In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3401
MICHAEL EVANS,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, ANTHONY KATALINIC, 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 SEPTEMBER 18, 2007—DECIDED JANUARY 23, 2008
____________
Before EVANS, WILLIAMS, and SYKES, Circuit Judges.
EVANS, Circuit Judge. This is the second time we
are considering Michael Evans’ case against the City of
Chicago and several of its police officers alleging that the
defendants conspired to falsely convict him of the abduc-
tion, 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 judg-
ment 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’s
2 No. 06-3401
decision shortly before trial both to allow several officers
who had declined all previous discovery requests on Fifth
Amendment grounds to testify and to 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 his 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 state’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 instead moved for a protective order,
arguing that they should not have to be deposed in light of
an ongoing investigation by a special prosecutor into
certain abuses committed by police officers in their area
headquarters around the time of the Cabassa investiga-
tion.1 Acknowledging that the Cabassa case may have been
1
In 2002, the Circuit Court of Cook County appointed a special
prosecutor “to investigate allegations of torture, perjury, obstruc-
tion 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...)
No. 06-3401 3
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. When January arrived, Officers
Dignan, DiGiacomo, Hill, Katalinic, McKenna, Leracz,
Ryan, and Swick (the “5A officers”) took the same
position: all declined to testify, 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 acknowledged that Katalinic was
an “arguable exception” but maintained that Katalinic
had to move to reopen discovery and seek a new deposi-
tion. 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.
1
(...continued)
Burge’s command.) During the investigation, the special prosecu-
tor 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 re-
fused 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.
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 report would allow them to
reevaluate their position. They offered to respond to
discovery, make themselves available 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 the
5A officers’ request, saying that they had “made a calcu-
lated determination, and [would] be bound by their deter-
mination.” Despite this statement, Judge Coar expressly
reserved ruling and allowed the 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 then requested that, if the 5A officers
decided to testify, they give an explanation regarding
their decision, considering that the special prosecutor’s
report still had not been issued (although his investiga-
tion recently had ended). Evans also asked for the opportu-
nity to object based on the officers’ justification. Judge
Coar responded that Evans’ counsel could make what-
ever 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
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 their
prior privilege assertions. The 5A officers filed a cross-
motion to bar any mention of their prior Fifth Amend-
ment 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 would 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.
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. According 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.
6 No. 06-3401
Finally, near the end of the trial, Judge Coar ruled on
Evans’ proposed instructions, verdict form, and special
interrogatory allowing the jury to find for him it if deter-
mined that his rights were violated by “any” City of
Chicago employee “other” than the named officers. Judge
Coar rejected this language as confusing and beyond the
jury’s responsibility. However, he adopted Evans’ pro-
posed conspiracy instruction, providing for liability if
“at least one defendant acting voluntarily and in concert
with at least one other person” 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 thorny matter of the Fifth Amend-
ment issue regarding the 5A officers. 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 party seeking to benefit from
the inference always prefers to maximize and dramatize
the moment. And that’s what Evans wanted to do: call
Dignan as a witness so the jury could watch him take the
No. 06-3401 7
oath and then decline to answer a series of questions.4
Evans’ desire to proceed in this 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 re-
fuse to testify in response to probative evidence offered
against them[.]” Id. at 318. We have interpreted Baxter to
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 jurors that they could draw an
adverse inference as to liability based on Dignan’s asser-
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.”
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 asked
questions relevant to Evans’ claims. Indeed, during clos-
ing argument, Evans’ counsel articulated specific ques-
tions that Dignan refused to answer, such as, “did you
conspire to frame Michael Evans with the other defen-
dants?” The jury’s verdict indicates 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 instruc-
tions, 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 interroga-
tory concerned an agreed-upon stipulation that the City
would accept judgment against it “if and only if the
finder of fact in this case 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 employee (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
Evans argues that the omission of his proposed lang-
uage created a “gap” in liability such that he was not
allowed to prove his Monell claims. 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 officers5 or
the estates of deceased officers as defendants, asking the
jury to pass judgment solely on “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 deceased—conspired with any
named defendant to violate Evans’ rights. There was no
“gap” in liability.
Evans also maintains that he was entitled to his pro-
posed instruction under the agreed-upon stipulation.
This argument fails as well. 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 estates of deceased officers as
defendants. He therefore was not entitled to his pro-
posed 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 his
5
Evans’ initial complaint included “unknowns,” but his first
amended complaint substituted Officers Ryan and Swick.
