In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1878
H AROLD H ILL,
Plaintiff-Appellee,
v.
C ORDELIA C OPPLESON, personal representative
of M ICHAEL R OGERS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:06-cv-06772—Amy St. Eve, Judge.
____________
A RGUED O CTOBER 28, 2009—D ECIDED N OVEMBER 22, 2010
____________
Before R IPPLE, W ILLIAMS and T INDER, Circuit Judges.
W ILLIAMS, Circuit Judge. Over a decade after being
convicted of sexual assault and homicide, Harold Hill was
exonerated by DNA evidence. Hill filed suit against the
City of Chicago, a number of its police officers, and
Michael Rogers, an assistant state’s attorney, alleging
various constitutional violations, including a claim that
several detectives and Rogers had coerced him to falsely
confess to the crimes in violation of the Fifth Amendment.
2 No. 09-1878
Rogers filed a motion for summary judgment asserting that
he was immune from suit because of his prosecutorial
status. The district court rejected this argument, and
Rogers appeals. Because we cannot resolve the im-
munity issue without resolving disputed questions of
fact regarding Rogers’s role in this case, we dismiss
the appeal for lack of jurisdiction.
I. BACKGROUND
On October 14, 1990, Kathy Morgan was sexually as-
saulted, murdered, and left in an abandoned building in
Chicago. The building and Morgan’s body were then set on
fire in an apparent attempt to hide the crimes. Homicide
detectives from the Chicago Police Department’s Area 3
Violent Crimes Division investigated Morgan’s murder but
were unable to find the assailants.
On March 20, 1992, Harold Hill (who was 18 years old at
the time) was arrested on unrelated charges. During the
follow-up investigation on the unrelated charges, Hill was
taken to Area 3, where he met with Detectives Kenneth
Boudreau and John Halloran. Boudreau and Halloran took
Hill to an interrogation room, where he was handcuffed to
a ring on the wall. They began questioning Hill about
whether he knew of any other crimes in the area. The
discussion eventually turned to the Morgan homicide, and
Hill denied any involvement. According to Hill, the
detectives became very aggressive and repeatedly accused
him of committing the crime, even going so far as to
scream loudly directly into his ear that “you know you did
it.” Hill contends that when Halloran and Boudreau
No. 09-1878 3
became frustrated with his denials, they resorted to
physical attacks, including grabbing his shoulders and
violently shaking him, slapping him across the face, and
punching him in his chest and ribs.
Hill contends that, after hours of questioning and
physical attacks, he became desperate to appease the
detectives and decided to make up a story about how he
had heard that two men named “Pete” and “Junior” were
responsible for the crimes. Hill states that after several
more hours of questioning, the detectives presented him
with two photographs depicting two men whom Hill did
not recognize: Dan Young and Peter Williams. Hill main-
tains that, out of fear of further abuse, he told the detec-
tives that he believed that the men in the pictures were
Morgan’s assailants.
At some point, the detectives called Assistant State’s
Attorney (“ASA”) Michael Rogers to the police station to
take Hill’s confession, although the parties dispute the
timing of Rogers’s arrival. Rogers claims that he went to
the station after Hill had already implicated himself in the
crimes by confessing to the detectives. Hill maintains that
he did not confess before Rogers arrived at the station; to
the contrary, he only told the detectives that he was
prepared to confess, but did not confess until his meeting
with Rogers. According to Hill, when Rogers entered the
interrogation room, Hill changed his mind about confess-
ing and instead reasserted his innocence, telling Rogers
that he had not been involved in Morgan’s sexual assault
or murder and that he had no knowledge of the crimes.
Hill states that Rogers ignored his pleas of innocence and
4 No. 09-1878
began pressuring him to admit some involvement in the
crimes by repeatedly asking Hill if he was “ready to
confess.” Apparently frustrated by Hill’s refusal to confess,
Rogers then left the room, at which point Boudreau
reentered and again verbally and physically attacked Hill.
Shortly thereafter, Hill agreed to confess for the second
time, and Rogers returned to the interrogation room.
Hill states that Rogers, Boudreau, and Halloran together
concocted a story that Hill, Young, and Williams had
conspired to sexually assault and kill Morgan after meeting
her at a party. According to Hill, Rogers fed him several
details about Morgan’s murder to assist in his written
confession, which was prepared by Rogers and initialed by
Hill. At 12:20 a.m. on March 22, 1992—twenty-six hours
after his arrest—Hill agreed to give a court-reported
statement. Hill contends that Rogers coached him during
his statement by asking him leading questions, whispering
the answers to other questions under his breath when Hill
“didn’t know certain answers”, and mouthing to Hill
details of the crime such as the color and type of clothing
Morgan was wearing the night she was murdered. Rogers
vehemently denies Hill’s claims and states that he only
interacted with Hill briefly and for the limited purpose of
approving the criminal charges and questioning him while
the court reporter recorded his confession. Hill was
ultimately charged with Morgan’s sexual assault and
murder.
