Dana Holland v. CITY OF CHICAGO, NANCY PIEKARSKI, and TIMOTHY CULLINAN

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3905
DANA HOLLAND,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, NANCY PIEKARSKI,
and TIMOTHY CULLINAN,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:05-cv-03255—James B. Zagel, Judge.
ARGUED JANUARY 21, 2011—DECIDED JUNE 23, 2011
Before FLAUM, MANION, and EVANS, Circuit Judges.
EVANS, Circuit Judge. In 1993 Dana Holland was ar-
rested and subsequently charged with sexually assaulting
Dionne Stanley. Four years later, in 1997, he was con-
victed in Cook County Circuit Court after a bench
trial. He received a stiff sentence: three consecutive 30-
year terms to begin after he completed a 28-year sen-
tence he was serving on an unrelated conviction. In

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2 No. 09-3905
2002 new DNA testing of a vaginal swab taken from
Stanley revealed a match not to Holland, but to his
uncle, Gordon Bolden. In 2003 Holland’s conviction was
vacated. Holland subsequently sued the City of Chicago
and two police officers, Timothy Cullinan and Nancy
Piekarski (collectively, “the City”), in state court al-
leging malicious prosecution under Illinois law. When
due process violations (via Brady v. Maryland) under
42 U.S.C. § 1983 were added to the complaint, the case
was removed to federal court where summary judg-
ment was eventually granted for the City. Holland appeals.
We start with the facts, viewed as they must be at this
stage of the case, in the light most favorable to Holland.
Having said that, we acknowledge that viewing the
facts favorably to Holland is extraordinarily difficult
because his case against the defendants rests entirely
on the credibility of Stanley who has told multiple versions
of her story and testified—under oath in a 2009 deposition
in this case—that she committed perjury while testifying
under oath in Mr. Holland’s 1997 criminal court trial.
Putting that little detail aside, we forge on.
On February 22, 1993, around 6:00 in the morning,
officers Cullinan and Piekarski responded to a dispatch
regarding a woman screaming for help. They arrived at
the scene, in the alley in the 7700 block of South Paulina,
in time to see a black man run from the driver’s side of
a car, while Stanley emerged partially clothed from
the passenger’s side and headed toward the officers.
Cullinan chased the driver, while Piekarski stayed with
Stanley and tried to calm her down. Cullinan lost sight

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No. 09-3905 3
of the man he was chasing and returned to the police
cruiser to join Piekarski and Stanley.
Stanley related what happened to the officers. Definitely
not behaving like an expectant mother should (she was
almost eight-months pregnant at the time) Stanley
said, among other things, that she used crack-cocaine
during the preceding 24 hours. She said she met a
black man in a bar (at trial, she called it “a lounge”) around
1:30 a.m. and that later, in his car, the man raped her
and forced her to give him oral sex. She went on to add
a crucial tidbit of information: the man was wearing
jeans with “cartoons” on them. She also told the officers
the man had a knife and dropped it in the alley.
Soon, other police officers—Mary Bonnema and Martin
Tulley—arrived. Cullinan went off down the alley
looking for the knife while Bonnema and Tulley tracked
footprints in the snow that they thought were left by
Stanley’s attacker. While looking for the knife, Cullinan
entered the alley behind 7821 S. Paulina (approximately
one block away) where he spotted Holland standing over
a trash can. Cullinan, with gun drawn, told Holland
to drop the items he was holding. He did, and they fell
into the trash can. The items were some empty beer
bottles, an empty liquor bottle, and a pair of jeans with
cartoons around the waistband. In the pocket of the
jeans was Holland’s wallet containing a photo ID.
Cullinan took Holland back to the police cruisers to do
a “show-up” with Stanley. Show-ups, unlike formal line-
ups, are used, as this one was, when a suspect is
brought before a victim (or vice versa) soon after the
commission of an offense.

