## In the 

# United States Court of Appeals

For the Seventh Circuit

____________

No. 06-3401

M ICHAELE VANS

, Plaintiff-Appellant,

v.

C ITY OFC HICAGO , A NTHONYK ATALINIC , et al.,

Defendants-Appellees.

____________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 04 C 3570— David H. Coar, Judge.

____________ ARGUED S EPTEMBER 18, 2007—D ECIDED J ANUARY 23, 2008

____________

Before E VANS , W ILLIAMS , and S YKES

, Circuit Judges

.
E VANS

, Circuit Judge . This is the second time we are considering Michael Evans’ case against the City of Chicago and several of its polic e officers alleging that thedefendants conspired to falsely convict him of the abduction, rape, and murder of 9-year-old Lisa Cabassa 31 years ago. In 2006, we affirmed the district court’s denial of the police officer defendants ’ motion for summary judgment based on their claim of qualified immunity. Evans v.
Katalinic , 445 F.3d 953 (7th Cir. 2006). Now, after a jury returned a verdict for the City and its officers, we
consider several trial-related rulings on Mr. Evans’ appeal. In particular, we review whether the district court’s2 No. 06-3401

1 In 2002, the Circuit Court of Cook County appointed a specialprosecutor “to investigate allegations of torture, perjury, obstruction of justice, conspiracy to obstruct justice, and other offenses by police officers under the command of Jon Burge at Area 2 and Area 3 Headquarters in the city of Chicago during the period from 1973 to the present.” (The Cabassa investigation fell within the applicable area and time period but was not under (continued...) decision shortly before trial both to allow several officers who had declined all previous discovery requests on Fifth Amendment grounds to testify andto exclude evidence of their prior silence is consistent with Harris v. City of Chicago , 266 F.3d 750 (7th Cir. 2001).

Twenty-seven years after hi s conviction, DNA testing established that neither Evans nor his co-defendant, Paul Terry, was the source of semen found on Lisa Cabassa’s body. Their convictions, based in significant part on the testimony of a woman named Judy Januszewski, were eventually vacated. The st ate’s attorney declined to reprosecute and Governor Rod Blagojevich subsequently pardoned Evans (and Terry) on the basis of innocence.

In 2004, Evans filed this suit pursuant to 42 U.S.C. § 1983, claiming that the police officers’ efforts to get Januszewski to identify and testify against him, along with other alleged improprieties, deprived him of due process. (Our 2006 decision contains a full discussion of these facts, so we will not repeat them here.)

Back in 2004, Evans sought to depose the defendant
officers. The officers instea d moved for a protective order, arguing that they should not ha ve to be deposed in light of an ongoing investigation by a special prosecutor into certain abuses committed by police officers in their areaheadquarters around the time of the Cabassa investigation. 1 Acknowledging that the C abassa case may have beenNo. 06-3401 3

1 (...continued)Burge’s command.) During the investigation, the special prosecutor subpoenaed 40 Chicago police officers, including three of the named defendants in this case (Dignan, Hill, and Katalinic), to testify before a special grand jury. Most of the officers refused to testify on Fifth Amendment grounds. In April 2006, the special prosecutor completed his investigation. His July 19, 2006, report concluded that the statute of limitations had run. within the special prosecutor’ s investigation—an issue the parties still debate—Magistrate Judge Schenkier gave the officers until January 31, 2005 (mid-way through discovery) to decide whether to participate in discovery or assert a privilege. WhenJanuary arrived, Officers Dignan, DiGiacomo, Hill, Ka talinic, McKenna, Leracz, Ryan, and Swick (the “5A officers”) took the same position: all declined to te stify, asserting their rights
under the Fifth Amendment.

On November 22, 2005, after fact discovery had closed
but before the close of all discovery, Katalinic changed
his mind and offered to waive his Fifth Amendment privilege. He then filed an amended answer and amended discovery responses. In the final pretrial order, filed on January 13, 2006, the defendants listed Katalinic as a
“will call” witness.

On January 14, 2006, Evans moved to bar the testimony
of the 5A officers. He ackn owledged that Katalinic was an “arguable exception” bu t maintained that Katalinichad to move to reopen discovery and seek a new deposition. On January 16, Katalinic so moved. On January 18 (12 days before the scheduled trial), the other 5A officers requested similar treatment if the special prosecutor’s report vitiated their concerns about self-incrimination. The case was then stayed until May 1 during the qualified immunity appeal.4 No. 06-3401

The 5A officers renewed their request to testify on May 16, 2006, maintaining that the forthcoming release of the special prosecutor’s re port would allow them to reevaluate their position. They offered to respond to discovery, make themselves av ailable for depositions, and give Evans additional follow- up time if they decided to testify. Evans opposed this motion, arguing that such relief would effectively deny him the benefits of discovery.

On May 19, 2006, District Judge David Coar rejected the5A officers’ request, saying that they had “made a calculated determination, and [would] be bound by their determination.” Despite this statement, Judge Coar expressly reserved ruling and allowed th e parties to brief the issue.

On June 2, 2006, Judge Coar took up the issue again. This time he sided with the 5A officers. Regarding Katalinic, Judge Coar ruled that he had “made a more timely request” and therefore could testify if he answered all written discovery and appeared for a deposition within 10 days. As to the other 5A officers, Judge Coar found that they had not “acted timely” and that “there is prejudice.” However, Judge Coar gave them the same opportunity to testify under the same conditions as
Katalinic. Evans thenrequested that, if the 5A officers decided to testify, they give an explanation regarding their decision, considering th at the special prosecutor’sreport still had not been issued (although his investigation recently had ended). Evan s also asked for the opportunity to object based on the officers’ justification. JudgeCoar responded that Evans’ counsel could make whatever objections he wanted, but the schedule would stand.