10 No. 06-3401
position. These cases are distinguishable. In Kunz,6 Kunz
filed an amended complaint naming “other unknown
Chicago police officers” as defendants after discovering
that the proposed stipulation did not include them, and
the City amended its stipulation accordingly. By con-
trast, 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 Evans 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 in rejecting 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 for 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 factors and acts with moderation
to accommodate both a litigant’s valid Fifth Amendment
interests and the opposing parties’ needs . . . we will
not disturb the measures used by that court in the exer-
cise of its discretion.”). The same standard applies to a
court’s exclusion of evidence, including evidence of privi-
lege, see Harris v. City of Chicago, 266 F.3d 750, 755 (7th
Cir. 2001) (finding an abuse of discretion where the dis-
trict court precluded evidence of prior silence after defen-
dants 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).
6
One of Evans’ counsel in this case was also Kunz’s counsel in
that case.
No. 06-3401 11
We now recall, in some detail, 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 officers] have acted timely,
and there is prejudice. Despite what the police officer
defendants say, I think there is prejudice. However,
I’m going to give them the same opportunity [as
Katalinic]. If they wish to testify, 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 exclude evidence of their prior
silence. He also rejected Evans’ request to impose dis-
covery sanctions for bad faith. His ruling was brief:
Police officers’ motion in limine to bar adverse infer-
ence 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.
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.
12 No. 06-3401
We first address Judge Coar’s decision not to impose
discovery sanctions for what Evans says was a bad-
faith invocation of the Fifth Amendment. “To be privileged
by the Fifth Amendment to refuse to answer a question,
the answer one would give if one did answer it (and
answer it truthfully) must have some tendency to sub-
ject 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 or to enter default judgments
against parties who refuse to comply with discovery
orders. See Fed. 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 discretion 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 officers were not “gaming” the
system but rather were concerned about the special
prosecutor’s investigation, which was only recently com-
pleted when they decided to testify. When asked to
explain why they invoked the 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 special prosecutor contacted
them. Ryan, who did not consult with counsel, said that he
thought that the special prosecutor’s case was “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 the privilege in response to
No. 06-3401 13
questions about other investigations.8 These reasons
indicate a good-faith invocation of the Fifth Amendment.
Nevertheless, Evans maintains that the 5A officers
explicitly admitted in their redepositions that no good-faith
basis ever existed to invoke their Fifth Amendment
privilege. Read literally and without context, some testi-
mony may indicate as much. However, it is clear that
several of the officers were confused by Evans’ counsel’s
questions on this issue. Katalinic’s redeposition provides
a good example:
Q: All right. What was the 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 nothing 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—
8
Evans eventually dismissed DiGiacomo and Swick, so we
will not consider their testimony.
14 No. 06-3401
As this segment illustrates, the officers seemed to think
that they were being asked if they did anything
wrong during the Cabassa investigation and, not sur-
prisingly, answered “no.” However, denying wrongdoing
is different than admitting that there was no basis for
invoking the Fifth Amendment. Because there was evi-
dence that the officers held a reasonable belief that
they could be targets of the special prosecutor’s investi-
gation, we cannot say that Judge Coar abused his dis-
cretion in declining to impose discovery sanctions.
The more difficult question is whether Judge Coar’s
decision both to allow the 5A officers to testify and to
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 Amend-
ment privilege. At trial, however, Ramos answered all
questions posed to him, and all evidence of his prior
silence was excluded. After a jury verdict for the defen-
dants and a denied motion for a new trial, Harris ap-
pealed, 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,” the
probative value of his prior silence was high and out-
weighed 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 ruling
would be tantamount to allowing Ramos to avoid dis-
covery 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
When he permitted the 5A officers to waive their privi-
lege and testify, Judge Coar made specific Harris findings.
First, he found that, with the 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, instead 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 discretionary ruling, attempt-
ing to cure the inadequate-discovery prejudice by provid-
ing 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 the 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 indication that the judge exer-
cised discretion.”). Because 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 decision
9
In their brief, the defendants waste a lot of time arguing
that the 5A officers acted timely and that there was no prej-
udice. These are baffling claims. Not only had Evans been
deprived of all discovery from the 5A officers until Judge Coar’s
ruling, but the court made specific findings of untimeliness
and prejudice.
16 No. 06-3401
if asked to consider the issue 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 appear for redepositions. This
fact distinguishes Harris because, there, the defendant
made no attempt to amend or supplement his interroga-
tory responses, produce any 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 any discovery,” which
severely hindered his ability to formulate a trial strategy.
Id. at 755 (emphasis added). Because there was no op-
portunity to order additional discovery after the privilege
was waived, the adequacy of such a remedy was never
discussed. Nevertheless, we interpret Harris to imply that,
if additional discovery alleviates the prejudice from an
untimely request to testify, the district court may exclude
evidence of prior silence because “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 not
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 awarded
sanctions here, we also may have found that decision appropri-
ate 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 decision to bar an officer from
testifying where he invoked his Fifth Amendment privilege
during discovery but changed his mind one month before trial).
No. 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 for fact and expert discovery.
