s assailants.

At some point, the detectives called Assistant State’s

Attorney (“ASA”) Michael Rogers to the police station to

take Hill’s confession, although the parties dispute the

timing of Rogers’s arrival. Rogers claims that he went to

the station after Hill had already implicated himself in the

crimes by confessing to the detectives. Hill maintains that

he did not confess before Rogers arrived at the station; to

the contrary, he only told the detectives that he was

prepared to confess, but did not confess until his meeting

with Rogers. According to Hill, when Rogers entered the

interrogation room, Hill changed his mind about confessing and instead reasserted his innocence, telling Rogers

that he had not been involved in Morgan’s sexual assault

or murder and that he had no knowledge of the crimes.

Hill states that Rogers ignored his pleas of innocence and
4 No. 09-1878

began pressuring him to admit some involvement in the

crimes by repeatedly asking Hill if he was “ready to

confess.” Apparently frustrated by Hill’s refusal to confess,

Rogers then left the room, at which point Boudreau

reentered and again verbally and physically attacked Hill.

Shortly thereafter, Hill agreed to confess for the second

time, and Rogers returned to the interrogation room.

Hill states that Rogers, Boudreau, and Halloran together

concocted a story that Hill, Young, and Williams had

conspired to sexually assault and kill Morgan after meeting

her at a party. According to Hill, Rogers fed him several

details about Morgan’s murder to assist in his written

confession, which was prepared by Rogers and initialed by

Hill. At 12:20 a.m. on March 22, 1992—twenty-six hours

after his arrest—Hill agreed to give a court-reported

statement. Hill contends that Rogers coached him during

his statement by asking him leading questions, whispering

the answers to other questions under his breath when Hill

“didn’t know certain answers”, and mouthing to Hill

details of the crime such as the color and type of clothing

Morgan was wearing the night she was murdered. Rogers

vehemently denies Hill’s claims and states that he only

interacted with Hill briefly and for the limited purpose of

approving the criminal charges and questioning him while

the court reporter recorded his confession. Hill was

ultimately charged with Morgan’s sexual assault and

murder.

Over the next two days, detectives arrested Young and

Williams. Both men denied knowing each other or Hill,

and both initially denied any knowledge of or involvement
No. 09-1878 5

in the Morgan crimes. According to the testimony of Young

and Williams, their protestations of innocence also subjected them to physical abuse at the hands of the detectives

(including Halloran and Boudreau, who arrested and

questioned Williams). Eventually, the detectives were able

to secure written confessions from Young—who was

mentally retarded and incapable of reading or writing

anything other than his own name—and Williams—who

had been incarcerated on the day of Morgan’s murder.

Young was charged with Morgan’s sexual assault and

murder on the basis of his confession. Charges were never

brought against Williams because the detectives discovered (after securing a detailed confession from him) that he

had actually been in jail when the crimes were committed

and therefore could not have been involved. 

In September 1994, Hill went to trial on the sexual assault

and murder charges. The government introduced Hill’s

confession during its case-in-chief, but Hill maintained his

innocence and testified that his confession had been

coerced. The jury convicted Hill on both counts, and he

was sentenced to life in prison. Over a decade later, Hill

and his remaining codefendant Young (who had been

convicted in a separate trial) were exonerated after DNA

testing revealed that neither had contributed DNA to any

piece of evidence recovered from the crime scene. Hill and

Young moved for a new trial, after which their convictions

were vacated by agreement with the state’s attorney’s

office.

Hill brought this suit against the City of Chicago, present

and former Chicago homicide detectives including

Halloran and Boudreau, and ASA Rogers in January 2007.
6 No. 09-1878

During the pendency of this appeal, Rogers died. Pursuant to 1

Federal Rule of Appellate Procedure 43(a)(1), we issued an order

staying the appeal pending appointment of a personal representative for Rogers’s estate. The stay was lifted on May 6, 2010

upon our granting of the parties’ joint motion to substitute

Rogers’s personal representative, Cordelia Coppleson, as

party-defendant. We refer only to Rogers in the opinion.

Hill asserted that the coercion of his false confession was a

violation of the Fifth Amendment. He also brought a civil

conspiracy claim under 42 U.S.C. § 1983, alleging that the

defendants had conspired to coerce his confession. The

defendants moved for summary judgment on various

grounds. For his part, Rogers asserted that he was entitled

to absolute immunity because his actions were taken in

connection with his prosecutorial duties, and alternatively,

that he was entitled to qualified immunity because his

actions did not violate Hill’s constitutional rights. The

district court determined that Rogers, Halloran, and

Boudreau were not entitled to summary judgment on Hill’s

Fifth Amendment forced confession claim and his § 1983

claim. Rogers now appeals the district court’s denial of

summary judgment.1

II. ANALYSIS

We begin by addressing the issue of jurisdiction. On

appeal from a denial of summary judgment on an assertion

of absolute or qualified immunity, “we evaluate the record

de novo and determine whether we can decide each

immunity question without resolving any disputed
No. 09-1878 7

questions of fact. If we find that we cannot, then we lack

jurisdiction over the appeal of that question.” Hansen v.

Bennett, 948 F.2d 397, 399 (7th Cir. 1991) (citation omitted);

see Johnson v. Jones, 515 U.S. 304, 319-20 (1995) (“[A] defendant, entitled to invoke a qualified immunity defense, may

not appeal a district court’s summary judgment order

insofar as that order determines whether or not the pretrial

record sets forth a ‘genuine’ issue of fact for trial.”).