On June 5, 2006, Evans offered to waive punitive damages against any 5A officer who agreed not to testify.No. 06-3401 5

2 Dignan later tried to waive his Fifth Amendment privilege and testify, but Judge Coar made him stick to his deal.

3 The redepositions were heated to say the least. The controversy seems to have revolved around the presence of Flint Taylor, Paul Terry’s attorney, who was one of Evans’ trial counsel but not an attorney of record at the time. A ccording to the 5A officers, Evans “insisted” on Taylor’s attendance and “refused” to proceed without him. Evans, on the other hand, claims that Taylor had sat in on depositions previously without objection and that several 5A officers unjustifiably “walked out” on their redepositions. Dignan accepted Evans’ offer. 2 The other officers chose to testify, serving Evans with written discovery and submitting to redepositions, which were completed by July 8. 3

On July 6, 2006, Evans submitted a motion requesting
that the 5A officers either be defaulted or bound to theirprior privilege assertions. The 5A officers filed a crossmotion to bar any mention of their prior Fifth Amendment assertions. Judge Coar took up both motions on July 11, 2006, just before opening statements. In a brief ruling, Judge Coar denied Evans’ motion and granted the officers’. Thus, Evans’ counsel was barred at trial from making any reference to the 5A officers’ prior invocation of their Fifth Amendment privilege.

That same day, Judge Coar also ruled on the defendants’ motion to bar the testimony of Dignan, the officer who accepted Evans’ offer and wo uld be asserting his Fifth Amendment rights in response to all questions at trial. Instead of allowing Evans to call Dignan to the stand, Judge Coar ruled that he would instruct the jury that Dignan had refused to answer questions about the case and that they could draw an adverse inference from
his refusal to take the stand.6 No. 06-3401

Finally, near the end of the trial, Judge Coar ruled on Evans’ proposed instructions , verdict form, and specialinterrogatory allowing the jury to find for him it if determined that his rights were violated by “any” City of Chicago employee “other” thanthe named officers. Judge Coar rejected this language as confusing and beyond thejury’s responsibility. However, he adopted Evans’ proposed conspiracy instructio n, providing for liability if “at least one defendant acting voluntarily and in concert with at least one other pers on” violated Evans’ rights.

The case went to the jury on four claims: federal due process, conspiracy, and failure to intervene claims, and a state law malicious prosecution claim. The jury returned a verdict that exonerated the officers, and on August 8, 2006, Judge Coar granted judgment on the verdict. On August 29, he corrected the judgment to include the City of Chicago. This appeal followed.

Of the three arguments raised on this appeal, 70 percent
of the ink in the briefs is expended on the question of how Judge Coar resolved the thor ny matter of the Fifth Amendment issue regarding the 5Aofficers. We will consider that matter last, after we briefly resolve the two other issues raised by Mr. Evans: the handling of Dignan’s Fifth Amendment issue and the rejection of certain proposed instructions and verdict questions regarding the City’s liability.

Because an adverse inference can be drawn in a civil case when a witness refuses to answer a question on Fifth Amendment grounds, a part y seeking to benefit from the inference always prefer s to maximize and dramatize
the moment. And that’s whatEvans wanted to do: call Dignan as a witness so the ju ry could watch him take theNo. 06-3401 7

4 A witness’s answer could range from “I refuse to answer on the ground that my answer may tend to incriminate me” to the more mundane “On the advice of counsel, I decline to answer.” oath and then decline to an swer a series of questions. 4 Evans’ desire to proceed inthis fashion is certainly understandable. But Judge Coar elected to bring Dignan’s assertion of his Fifth Amendment rights to the jury in a less dramatic fashion, and we can reverse his decision on this point only if it was a clear abuse of his discretion.
See Doe v. Smith , 470 F.3d 331, 341 (7th Cir. 2006). And
this we cannot do.

Evans argues that, under Baxter v. Palmigiano , 425 U.S. 308 (1976), he had a right to call Dignan to the stand solely to invoke his Fifth Amendment privilege. That
claim is too broad. In Baxter , the Supreme Court held
that “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them[.]” Id. at 318. We have interpreted Baxterto mean that the negative inference against a witness
who invokes the Fifth Amendment in a civil case is permissive, not required. Daniels v. Pipefitters’ Ass’n
Local Union No. 597, 983 F.2d 800, 802 (7th Cir. 1993).

The situation presented here was rather unique. Evans candidly admits that he was “pleased” when Detective Dignan accepted his offer to rid himself of the punitive damage claim against him in exchange for a promise to continue to assert his Fifth Amendment privilege. Given this rather unusual scenario, it would be difficult to conclude that Judge Coar abused his discretion by not embracing this situation for its maximum effect.

The judge instructed the juro rs that they could draw an adverse inference as to liability based on Dignan’s asser-8 No. 06-3401

tion of the Fifth Amendment to questions about the case.
There is no reason to think that the jurors ignored the instructions or assumed that Dignan was not askedquestions relevant to Evans’ claims. Indeed, during closing argument, Evans’ counsel articulated specific questions that Dignan refused to answer, such as, “did you conspire to frame Michael Evans with the other defendants?” The jury’s verdict in dicates that it declined to draw a negative inference from Dignan’s assertion of his Fifth Amendment rights. Given this state of affairs, we find no error in how Judge Coar decided to resolve the
issue.

We turn next to the claim that Evans’ proposed instructions, verdict form, and special interrogatory regarding the City of Chicago’s liability were wrongly rejected. We review decisions regarding instructions and the like for
an abuse of discretion. Latino Foods Marketers, LLC v. Olé Mexican Foods, Inc. , 407 F.3d 876, 880 (7th Cir. 2005).