Notably, however, when Judge Coar ruled that the offi-
cers would be allowed to testify, Evans did not seek a
continuance. He only asked for an explanation from the
officers about their change of heart and for the oppor-
tunity to object based on that explanation. Evans did file
several motions on the privilege issue after Judge Coar’s
ruling, but these motions sought to bind, bar, and de-
fault the officers—relief that Judge Coar already had
partially denied—not to obtain additional time for dis-
covery.
Evans offers two explanations 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, be-
cause Judge Coar had not yet ruled on that issue, Evans
should not have assumed that 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 Evans 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 postponing
18 No. 06-3401
the trial for Evans’ additional discovery.11 Indeed, Judge
Coar never had the opportunity to 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 a
remedy while excluding evidence of prior silence is dis-
cretionary, 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 on the 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 withdraw 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 trial, Evans offered to waive
claims for punitive damages against any officer who
11
The dissent misconstrues this sentence as stating that “the
district judge merely denied motions to continue based on
‘scheduling conflicts.’ ” (Emphasis 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 a
whole, clearly show that filing a continuance motion for addi-
tional discovery would have been futile.
No. 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 was 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 have
nothing against “neat maneuvers” as many good law-
yers—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 col-
league notes that Evans “presented substantial evidence
of disturbing police malfeasance” in this case. We cer-
tainly agree that had the jury gone the other way, it
would be difficult to imagine a scenario where its ver-
dict could be set aside. But a jury verdict for the plain-
tiff, if the defendants were not permitted to testify after
saying they wanted to do so before the trial was sched-
uled to start, might well have presented significant
problems on appeal. The closer 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, in light of the special prosecu-
tor’s inquiry, they were advised 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. Ev-
ans—his wrongful conviction and imprisonment for a
20 No. 06-3401
substantial portion of his life—was a tragedy of epic
proportions. We know all too 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 more
benign, was the reason why Evans was wrongfully con-
victed. Yet, even without deliberate police misconduct,
we think Illinois should take a close look at its statutory
scheme (705 Ill. Comp. Stat. 505/8) for compensating
people who have been wrongfully 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) standard of review we must apply
prohibits us from substituting our judgment for the
judgment exercised by Judge Coar in this very difficult
case, we AFFIRM the judgment of the district court.
WILLIAMS, Circuit Judge, dissenting. What to do
when civil litigants invoke the Fifth Amendment’s privi-
lege against self-incrimination during discovery but
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.
No. 06-3401 21
waive the privilege on the eve of trial? This is an impor-
tant 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 the 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 disrupted. In such circumstances,
the belated waiver of the privilege could be unfair.
When a court is faced with a party who waives the
Fifth Amendment privilege close to trial, it must manage
the situation through “means which strike[ ] a fair bal-
ance and accommodate[ ] both parties”—that is, “both a
litigant’s valid Fifth Amendment interests and the op-
posing 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 been
gamed for unfair advantage, the court should either pre-
vent the party from waiving the privilege and testifying
at trial, or, as a lesser sanction, 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 left
22 No. 06-3401
enough time for some discovery in the final, hectic mo-
ments before trial? Or should these sanctions be re-
served for the situation in which a formerly silent party
waits until trial has actually begun before waiving the
privilege, thereby precluding any discovery at all? The
majority takes the latter position, implicitly if not ex-
plicitly; 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 re-
versed the district court’s decision to allow the testimony
and its refusal to let the plaintiff 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 situation where sanctions are
appropriate—it is the only situation 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 decision 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 district court specifically found
No. 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 to
attempt to cure this prejudice by submitting to deposi-
tions within ten days. The seven depositions did not
occur within ten days of the district court’s order; in-
stead, they were completed weeks later, in the nine
business days immediately prior to trial. On the first
day of trial, after a jury had already been empaneled
and just before Evans’s opening 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 discuss at any length how the
district court could have reasonably reached this conclu-
sion, 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 disagree with this particular
ruling, I certainly understand the position of a very busy
trial judge who finally brings to trial a contentious, hard-
fought case and is faced with multiple motions in limine
and discovery disputes—matters that are not always
presented to a district court with time to spare. Never-
theless, I would announce a rule that a late-waiving
party should be penalized not just when its waiver pre-
cludes 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 surrounding 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 asserts 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 not move 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 investigation, the defendants who
have elected to take the Fifth may decide to waive their
privilege and testify” (emphasis added). This assertion
could hardly have been more equivocal. The defendants did
not actually seek to testify until mid-May 2006, approxi-
mately five weeks prior to trial. Moreover, it is open to
question whether the special prosecutor was “wrapping up
his probe” in January 2006, as the majority states. (His
investigation did not end until April, see Op. 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 special prosecutor’s report was
not yet released, and they are 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 with the Cabassa investigation to
refuse to testify at trial for fear of incriminating them-
selves.