Conversely, if we are able to decide either immunity

question based on undisputed facts, then we do have

jurisdiction. Leaf v. Shelnutt, 400 F.3d 1070, 1078 (7th Cir.

2005) (“[W]hen the outcome of a question of law—for

instance, whether a particular action violates the Constitution—does not depend on the outcome of a disputed

factual question, we may review whether the district court

correctly determined the question of law that it considered.”).

Here, the district court determined that Rogers was not

entitled to summary judgment based on prosecutorial

immunity because genuine issues of fact remained as to

Rogers’s involvement in the coercion of Hill’s confession.

Among the evidence the district court considered was the

discrepancy about whether Hill confessed to the crimes

before or after Rogers arrived at the police station, Hill’s

testimony that he initially told Rogers that he did not want

to confess, and Hill’s assertions that Rogers had fed him

additional details about the murder to assist Hill during

his confession. The district court found that this evidence

was sufficient to create a genuine issue of material fact

with respect to the extent of Rogers’s personal involvement

in the coercion of Hill’s confession.
8 No. 09-1878

Rogers now asks this court to reassess whether he is

entitled to absolute or qualified immunity, both of which

depend on issues of fact that the district court has correctly

determined are in dispute. With respect to absolute

immunity, a prosecutor is absolutely immune from § 1983

civil liability when he “acts as an advocate for the state but

not when his acts are investigative and unrelated to the

preparation and initiation of judicial proceedings.” Smith

v. Power, 346 F.3d 740, 742 (7th Cir. 2003) (citing Buckley v.

Fitzsimmons, 509 U.S. 259, 273 (1993)). The question of

whether Rogers was acting in the role of an advocate or an

investigator depends in part on whether probable cause for

Hill’s arrest existed before Rogers’s arrival at the police

station. See Buckley, 509 U.S. at 274 (“A prosecutor neither

is, nor should consider himself to be, an advocate before he

has probable cause to have anyone arrested.”). And the

probable cause question turns on a disputed issue of fact

concerning Hill’s confession, which was the only piece of

evidence implicating him. If Hill confessed to the crimes

before Rogers arrived, then the detectives likely did have

probable cause to arrest him, which counsels toward a

finding that Rogers was acting in a purely prosecutorial

role for which he would be entitled to absolute immunity.

On the other hand, a determination that Hill did not

confess until his meeting with Rogers would indicate that

Rogers was likely acting in the role of an investigator

searching for more evidence, activities to which only the

qualified immunity analysis applies. As the district court

found, whether Rogers arrived before Hill confessed is a

disputed issue of fact that requires making credibility

determinations and weighing the evidence, which the court
No. 09-1878 9

 Rogers’s conclusory assertion that Hill had confessed prior to 2

Rogers’s arrival at the station is meritless. Rogers contends that

Hill’s agreement to confess is tantamount to a confession itself.

But this contention is not supported by the Supreme Court of

Illinois’s longstanding definition of “confession,” which is “a

direct acknowledgment of guilt on the part of the accused, either

by a statement of the details of the crime or an admission of the

ultimate fact.” People v. Allen, 107 N.E.2d 826, 830 (Ill.

1952)(citing People v. Nitti, 143 N.E. 448, 455 (Ill. 1924). Hill’s

statement that he intended to confess did not contain any details

of the crimes, nor was it an admission of the ultimate fact. See

also United States v. Gilbertson, 435 F.3d 790, 798 (7th Cir. 2006)

(citing with approval the Third Circuit’s definition of “confession” as “a statement admitting or acknowledging all facts

necessary for conviction of the crime”) (citing Gov’t of Virgin

Islands v. Harris, 938 F.2d 401, 409 n.5 (3d Cir. 1991)). Without

more, Hill’s statement that he would confess is insufficient to

create probable cause, and accordingly, cannot be the basis for

finding that Rogers was acting as an advocate rather than an

investigator during his meeting with Hill. 

could not do on summary judgment. Because we cannot

resolve the absolute immunity question without resolving

this factual dispute, we do not have jurisdiction over Hill’s

appeal of that issue.2

Rogers’s qualified immunity claim also depends on

disputed issues of fact. A prosecutor is entitled to qualified

immunity if his or her “actions did not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Viilo v. Eyre, 547

F.3d 707, 709 (7th Cir. 2008) (citation and internal quotation

marks omitted). In essence, Rogers’s argument is that there
10 No. 09-1878

was no legitimate basis for a finding that Rogers coerced

Hill; thus, Hill was not deprived of a constitutional right.

But this argument faces the same problem as Rogers’s

appeal based on absolute immunity in that its resolution

depends on facts that the district court has properly

determined to be in dispute: the extent to which Rogers

was involved in coercing Hill’s confession. And because we

cannot determine whether Rogers coerced Hill’s confession

without resolving the discrepancies between Hill’s and

Rogers’s accounts of the events, we lack jurisdiction to

consider Rogers’s qualified immunity claim on interlocutory appeal. See White v. Gerardot, 509 F.3d 829, 835 (7th Cir.

2007) (“We do not have jurisdiction when, as here, all of

the arguments made by the party seeking to invoke our

jurisdiction are dependent upon, and inseparable from,

disputed facts.”); Via v. LaGrand, 469 F.3d 618, 624 (7th Cir.

2006) (“[U]nder Johnson and its progeny, this court lacks

interlocutory jurisdiction to review the record to determine

whether the district court erred in finding that a genuine

issue of material fact exists.”).

III. CONCLUSION

Because we lack jurisdiction, the appeal is DISMISSED.

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