Evans’ instructions, verdict form, and special interrogatory concerned an agreed-upon stipulation that the City would accept judgment against it “if and only if the
finder of fact in this ca se finds that City employees violated plaintiff ’s constitutional rights as alleged in the first amended complaint.” Thus , the City waived its right
under Monell v. New York City Department of Social
Services not to be held liable in damages without proof that the City by its “policy or custom” caused the alleged constitutional violation. 436 U.S. 658, 694 (1978). Evans’ proposed instruction allowed the jury to find for him if it determined that his rights were violated by “any other” City of Chicago empl oyee (that is, other than the named defendants). Judge Coar rejected this language but adopted Evans’ proposed conspiracy instruction, providing for liability if “at least one defendant acting voluntarily and in concert with at least one other person” violated Evans’ rights.No. 06-3401 9

5 Evans’ initial complaint included “unknowns,” but his first amended complaint substituted Officers Ryan and Swick. Evans argues that the omi ssion of his proposed language created a “gap” in liability such that he was not allowed to prove his Monellclaims. We disagree. Judge Coar rejected Evans’ proposed language because he thought it would confuse the jury and went beyond its responsibility: “[T]his jury is only concerned about what the named defendants did. As to unknown other city employees, this jury will not be asked to cast a verdict with respect to them, and they could not cast a verdict with respect to them.” Indeed, because Evans’ first amended complaint did not name unknown officers 5 or the estates of deceased office rs as defendants, asking the jury to pass judgment solelyon “other” City employees was not appropriate. Any act committed by both named
defendants and“others” was covered by the conspiracy instruction. The jury’s verdict meant that no person— known, unknown, living, or de ceased—conspired with any named defendant to violate Evans’ rights. There was no “gap” in liability.

Evans also maintains that he was entitled to his proposed instruction under the agreed-upon stipulation. This argument fails as we ll. The stipulation’s plain language does not permit recovery upon a showing that “any” City employee violated Evans’ rights, just those employees “as alleged in the first amended complaint.” As noted, Evans’ first amended complaint did not name
unknown officers or the esta tes of deceased officers as
defendants. He therefore wa s not entitled to his proposed instruction under the stipulation.

Evans lastly cites Kunz v. City of Chicago , No. 01 C 1753 (N.D. Ill. filed Mar. 12, 2001), and Bond v. Utreras , No. 04 C 2617 (N.D. Ill. filed Apr. 2, 2004) in support of his10 No. 06-3401

6 One of Evans’ counsel in this case was also Kunz’s counsel in
that case. position. These cases ar e distinguishable. In Kunz

, 6Kunz filed an amended complaint naming “other unknown Chicago police officers” as de fendants after discovering that the proposed stipulation did not include them, andthe City amended its stipulation accordingly. By contrast, Evans’ amended complaint did not name unknown
officers as defendants. In Bond , Bond objected to the City’s proposed stipulation, and the City agreed to broaden it. Here, although Evan s initially objected to the stipulation, he never asked the City to amend it and eventually accepted it as proposed. Judge Coar therefore
did not abuse his discretion inrejecting Evans’ instruction.

We finally approach the main event: whether Judge Coar erred in allowing the 5A officers to withdraw their privilege and testify—while simultaneously excluding evidence of their prior silence if they were deposed prior
to trial. We review a district court’s decision to allow withdrawal of a privilege fo r an abuse of discretion. See United States v. 4003-4005 5th Ave., Brooklyn, NY , 55 F.3d 78, 85 (2d Cir. 1995) (“[A]s long as a trial court
considers the relevant factor s and acts with moderation to accommodate both a litigant’s valid Fifth Amendment interests and the opposing pa rties’ needs . . . we will
not disturb the measures used by that court in the exercise of its discretion.”). Th e same standard applies to a court’s exclusion of evidence, including evidence of privilege, see Harris v. City of Chicago , 266 F.3d 750, 755 (7thCir. 2001) (finding an abuse of discretion where the district court precluded evidence of prior silence after defendants evaded all discovery), and its treatment of alleged discovery abuses. Johnson v. J.B. Hunt Transp., Inc. , 280 F.3d 1125, 1130-31 (7th Cir. 2002).No. 06-3401 11

7 We refer the reader to footnote 3 where we noted the “heated” nature of the redepositions. While we agree with the dissent that the redepositions did not go smoothly, we believe that Judge Coar was in a far better position than we are to evaluate the parties’ motives, and so we defer to his conclusion that the officers eventually satisfied the conditions. We now recall, in some deta il, the events that brought
this issue to the fore. Five weeks before trial, Judge Coar ruled that, despite having sat out discovery on Fifth Amendment grounds, the 5A officers could testify, if they met certain conditions. He explained his decision as
follows:

I don’t think that the [5A o fficers] have acted timely, and there is prejudice. Desp ite what the police officer defendants say, I think th ere is prejudice. However, I’m going to give them the same opportunity [as Katalinic]. If they wish to te stify, they have to declare that by Wednesday, provide answers to all outstanding discovery, and appear for a deposition within 10 days.

The 5A officers met the three conditions laid down by the judge. 7

Just before the start of the trial, Judge Coar granted the 5A officers’ request to excl ude evidence of their priorsilence. He also rejected Evans’ request to impose discovery sanctions for bad fa ith. His ruling was brief:

Police officers’ motion in limine to bar adverse inference and reference to defendants taking the 5th
Amendment. It’s denied—I mean, I’m sorry. The motion in limine is granted.

Now, we can also address this motion, the plaintiff’s motion with respect to bad faith. That motion is denied. There may be a way to deal with that. This is not the way to deal with it.12 No. 06-3401

We first address Judge Coar’s decision not to imposediscovery sanctions for what Evans says was a badfaith invocation of the Fifth Amendment. “To be privileged by the Fifth Amendment to re fuse to answer a question, the answer one would give if one did answer it (and answer it truthfully) must have sometendency to subject the person being asked the question to criminal liability.” In re High Fructose Corn Syrup Antitrust Litig.

, 295 F.3d 651, 663-64 (7th Cir. 2002). A district court has the ability to dismiss a case orto enter default judgments against parties who refuse to comply with discovery
orders. SeeFed. R. Civ. P. 37(b)(2)(C). However, “[t]his drastic sanction requires a showing of ‘willfulness, bad faith, or fault’ on the part of the disobedient party, but . . .
is otherwise within the di scretion of the court.” Poulos v. Naas Foods, Inc. , 959 F.2d 69, 75 (7th Cir. 1992) (internal citation omitted).