Now to the prejudice to Evans from the defendants’ late
waiver, beginning with tactical disadvantage he suffered.
See Harris, 266 F.3d at 755. The defendants sat out
No. 06-3401 25
discovery for months and months, and then, after seeing
Evans’s entire case unfold, they elected to testify. They
knew the strengths and weaknesses of his case; they knew
where his emphasis lay; they knew what he would ask
them about; they had heard testimony 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 critical to Evans’s case to be
left to a second-chair lawyer. By allowing the defendants
to tie up Evans’s lawyer’s final days before trial in this
way, the district court created a serious imbalance be-
tween 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 deposition 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 demand-
ing the production of test results. The defendants’
efforts to get around this revelation are wholly unconvinc-
ing, especially given that Evans was ultimately exonerated
in 2002 based on semen testing. The officer “was most
likely mistaken that a test was run,” they contend (without
citation); they also claim that while semen testing did
exist at that time, it was “not reliable.” These self-inter-
ested and wishy-washy assurances 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. Laverty
was a former Area 2 police officer, and he gave a video-
taped 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 that
Laverty’s health in the summer of 2006—when the defen-
dants 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 impression that there was noth-
ing in those depositions to rebut. The Laverty situation
is critical because Evans could not have mitigated this
prejudice by seeking a continuance. 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 did not cure this prejudice.
In this regard, I must disagree with the majority that the
officers “met the three conditions laid down by the judge”
to be allowed to testify. See Op. at 11. The district court
stated in June 2006, about five weeks before trial, “If
they wish to testify, they have to declare that by Wed-
nesday, 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 indeed
meet the condition. But as I read the record, the defen-
dants pushed the depositions to the final days before trial.
Shortly after the district court ordered the redepositions,
Evans moved to appoint an additional lawyer, Flint Taylor,
for help completing this monumental task in such a
short amount of time. The defendants objected to Taylor’s
No. 06-3401 27
participation, saying that he would “harass and intimi-
date” the officers, and they walked out of their redeposi-
tions. Significantly, the magistrate judge rejected the
defendants’ contention about Taylor and added him as
counsel several days later. It’s hard to rule out gamesman-
ship 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 district court should have recog-
nized that the defendants had created an impossible
situation and sanctioned them 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’ last-minute depositions. But
assuming that a continuance should still matter, the
majority suggests that the time 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 the 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 could impeach, the case law
gave him every indication that he would be allowed to
28 No. 06-3401
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 should 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 when he 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 majority 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 trial
judge balancing a full criminal docket who understand-
ably (and fairly) wanted to move on with a month-long
case. By my count, the district judge rejected no fewer than
four motions to continue the trial, including one a month
before trial and one the day before 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 with
1
The majority states at page 17 that the district judge merely
denied motions to continue based on “scheduling conflicts.” That
is incorrect. To take just two examples, the defendants’ emer-
gency 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.
No. 06-3401 29
Evans’s counsel a month before trial, the district judge
said, “You can make whatever objections 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 going to move this trial.”
Evans certainly would have made a better record by
requesting a continuance, even if only to have it emphati-
cally 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 does 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 signifi-
cant 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 already delayed once with a
frivolous interlocutory appeal. See Evans v. City of Chi-
cago, 445 F.3d 953, 955-56 (7th Cir. 2006) (describing
defendants’ two arguments as, respectively, “absurd,” and
“too ridiculous to merit comment”). Since the defendants
created this mess with their late waiver, the defen-
dants—not Evans—should have been the ones to face
consequences for it. But the defendants suffered no con-
sequences at all: they effectively dodged discovery, got
30 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 en-
courages 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 more
benign, was the reason why Evans was wrongfully con-
victed.” See Op. at 20. That is true, but it begs the ques-
tion, would the jury still have reached that decision if
it had all the pertinent information? After all, Evans
presented substantial evidence of disturbing police mal-
feasance, including that the defendants repeatedly
coerced and threatened their only witness to identify
him; that they locked the witness’s husband in a room to
prevent him from telling prosecutors about the wit-
ness’s eyesight and credibility problems; that they lied
in saying that the witness reported 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 implicate Evans (which at least
one of the boys did).
The main evidence for the other side was the officers’
denials. Knowing that the officers were so worried about
criminal liability that they refused 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, implying that since one officer
invoked the Fifth at trial and was nevertheless exoner-
ated, 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 that irrevocably changed the
No. 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 suggests, a matter of one plus six.
Seven is exponentially greater than one. Regardless,
the point is not what I think about the impact of the
officers’ prior silence, or what my colleagues in the major-
ity 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 prison
for a crime for which he has been exonerated and par-
doned. He deserved justice in his civil trial, but he did not
receive it because the trial 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