Over the next two days, detectives arrested Young and
Williams. Both men denied knowing each other or Hill,
and both initially denied any knowledge of or involvement
No. 09-1878 5
in the Morgan crimes. According to the testimony of Young
and Williams, their protestations of innocence also sub-
jected them to physical abuse at the hands of the detectives
(including Halloran and Boudreau, who arrested and
questioned Williams). Eventually, the detectives were able
to secure written confessions from Young—who was
mentally retarded and incapable of reading or writing
anything other than his own name—and Williams—who
had been incarcerated on the day of Morgan’s murder.
Young was charged with Morgan’s sexual assault and
murder on the basis of his confession. Charges were never
brought against Williams because the detectives discov-
ered (after securing a detailed confession from him) that he
had actually been in jail when the crimes were committed
and therefore could not have been involved.
In September 1994, Hill went to trial on the sexual assault
and murder charges. The government introduced Hill’s
confession during its case-in-chief, but Hill maintained his
innocence and testified that his confession had been
coerced. The jury convicted Hill on both counts, and he
was sentenced to life in prison. Over a decade later, Hill
and his remaining codefendant Young (who had been
convicted in a separate trial) were exonerated after DNA
testing revealed that neither had contributed DNA to any
piece of evidence recovered from the crime scene. Hill and
Young moved for a new trial, after which their convictions
were vacated by agreement with the state’s attorney’s
office.
Hill brought this suit against the City of Chicago, present
and former Chicago homicide detectives including
Halloran and Boudreau, and ASA Rogers in January 2007.
6 No. 09-1878
Hill asserted that the coercion of his false confession was a
violation of the Fifth Amendment. He also brought a civil
conspiracy claim under 42 U.S.C. § 1983, alleging that the
defendants had conspired to coerce his confession. The
defendants moved for summary judgment on various
grounds. For his part, Rogers asserted that he was entitled
to absolute immunity because his actions were taken in
connection with his prosecutorial duties, and alternatively,
that he was entitled to qualified immunity because his
actions did not violate Hill’s constitutional rights. The
district court determined that Rogers, Halloran, and
Boudreau were not entitled to summary judgment on Hill’s
Fifth Amendment forced confession claim and his § 1983
claim. Rogers now appeals the district court’s denial of
summary judgment.1
II. ANALYSIS
We begin by addressing the issue of jurisdiction. On
appeal from a denial of summary judgment on an assertion
of absolute or qualified immunity, “we evaluate the record
de novo and determine whether we can decide each
immunity question without resolving any disputed
1
During the pendency of this appeal, Rogers died. Pursuant to
Federal Rule of Appellate Procedure 43(a)(1), we issued an order
staying the appeal pending appointment of a personal represen-
tative for Rogers’s estate. The stay was lifted on May 6, 2010
upon our granting of the parties’ joint motion to substitute
Rogers’s personal representative, Cordelia Coppleson, as
party-defendant. We refer only to Rogers in the opinion.
No. 09-1878 7
questions of fact. If we find that we cannot, then we lack
jurisdiction over the appeal of that question.” Hansen v.
Bennett, 948 F.2d 397, 399 (7th Cir. 1991) (citation omitted);
see Johnson v. Jones, 515 U.S. 304, 319-20 (1995) (“[A] defen-
dant, entitled to invoke a qualified immunity defense, may
not appeal a district court’s summary judgment order
insofar as that order determines whether or not the pretrial
record sets forth a ‘genuine’ issue of fact for trial.”).
Conversely, if we are able to decide either immunity
question based on undisputed facts, then we do have
jurisdiction. Leaf v. Shelnutt, 400 F.3d 1070, 1078 (7th Cir.
2005) (“[W]hen the outcome of a question of law—for
instance, whether a particular action violates the Constitu-
tion—does not depend on the outcome of a disputed
factual question, we may review whether the district court
correctly determined the question of law that it consid-
ered.”).
Here, the district court determined that Rogers was not
entitled to summary judgment based on prosecutorial
immunity because genuine issues of fact remained as to
Rogers’s involvement in the coercion of Hill’s confession.
Among the evidence the district court considered was the
discrepancy about whether Hill confessed to the crimes
before or after Rogers arrived at the police station, Hill’s
testimony that he initially told Rogers that he did not want
to confess, and Hill’s assertions that Rogers had fed him
additional details about the murder to assist Hill during
his confession. The district court found that this evidence
was sufficient to create a genuine issue of material fact
with respect to the extent of Rogers’s personal involvement
in the coercion of Hill’s confession.