The record supports Judge Coar’s decision to deny sanctions. Specifically, Judge Coar reasonably could
have concluded that the offi cers were not “gaming” the system but rather were concerned about the special prosecutor’s investigation, wh ich was only recently completed when they decided to testify. When asked to explain why they invoked th e Fifth Amendment in this case, three of the officers (Hill, Katalinic, and McKenna) indicated that they made the decision upon the advice of their attorneys after the sp ecial prosecutor contacted them. Ryan, who did not consult with counsel, said that he thought that the special prose cutor’s case wa s “broad” and did not know if he was a target. McKenna also stated that he had been told by one of Evans’ trial counsel (or, at least, in that counsel’s presence) that if he answered questions about the Cabassa investigation, he would waive his right to assert th e privilege in response toNo. 06-3401 13

8 Evans eventually dismissed DiGiacomo and Swick, so we will not consider their testimony. questions about other investigations. 8These reasons indicate a good-faith invocati on of the Fifth Amendment.

Nevertheless, Evans maintains that the 5A officers explicitly admittedin their redepositions that no good-faith
basis ever existed to invoke their Fifth Amendment privilege. Read literally and without context, some testimony may indicate as much. However, it is clear that several of the officers were confused by Evans’ counsel’s questions on this i ssue. Katalinic’s re deposition provides a good example:

Q: All right. What was th e factual basis for a good
faith basis to believe that truthful answers about the Cabassa investigation could incriminate you, sir?

[Objections to form raised.]

The Witness: I don’t understand the question. I’m

sorry.
Q: Was there any good faith basis for you to believe that if you gave truthful answers about what you did in the Cabassa investigation, you could incriminate yourself?

[Same objection and objection that question may call for a legal conclusion raised.]

The Witness: I did noth ing wrong in this case.

Q: Are you aware of any facts that would suggest that you could incriminate yourself if you testified truthfully about them?

The Witness: I didn’t do anything wrong in this
case. I don’t—14 No. 06-3401

As this segment illustrates, the officers seemed to think that they were being asked if they did anythingwrong during the Cabassa investigation and, not surprisingly, answered “no.” Ho wever, denying wrongdoing is different than admitting that there was no basis for invoking the Fifth Amendmen t. Because there was evidence that the officers held a reasonable belief that they could be targets of th e special prosecutor’s investigation, we cannot say that Judge Coar abused his discretion in declining to im pose discovery sanctions.

The more difficult question is whether Judge Coar’s
decision bothto allow the 5A officers to testify andto exclude evidence of their prior silence is consistent
with our decision in Harris v. City of Chicago

.
In Harris , the plaintiff brought a § 1983 claim against an arresting officer, Alex Ramos, and the City of Chicago, alleging federal and state law malicious prosecution. During discovery, Ramos refused to respond to any discovery requests, instead invoking his Fifth Amendment privilege. At trial, however, Ramos answered all questions posed to him, an d all evidence of his priorsilence was excluded. After a jury verdict for the defendants and a denied motion for a new trial, Harris appealed, arguing that Ramos was allowed to avoid the discovery process altogether. We reversed and remanded
for a new trial. Because Ramos did not abandon his Fifth Amendment privilege until “just prior to trial,” theprobative value of his prior silence was high and outweighed its prejudicial effect. Harris , 266 F.3d at 755. Therefore, “it was error for the district court to exclude Ramos’s prior silence because the effect of such a rulingwould be tantamount to allowing Ramos to avoid discovery altogether.” Id. at 754. We concluded that the
district court should have either bound Ramos to his prior privilege assertions or allowed Harris to impeach him with his prior silence. Id.No. 06-3401 15

9 In their brief, the defendants waste a lot of time arguingthat the 5A officers acted timely and that there was no prejudice. These are baffling claims. Not only had Evans been deprived of alldiscovery from the 5A officers until Judge Coar’s ruling, but the court made specific findings of untimeliness and prejudice

.

When he permitted the 5A officers to waive their privilege and testify, Judge Coar made specific Harris findings. First, he found that, with th e exception of Katalinic, the 5A officers had not “acted timely.” He also twice stated that there was prejudice from the officers’ late request. 9 Thus, Judge Coar explicitly determined that Harris applied to the 5A officers’ situation and decided to let them testify. However, in stead of allowing Evans to impeach the 5A officers with their prior silence, he ordered
the officers to answer all discovery requests and submit to redepositions before trial.

There are two ways to view Judge Coar’s decision: (1) a misapplication of law, directly contradicting Harris by refusing to admit evidence of prior silence after a finding of untimeliness, or (2) a di scretionary ruling, attempting to cure the inadequate-discovery prejudice by providing a remedy that was not available in Harris . This is a close call because Judge Coar did not explicitly state that he was attempting to cure th e prejudice when he allowed the 5A officers to testify. However, the fact that Judge Coar allowed the parties to brief the issue and then made specific Harris findings shows that he was exercising
his discretion. Cf. Carr v. O’Leary , 167 F.3d 1124, 1127 (7th Cir. 1999) (“[A] discretionary ruling . . . cannot be upheld when there is no indi cation that the judge exercised discretion.”). Becaus e Judge Coar was exercising his discretion, we view his ruling as an attempt to cure the prejudice. And we “will not reverse if we merely
conclude that we would have reached a different decision16 No. 06-3401

10 This does not mean, as the dissent suggests, that “[the fact
situation in Harris ] is the only situation where sanctions are appropriate.” On the contrary, had the district judge awardedsanctions here, we also may have found that decision appropriate under the rule announced in Harris . But because that question is not before us today, we disagree with the dissent
that our decision is “too narrow” and “inconsistent” with Gutierrez-Rodriguez v. Cartagena , 882 F.2d 553 (1st Cir. 1989) (affirming the district court’s de cision to bar an officer from testifying where he invoked his Fifth Amendment privilege during discovery but changed his mind one month before trial). if asked to consider the issu e in the first instance[.]” Hall v. Norfolk S. Ry. Co. , 469 F.3d 590, 594 (7th Cir. 2006).

