In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-1253

MICHAEL EVANS,

Plaintiff-Appellee,

v.

ANTHONY KATALINIC, FRED HILL,

WILLIAM MOSHER, et al.,

Defendants-Appellants.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 3570—David H. Coar, Judge.

____________

ARGUED APRIL 5, 2006—DECIDED APRIL 26, 2006

____________

Before EVANS, WILLIAMS, and SYKES, Circuit Judges.

EVANS, Circuit Judge. Almost 30 years ago, Michael

Evans was convicted of abducting, raping, and killing

9-year-old Lisa Cabassa. The conviction, which was based in

large part on the testimony of a single “eyewitness,” was

eventually vacated after DNA testing proved Evans innocent. He has sued the City of Chicago and a number of

Chicago police officers, claiming that they conspired to

falsely convict him by pressuring the witness to identify

him and by withholding evidence that undermined the

witness’s credibility. The police officer defendants moved for

summary judgment, based in part on a defense of qualified

immunity. The motion was denied and this interlocutory
2 No. 06-1253

appeal followed, as permitted under Mitchell v. Forsyth,

472 U.S. 511 (1985).

The witness, Judy Januszewski, was a neighbor and

acquaintance of both Lisa Cabassa and Michael Evans—

Lisa and her children were playmates, while Evans was

friends with one of her coworkers at a nearby real-estate

office. Walking home from work on the evening of

January 14, 1976, Januszewski reportedly saw some

young black men struggling with a young girl. She ran

home and for 4 days told no one what she had seen, even

after learning that Lisa Cabassa had been killed. On the

fifth day, she contacted a reward hotline that offered $5,000

for information about Lisa’s death. The hotline alerted the

police, who took Januszewski to the station for questioning.

She described to them what she had witnessed and helped

produce a composite sketch of the suspects. She initially

insisted that she did not recognize the young men she saw

that night, but 5 weeks later she had a change of heart and

gave the police the name of Michael Evans.

Evans was arrested on February 26, 1976, based on

Januszewski’s identification. His counsel moved to suppress

the identification and the arrest, but the court denied the

motion without prejudice (the record does not tell us why).

A bench trial was held, at which Januszewski was the star

witness. Despite various discrepancies between her trial

testimony and her initial statement to the police—she

originally said that she saw two assailants more than 75

feet away at 6:37 p.m.; at trial, it was three men closer than

20 feet away sometime after 8:00—the court deemed her

credible and found Evans guilty. That conviction was

vacated when the court discovered another fact bearing on

the witness’s credibility—she was paid $1,250 in “relocation

expenses” after identifying Evans—that had not been

disclosed to the defendant. Evans was retried before a jury,

this time with codefendant Paul Terry. They were convicted

and sentenced to 200-400 years in prison.
No. 06-1253 3

Twenty-seven years later, after DNA testing had shown

that Evans and Terry were innocent, Evans filed this

lawsuit. (Terry reportedly has his own lawsuit under way in

state court.) Deposing Januszewski in connection with the

suit, Evans got a new perspective on her motivations back

in 1976. She explained that after weeks of insisting to the

police that she did not know the assailants’ names, the

police again brought her to the station, held her there from

morning until late evening locked in a roach-infested

interrogation room with no bathroom, and made veiled

threats about their ability to make people talk. She also

revealed that the police were the first ones to bring up

Evans’s name, asking Januszewski whether he could have

been among the men she saw. None of this was known to

Evans at the time of his trials. Also not known back then

was that Januszewski’s husband, Harry, told the police that

his wife was not trustworthy—she had a history of lying

and petty fraud, as well as poor eyesight—and that the

police not only shrugged off his concerns but detained him

on the day of the trial to prevent him from expressing those

concerns to the prosecutor.

Evans claims that the defendants’ efforts to get

Januszewski to identify him and testify against him, along

with other alleged improprieties, deprived him of due

process. The defendants asserted qualified immunity and

have appealed from the district court’s decision rejecting

that defense. But there’s something odd about the appeal. The point of permitting interlocutory appeals from the

denial of qualified immunity is to allow the appellate court

to determine whether the alleged behavior violated clearly

established law—a purely legal question. See Johnson v.

Jones, 515 U.S. 304, 313-14 (1995); Leaf v. Shelnutt,

400 F.3d 1070, 1078 (7th Cir. 2005). But the defendants

aren’t arguing that the Constitution allows them to coerce

a witness’s testimony and withhold evidence of its falsity,

or that the law on that point was unsettled in 1976. In-
4 No. 06-1253

stead, they argue that Evans doesn’t have a right to assert

such behavior in the first place.

Here’s how their argument works: Evans is claiming that

the police got Januszewski to lie about having seen him

on the evening of January 14, 1976. But that was basically

the theory he presented in the motion he filed before his

first trial asking the court to suppress Januszewski’s

identification of him. That motion was denied; therefore,

the issue has been decided; therefore, he is now collaterally

estopped from raising the issue in this suit.

This is an absurd argument, for any number of

reasons: (1) there is no indication that the court “decided”

the issue when it denied Evans’s motion to suppress—the

motion was denied without prejudice, and there is no

transcript to tell us what was argued or what the court was

thinking; (2) not only were both convictions following the

denial of the motion to suppress vacated upon discovery of

new evidence, but Evans has since received a full

innocence-based pardon from the governor of Illinois and,

we are told, had his criminal record expunged— leaving

precious little upon which preclusion could be based; (3)

Januszewski’s deposition testimony provides additional new

evidence of the defendants’ activities, unknown at the time

of the motion to suppress; and (4) collateral estoppel is an

equitable doctrine, and the equities are entirely in favor of

allowing Evans to proceed with his claim. (On the requirements for invoking collateral estoppel, see generally

Sornberger v. City of Knoxville, Ill., 434 F.3d 1006, 1020-23

(7th Cir. 2006).)

The defendants insist that Illinois law holds otherwise.

They cite People v. Enis, 645 N.E.2d 856, 864 (Ill.

1994): “Where a defendant’s conviction has been reversed

for trial error, and the cause is remanded for a new trial,

the doctrine of collateral estoppel bars the relitigation of

a pre-trial ruling, such as a motion to suppress, unless
No. 06-1253 5

the defendant offers additional evidence or there are

other special circumstances.” The formulation is problematic—the principle limiting relitigation of an issue in a later

stage of a single proceeding (which is what Enis is about) is

law of the case, not collateral estoppel. See Rekhi v.

Wildwood Industries, 61 F.3d 1313, 1317 (7th Cir. 1995). In

any event, the present case lacks neither additional evidence nor special circumstances. Even by Enis’s terms,

there’s no estoppel here.

The defendants’ remaining argument—that Evans waived

his claim against them by not pursuing it back in the

1970s—is too ridiculous to merit comment. We AFFIRM the

district court’s denial of the defendants’ motion for summary judgment and REMAND the case for further proceedings. Costs are awarded to the appellee.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-26-06