8 No. 09-1878
Rogers now asks this court to reassess whether he is
entitled to absolute or qualified immunity, both of which
depend on issues of fact that the district court has correctly
determined are in dispute. With respect to absolute
immunity, a prosecutor is absolutely immune from § 1983
civil liability when he “acts as an advocate for the state but
not when his acts are investigative and unrelated to the
preparation and initiation of judicial proceedings.” Smith
v. Power, 346 F.3d 740, 742 (7th Cir. 2003) (citing Buckley v.
Fitzsimmons, 509 U.S. 259, 273 (1993)). The question of
whether Rogers was acting in the role of an advocate or an
investigator depends in part on whether probable cause for
Hill’s arrest existed before Rogers’s arrival at the police
station. See Buckley, 509 U.S. at 274 (“A prosecutor neither
is, nor should consider himself to be, an advocate before he
has probable cause to have anyone arrested.”). And the
probable cause question turns on a disputed issue of fact
concerning Hill’s confession, which was the only piece of
evidence implicating him. If Hill confessed to the crimes
before Rogers arrived, then the detectives likely did have
probable cause to arrest him, which counsels toward a
finding that Rogers was acting in a purely prosecutorial
role for which he would be entitled to absolute immunity.
On the other hand, a determination that Hill did not
confess until his meeting with Rogers would indicate that
Rogers was likely acting in the role of an investigator
searching for more evidence, activities to which only the
qualified immunity analysis applies. As the district court
found, whether Rogers arrived before Hill confessed is a
disputed issue of fact that requires making credibility
determinations and weighing the evidence, which the court
No. 09-1878 9
could not do on summary judgment. Because we cannot
resolve the absolute immunity question without resolving
this factual dispute, we do not have jurisdiction over Hill’s
appeal of that issue.2
Rogers’s qualified immunity claim also depends on
disputed issues of fact. A prosecutor is entitled to qualified
immunity if his or her “actions did not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Viilo v. Eyre, 547
F.3d 707, 709 (7th Cir. 2008) (citation and internal quotation
marks omitted). In essence, Rogers’s argument is that there
2
Rogers’s conclusory assertion that Hill had confessed prior to
Rogers’s arrival at the station is meritless. Rogers contends that
Hill’s agreement to confess is tantamount to a confession itself.
But this contention is not supported by the Supreme Court of
Illinois’s longstanding definition of “confession,” which is “a
direct acknowledgment of guilt on the part of the accused, either
by a statement of the details of the crime or an admission of the
ultimate fact.” People v. Allen, 107 N.E.2d 826, 830 (Ill.
1952)(citing People v. Nitti, 143 N.E. 448, 455 (Ill. 1924). Hill’s
statement that he intended to confess did not contain any details
of the crimes, nor was it an admission of the ultimate fact. See
also United States v. Gilbertson, 435 F.3d 790, 798 (7th Cir. 2006)
(citing with approval the Third Circuit’s definition of “confes-
sion” as “a statement admitting or acknowledging all facts
necessary for conviction of the crime”) (citing Gov’t of Virgin
Islands v. Harris, 938 F.2d 401, 409 n.5 (3d Cir. 1991)). Without
more, Hill’s statement that he would confess is insufficient to
create probable cause, and accordingly, cannot be the basis for
finding that Rogers was acting as an advocate rather than an
investigator during his meeting with Hill.
10 No. 09-1878
was no legitimate basis for a finding that Rogers coerced
Hill; thus, Hill was not deprived of a constitutional right.
But this argument faces the same problem as Rogers’s
appeal based on absolute immunity in that its resolution
depends on facts that the district court has properly
determined to be in dispute: the extent to which Rogers
was involved in coercing Hill’s confession. And because we
cannot determine whether Rogers coerced Hill’s confession
without resolving the discrepancies between Hill’s and
Rogers’s accounts of the events, we lack jurisdiction to
consider Rogers’s qualified immunity claim on interlocu-
tory appeal. See White v. Gerardot, 509 F.3d 829, 835 (7th Cir.
2007) (“We do not have jurisdiction when, as here, all of
the arguments made by the party seeking to invoke our
jurisdiction are dependent upon, and inseparable from,
disputed facts.”); Via v. LaGrand, 469 F.3d 618, 624 (7th Cir.
2006) (“[U]nder Johnson and its progeny, this court lacks
interlocutory jurisdiction to review the record to determine
whether the district court erred in finding that a genuine
issue of material fact exists.”).
III. CONCLUSION
Because we lack jurisdiction, the appeal is D ISMISSED.
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