Judge Coar reasonably could have determined that ordering additional discovery cured any prejudice. The trial had not yet begun when the officers waived the privilege, which gave them time to provide amended answers to all discovery and a ppear for redepositions. This fact distinguishes Harris because, there, the defendant made no attempt to amend or supplement his interrogatory responses, produce an y documents, or waive his Fifth Amendment privilege prior to trial. 266 F.3d at 753- 54. Thus, the plaintiff in Harris was forced to question the
officer at trial “without the benefit of anydiscovery,” which severely hindered his ability to formulate a trial strategy.
Id. at 755 (emphasis added). Because there was no opportunity to order additional discovery after the privilege was waived, the adeq uacy of such a remedy was never
discussed. Neverthe less, we interpret Harris to imply that, if additional discovery alleviates the prejudice from an untimely request to testify, the district court mayexclude evidence of prior silence be cause “the effect of such a ruling would [no longer] be tantamount to allowing [a party] to avoid discovery altogether.” Id. at 754. 10

We have some concerns that ordering redepositions
5 weeks before the scheduled start of the trial was notNo. 06-3401 17

enough to cure the prejudice in this case. Indeed, the primary remedy that Evans now seeks is a new trial to provide him with more time fo r fact and expert discovery.Notably, however, when Judge Coar ruled that the officers would be allowed to testify, Evans did not seek a continuance. He only asked for an explanation from theofficers about their change of heart and for the opportunity to object based on th at explanation. Evans did file several motions on the privilege issue after Judge Coar’sruling, but these motions sought to bind, bar, and default the officers—relief that Judge Coar already had partially denied—not to obta in additional time for discovery.
Evans offers two explanatio ns for his decision not to ask for more time. First, he maintains that he did not seek more time because he was expecting to impeach the officers with their prior silence under Harris . But, because Judge Coar had not yet ruled on that issue, Evans
should not have assumed th at the court would see the issue his way. In addition, Magistrate Judge Schenkier indicated that the admissibility of the prior silence was an open question, giving Evan s further notice that Judge Coar might not allow questions to be asked of the officers regarding their prior silence.

Second, Evans argues that asking for more time would have been futile. However, the record indicates otherwise. Earlier in the proceedings, Judge Coar stated that he would grant what he believed to be an agreed-upon motion for postponement. He later denied the motion only because Evans did not agree to it. Closer to trial, Judge Coar did deny requests for continuances for scheduling conflicts and expressed a strong desire to stick with the scheduled start date, but he never rejected postponing18 No. 06-3401

11 The dissent misconstrues this sentence as stating that “the district judge merely denied motions to continue based on ‘scheduling conflicts.’ ” (Emphasi s added.) On the contrary, we agree that the district court seemed disinclined to move the trial date. But, we do not agree that his comments, taken as awhole, clearly show that filing a continuance motion for additional discovery would have been futile. the trial for Evans’ additional discovery. 11 Indeed, Judge Coar never had the opportunityto rule on such a motion
because Evans never filed one.

In sum, we reject Evans’ claim that three of Judge Coar’s rulings entitle him to a new trial. We specifically find that, by ordering additional discovery, Judge Coar sought to alleviate the prejudice from the officers’ untimely request to testify—a remedy that was not available to
the district court in Harris . The decision to grant such aremedy while excluding evidence of prior silence is discretionary, and we cannot say that Judge Coar abused his discretion in this case. We might well have reached
a different decision if asked to consider the matter in the first instance, but that—substituting our judgment for that of the trial judge onthe firing line—is something we are not permitted to do.

Before leaving, we wish to comment on the dissent’s claim that our opinion, which we think is consistent with

Harris , “ratifies” a “neat maneuver” by the police officer defendants. We disagree. It does not appear to us that the defendants were gaming the system. Katalinic moved to be permitted to wi thdraw his refusal to testify
in November of 2005. The other officers followed suit in January of 2006, around the time the special prosecutor was wrapping up his probe. In June, 5 weeks before
the scheduled start of the tr ial, Evans offered to waive claims for punitive damages against any officer whoNo. 06-3401 19

would stick to his guns and continue to decline to testify at the trial (this, as we discussed, was the offer that Officer Dignan accepted and wa s not allowed to repudiate).
We fail to see how these events , unfolding as they did, can accurately be described as a “neat maneuver” by the
officers. If there was a “neat maneuver” here (and we havenothing against “neat maneuvers” as many good lawyers—like Evans’ savvy counsel in this case—try to use them), it was more likely the offer to waive punitive damages.

Finally, in the last paragraph of her dissent, our colleague notes that Evans “presented substantial evidence of disturbing police malfeasa nce” in this case. We certainly agree that had the ju ry gone the other way, itwould be difficult to imagine a scenario where its verdict could be set aside. But a jury verdict for the plaintiff, if the defendants were not permitted to testify aftersaying they wanted to do so before the trial was scheduled to start, might well have presented significant problems on appeal. The clos er question was whether the jury should have heard that the defendants invoked their rights under the Fifth Amendment. Sure, that might have helped Evans’ case, but to what extent is questionable. The jury knew that Office Dignan invoked the Fifth Amendment, but he was exonerated. Had the other officers’ prior invocation of rights been laid before the jury, the officers would have certainly explained that they wanted to speak but, inlight of the special prosecutor’s inquiry, they were advi sed by their lawyers to take the Fifth. Their lawyers would have most certainly been called to the stand to say they gave that advice to their clients. How much, if any, significance a jury might assign to a situation like this is unclear, but our guess, under the circumstances of this case, is that it would not
have been substantial.

In closing, we note that what happened to Mr. Evans—his wrongful conviction and imprisonment for a20 No. 06-3401

12 On November 25, 2007, the New York Times reported, after an extensive nationwide study, that 206 convicted defendants (205 of them men) have been exonerated, through DNA evidence, since 1989. Fifty-three of the 206 were, like Mr. Evans here,
convicted of murder. substantial portion of his life—was a tragedy of epic proportions. We know all t oo well that separating the guilty from the innocent in our system of justice does not, despite requirements of proof beyond a reasonable doubt, always work to perfection. Sometimes innocent people get convicted. 12 The jury here rejected the view that police misconduct, as opposed to something morebenign, was the reason why Evans was wrongfully convicted. Yet, even without deliberate police misconduct,
we think Illinois shou ld take a close look at its statutory scheme (705 Ill. Comp. Stat. 505/8) for compensating people who have been wron gfully imprisoned. The sum Evans received, apparently $161,000, is, it seems to us, woefully inadequate.

For these reasons, particularly because the deferential (abuse of discretion) standa rd of review we must apply prohibits us from substituting our judgment for the judgment exercised by Judge Coar in this very difficult case, we A FFIRMthe judgment of the district court.

W ILLIAMS

, Circuit Judge , dissenting. What to do when civil litigants invoke the Fifth Amendment’s privilege against self-incrimination during discovery butNo. 06-3401 21

waive the privilege on the eve of trial? This is an important question, for when used tactically a late waiver of the privilege can wreak havoc on an opposing party and create a fundamentally unfair trial. As the Third Circuit put it in SEC v. Graystone Nash, Inc. , 25 F.3d 187, 191 (3d Cir. 1994):

[T]he adverse party—having conducted discovery and prepared the case without th e benefit of knowing the content of the privileged matter—would be placed at a disadvantage. The opportunity to combat the newly available testimony might no longer exist, a new investigation could be required, and orderly trial preparation could be disrupte d. In such circumstances, the belated waiver of the privilege could be unfair.

When a court is faced witha party who waives the Fifth Amendment privilege clos e to trial, it must managethe situation through “means which strike[ ] a fair balance and accommodate[ ] bothparties”—that is, “both a litigant’s valid Fifth Amendm ent interests and the opposing parties’ needs in having the litigation conducted fairly.” United States v. 4003-4005 5th Ave. , 55 F.3d 78, 84- 85 (2d Cir. 1995). If it finds that the system has beengamed for unfair advantage, the court should either prevent the party from waiving the privilege and testifying at trial, or, as a lesser sanc tion, allow the opposing party to impeach the formerly silent party with its prior silence. Harris v. City of Chicago , 266 F.3d 750, 754 (7th Cir. 2001). None of the decisions that I have cited places the burden on the opposing party to move for a continuance in order to mitigate the prejudice it suffers because of the waiving party’s late decision.

This case presents a straightforward legal question: should a district court bar the testimony or allow the impeachment of a party who waives the Fifth Amendment privilege at the last minute, even if the party has left22 No. 06-3401

enough time for somediscovery in the final, hectic moments before trial? Or shou ld these sanctions be reserved for the situation in wh ich a formerly silent party waits until trial has actuallybegun before waiving the privilege, thereby precluding any discovery at all? The majority takes the latter posi tion, implicitly if not explicitly; I take the former.

In reaching its conclusion, the majority relies on Harris

, in which the defendant refused to participate in discovery entirely, and yet was allowed to testify at trial. We reversed the district court’s de cision to allow the testimony and its refusal to let the pl aintiff impeach the defendant with his prior silence, holding that this was “tantamount to allowing [the defendant] to avoid discovery altogether.” 266 F.3d at 754. The majority leaves the impression that

Harris is not simply one situ ation where sanctions are appropriate—it is the onlysituation where sanctions are appropriate. Some discovery, any discovery—no
matter how crammed or last -minute; no matter what tactical advantage it affords the formerly silent party; no matter that it devastates the opposing party’s trial preparation—remedies the prejudice caused by a late waiver. This reading of Harris is too narrow, and is
inconsistent with the decisi on of our sister circuit in Gutierrez-Rodriguez v. Cartagena , 882 F.2d 553, 576-77 (1st Cir. 1989) (affirming decision barring party from testifying where party invoked Fifth Amendment for six months during discovery, sought to reverse course one month before trial, and offered to submit to discovery in the days just before trial).

Eight of the defendant police officers invoked their Fifth Amendment rights and refused to participate in discovery for a year and a half. Five weeks before trial and well after the period for fact discovery had closed, seven of them asked to be allowed to waive the privilege and testify at trial. The dist rict court specifically foundNo. 06-3401 23

that the waiver was untimely and caused prejudiced to Evans. However, as the majority notes, the district court appears to have given the defendants an opportunity toattempt to cure this prejudice by submitting to depositions within ten days. The seven depositions did not occur within ten days of the district court’s order; instead, they were complete d weeks later, in the nine business days immediately priorto trial. On the first day of trial, after a jury had already been empaneled and just before Evans’s open ing statement, the district court ruled that not only could the officers testify, but Evans could not even impeach them with their prior
silence.

The district court did not provide any explanation for this ruling—which was a bonanza for the defendants—yet the majority would defer to it as a reasonable exercise of discretion. Although we do not know why the district court barred impeachment, the majority assumes that
it must have been because the court believed that the frantic depositions had cured all prejudice to Evans. But the majority does not disc uss at any length how thedistrict court could have reasonably reached this conclusion, because it does not weigh the prejudice to Evans against the potential curative power of the late discovery. I do so below, and I believe that the facts show that the
district court’s decision was unreasonable. I wish to emphasize that while I disa gree with this particular ruling, I certainly understand the position of a very busy trial judge who finally brings to trial a contentious, hardfought case and is faced with multiple motions in limine and discovery disputes—mat ters that are not alwayspresented to a district court with time to spare. Nevertheless, I would announce a rule that a late-waiving party should be penalized no t just when its waiver precludes any discovery at all, but also in a case like this, when its waiver prevents its opponent from a meaningful opportunity to conduct discovery.24 No. 06-3401

Before weighing the prejudice to Evans against the impact of the late discovery, I wish to explain, for context, why the circumstances surround ing the defendants’ waiver suggest that they were milking their Fifth Amendment privilege for as long as possible with the intention of waiving it just before trial. In this regard, the majority
is incorrect when it asse rts at page 18 that after Katalinic moved to waive his privilege in November 2005, the other “officers followed suit in January of 2006, around the time the special prosecutor was wrapping up his probe.” The other defendants did notmove to withdraw their assertion of the privilege in January 2006. Their
exact words at that time were: “ when and if the Special
Prosecutor concludes its invest igation, the defendants who
have elected to take the Fifth maydecide to waive their privilege and testify” (empha sis added). This assertion could hardly have been more equivocal. The defendants did not actually seek to test ify until mid-May 2006, approximately five weeks prior to tr ial. Moreover, it is open to question whether the specia l prosecutor was “wrapping up his probe” in January 2006, as the majority states. (His investigation did not end until April, seeOp. at 2, n.1—and he did not issue his report until July.) The point is, when the officers finally sought to waive the privilege in May, nothing had changed in terms of their potential exposure to criminal liability. The spec ial prosecutor’s report was not yet released, and they ar e not arguing that they knew the special prosecutor’s findings before he announced them. What apparently had changed was that they began to consider just how bad it would look for the seven officers most intimately involved withthe Cabassa investigation torefuse to testify at trial for fear of incriminating themselves.

Now to the prejudice to Evan s from the defendants’ late waiver, beginning with tactic al disadvantage he suffered.
See Harris , 266 F.3d at 755. The defendants sat outNo. 06-3401 25

discovery for months and months, and then, after seeing Evans’s entire case unfold, th ey elected to testify. They knew the strengths and weaknesses of his case; they knew where his emphasis lay; theyknew what he would ask them about; they had heard te stimony from not just all of his fact witnesses, but also all of his expert witnesses. Another aspect of the tactical advantage was the effect of the late depositions on Evans’ s trial preparation. This was a massive case, lasting over two years from complaint to jury verdict, with over 150 deposition witnesses and a month-long trial. While the defendants’ lead counsel was busy preparing for that trial in the week before it began, Evans’s lead counsel was personally conducting all seven depositions, which were too cri tical to Evans’s case to be left to a second-chair lawyer . By allowing the defendants to tie up Evans’s lawyer’s fi nal days before trial in thisway, the district court created a serious imbalance between the parties.

Two of the most significant aspects of prejudice Evans
suffered involved a semen test in the 1970s and Evans’s star witness, Frank Laverty, who died in late 2006. As to the former matter, one of the defendant officers revealed for the first time in a deposi tion five days before trial began that a semen test had been conducted in the 1970s
and had ruled out Evans . Evans contends that he was unable to conduct any follow-up discovery on this matter by seeking verification from other witnesses or demanding the production of test results. The defendants’efforts to get around this revelation are wholly unconvincing, especially given that Ev ans was ultimate ly exonerated in 2002 based on semen testing. The officer “was most likely mistaken that a test wa s run,” they contend (without citation); they also claim that while semen testing did exist at that time, it was “n ot reliable.” These self-interested and wishy-washy assu rances are no substitute for adversarial probing.26 No. 06-3401

Even more importantly, Evans’s star witness, Frank Laverty, was terminally ill with cancer in 2006. Lavertywas a former Area 2 police officer, and he gave a videotaped deposition that formed one of the centerpieces of
the trial with its insider account of the police abuse committed in Area 2. But because of Laverty’s health, that deposition was taped before the defendant officers were deposed. Evans’s counsel stated at oral argument thatLaverty’s health in the summer of 2006—when the defendants waived their privilege and were deposed—was too poor for another video deposition. That means that in the testimony that the jury heard, Laverty had nothing to say about the defendants’ assertions during their depositions, leaving the impre ssion that there was nothing in those depositions to rebut. The Laverty situation is critical because Evans could not have mitigated this prejudice by seeking a cont inuance. His star witness was too sick to participate in the trial as scheduled, let
alone one at an even later date.

The last-minute depositions di d not cure this prejudice. In this regard, I must disagr ee with the majority that the officers “met the three conditions laid down by the judge” to be allowed to testify. SeeOp. at 11. The district court stated in June 2006, about five weeks before trial, “Ifthey wish to testify, they have to declare that by Wednesday, provide answers to all outstanding discovery, and appear for a deposition within 10 days.” If by “appear for a deposition within 10 days,” the judge meant that the officers could show up for the depositions and then leave without being deposed, then the officers did indeedmeet the condition. But as I read the record, the defendants pushed the depo sitions to the final days before trial. Shortly after the district co urt ordered the redepositions, Evans moved to appoint an addi tional lawyer, Flint Taylor, for help completing this monumental task in such a short amount of time. The defendants objected to Taylor’sNo. 06-3401 27

participation, saying that he would “harass and intimidate” the officers, and they wa lked out of their redepositions. Significantly, the magistrate judge rejected the defendants’ contention about Taylor and added him as counsel several days later. It ’s hard to rule out gamesmanship on either side here, but recall that the defendants created this last-minute situation by deciding to testify so late in the process. If the burden was on any party to complete the depositions quickly, it was on them.

The broader lesson of this discovery dispute is that in a massive, acrimonious lawsuit, deposing seven critical witnesses in the nine days before trial simply cannot go
off without a hitch. The distri ct court should have recognized that the defendants had created an impossible
situation and sanctioned th em by allowing Evans to impeach them with their prior silence.

This leads to the question the majority asks: why didn’t Evans request a continuance? Again, and critically, a continuance would not have alleviated the prejudice inherent in the Frank Laverty situation—more time would not have allowed Laverty, who was dying, to respond to the defendants’ la st-minute depositions. But assuming that a continuance should still matter, the majority suggests that the ti me to request one was June 2006, when the district court ruled that the defendants could testify at trial. That misses the point, for at that time Evans thought the depositions would be completed within ten days, as ordered, rather than in the final moments before trial began. In other words, Evans didn’t know just how prejudicial th e situation would become. The right question is therefore, why didn’t Evans move for a
continuance on the first day of trial , when he learned that he could not even impeach the defendants with their prior silence? For even if it was until then an open question whether Evans coul d impeach, the case law gave him every indication that he would be allowed to28 No. 06-3401

1 The majority states at page 17 that the district judge merely denied motions to continue based on “scheduling conflicts.” Thatis incorrect. To take just two examples, the defendants’ emergency motion to continue the day before trial argued that publicity over the case and the expected release of the special prosecutor’s report would prevent the selection of a fair jury.
And the defendants’ motion to continue filed in November 2005
asked for more time to conduct discovery. by setting out impeachment as the lesser sanction to barring testimony outright. Indeed, in the weeks before trial he was still fighting the preliminary question of
whether the defendants sh ould even be allowed to testify, and Harris suggests that barring their testimony outright was a real option. I’m sure Evans was shocked on the first day of trial whenhe learned that on top of the earlier ruling allowing the defendants to testify, evidence of their prior silence would be inadmissible too.

As to why Evans did not request a continuance on the first day of trial, the majori ty states that the district court would have been receptive to such a request. Again I must disagree. The trial had already begun; the jury was empaneled and opening statements were about to get underway. Moreover, the district judge made it quite clear, especially after the original trial date of January 2006 was disrupted, that he would not push back the
trial. 1 I can understand why: this was a very busy trialjudge balancing a full criminal docket who understandably (and fairly) wanted to move on with a month-long case. By my count, the districtjudge rejected no fewer than four motions to continue the trial, including one a month before trial and one the day befo re trial. On more than one occasion, the judge told counsel in rejecting a motion for continuance things like, “Now gentlemen, don’t waste the paper to file a motion for another extension. It’s not going to happen.” While discussing trial scheduling matters withNo. 06-3401 29

Evans’s counsel a month before trial, the district judge said, “You can make whateverobjections you want, but that’s going to be the schedule .” The judge also said in the final pretrial conference in May 2006, “I won’t have time to try this case for almost a year, so—because of other matters pending—so I’m not go ing to move this trial.”

Evans certainly would have made a better record by requesting a continuance, even if only to have it emphatically denied, but the law does not require a futile act. If it is clear that a motion for continuance would be denied,
the failure to file one d oes not constitute waiver. See United States v. Dellinger , 472 F.2d 340, 371-72 (7th Cir. 1972); cf. United States v. Fish , 34 F.3d 488, 495 (7th Cir. 1994) (failure to seek continuance is not ineffective
assistance of counsel where district court’s statements show that any motion would have been futile); Moody v.
Polk , 408 F.3d 141, 151 (4th Cir. 2005) (same).

But as I’ve noted, because of the prejudice in terms of Laverty’s video deposition, the question of a continuance is a red herring. It was also, for Evans, a Catch-22. When he found out, just before his opening statement, that the defendants would not only be allowed to testify after sitting out discovery, but also avoid impeachment with their silence, Evans was put in an unenviable position.Either he proceeded with the scheduled trial at a significant disadvantage, or he moved to postpone for another year a day in court that was 27 years in the making—one
that the defendants had al ready delayed once with a frivolous interlocutory appeal. See Evans v. City of Chicago , 445 F.3d 953, 955-56 (7th Cir. 2006) (describing defendants’ two arguments as, respectively, “absurd,” and
“too ridiculous to merit co mment”). Since the defendants
created this mess with thei r late waiver, the defendants—not Evans—should have been the ones to faceconsequences for it. But the defendants suffered no consequences at all: they effect ively dodged discovery, got30 No. 06-3401

to testify at trial, and kept the whole thing from the jury. Today’s opinion ratifies that neat maneuver, teaching that when a party waives the privilege so late that its opponent suffers prejudice, it is the opponent , rather than the waiving party, that has to fix the situation. That
is inconsistent with Harris , and it is a bad rule—it encourages gamesmanship, puts the district court in a difficult situation, and undercuts the goal of timely and fair discovery.

As the majority notes, “The jury here rejected the view that police misconduct, as opposed to something morebenign, was the reason why Evans was wrongfully convicted.” SeeOp. at 20. That is true, but it begs the question, would the jury still have reached that decision if it had all the pertinent info rmation? After all, Evans presented substantial evidence of disturbing police malfeasance, including that the defendants repeatedly
coerced and threatened thei r only witness to identify him; that they locked the witness’s husband in a room toprevent him from telling prosecutors about the witness’s eyesight and credibilit y problems; that they lied in saying that the witness re ported threats from Michael
Evans in the weeks after the murder; and that they performed genital inspections on neighborhood boys as a way to pressure them to imp licate Evans (which at least one of the boys did).

The main evidence for the ot her side was the officers’ denials. Knowing that the o fficers were so worried about criminal liability that they re fused to speak in their own defense for a full year and a half might have made all the difference to the jury in choosing whom to believe. The majority thinks otherwise, im plying that since one officer
invoked the Fifth at trial and was nevertheless exonerated, the result would be the same if everyone’s silence came out. This argument is best rejected by analogy. If there was a single moment th at irrevocably changed theNo. 06-3401 31

fortunes of the tobacco industry, it was in April 1994 when the American public saw seven—not one—tobacco company executives raise their right hands and tell Congress that nicotine isn’t addictive and that smoking
doesn’t cause cancer. See Allan M. Brandt, The Cigarette Century: The Rise, Fall, and Deadly Persistence of the Product that Defined America 366-69 (2007). Similarly here, the power of seven silent Chicago Police officers is not, as the majority sugge sts, a matter of one plus six.
Seven is exponentiallygreater than one. Regardless, the point is not what I thin k about the impact of the officers’ prior silence, or wh at my colleagues in the majority think. What matters is what the jury would have thought, had it been given the opportunity to consider
this critical evidence.

I agree with the majority that what happened to Michael Evans was a tragedy: he spent 27 years in prisonfor a crime for which he has been exonerated and pardoned. He deserved justice in his civil trial, but he did not
receive it because the tria l was fundamentally unfair. Accordingly, I respectfully dissent.

A true Copy:

Teste:

________________________________ Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-23-08