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4 No. 09-3905
At approximately the same time, officers Bonnema
and Tulley tracked the footprints to the door of 7821 S.
Paulina, where Holland’s grandmother lived on the
first floor with his uncle Bolden, who was also the regis-
tered owner of the car that was ditched in the alley one
block away. Holland sometimes stayed in the basement
of the building, although the officers didn’t know this
at the time. Bonnema and Tulley entered the building
and found no one there. However, they did find a pair
of wet sneakers, which appeared to match the footprints
in the snow. The sneakers were a half-size larger than
Holland’s shoe size.
While all this was going on, Stanley remained in the
alley where the car was abandoned. According to her,
just before Holland was brought back for the show-up, one
of the female officers told her, “The guy you described
[was] throwing out the clothes you described and we
want you to take a look at him.” When Holland was
shown to Stanley, an officer asked her whether he was
the man who attacked her, and she said, “No.” Holland
heard Stanley say he was not her attacker, and Officer
Cullinan then took him away. According to Holland,
Officer Cullinan brought him back to Stanley three
more times. The first two times she said he was not the
attacker. On the third presentation, she became “a little
upset” and said, “No, I told you all that’s not him.”
Stanley had told the officers that she was drinking
that night and last took drugs around noon the previous
day. According to Stanley, when she said at the show-up
that Holland was not the rapist, she “was pretty much

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No. 09-3905 5
sober.” Stanley also testified that after she said Holland
was not the rapist, the same female officer who had told
her Holland was throwing out the clothes she described
added that Holland was also throwing out shoes that
matched the impressions of the footprints in the snow.
Stanley says the officer said, “it’s him” and “[h]e ha[d]
the evidence.” Stanley further testified that the officer
also told her that, due to the drugs and alcohol Stanley
had consumed, she “was mistaken” when she said
Holland was not the rapist.
Stanley also claims a female officer said, “You just have
to say it’s him and you’ll be able to go home.” One of the
female officers also told Stanley she “was in good hands,
[she] was safe,” and that the rapist “couldn’t hurt [her]
any more.” After that officer talked to her for approxi-
mately ten minutes, Stanley identified Holland as the
rapist, saying, “That’s him.” Holland was arrested, and
Stanley was taken to the hospital.
Stanley’s story, as we have just related it, comes mostly
from her 2009 deposition testimony in connection with
this civil case. Her testimony during the 1997 criminal
court trial was quite different. At the trial, she identified
Holland as the man she met in the bar that night. She
said he told her she “looked nice.” After the bar closed
she got into Holland’s car and drove to two liquor stores
in an unsuccessful attempt to buy some beer. Later, she
said, he parked the car in an alley, unzipped his pants,
and said, “Suck my dick, bitch.” A sexual assault and
a rape followed. With absolutely no hesitation, at the
trial, she said Holland was the man who assaulted and

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6 No. 09-3905
raped her. She identified the “cartoon” pants she said
he was wearing. She identified a knife found in the area
and said Holland pointed it at her during the assaults.
She acknowledged that she first “hesitated” to identify
Holland at the scene because she was afraid of him. She
said the “lady officer” told her, “If that was him, I didn’t
have to be afraid, he couldn’t hurt me anymore.” After
that, she identified Holland as the attacker. She said
no one told her to identify Holland. She did so only
because “he was the man that raped me.”
At some point around the time Holland was arrested,
he told the officers that it was Bolden they wanted and
that it was Bolden’s car in the alleyway. He also said
that Bolden lived at 7821 S. Paulina and was inside.
However, Bolden was not there when Bonnema and
Tully entered and found the wet shoes. After Stanley
identified Holland, none of the officers at the scene con-
tinued to search for Bolden.
In the days after Holland’s arrest, further investiga-
tion took place. Holland claimed he’d been sleeping in
his grandmother’s bed after watching TV, and that Bolden
was in the apartment when he woke up. He said he
gathered his dirty jeans and the empty bottles and was
heading down to the basement to go to bed, with a stop
by the trash can in the alley to toss the bottles, when
Officer Cullinan found him. He claimed that various
family members could verify that he was home all
night, but later none did, and in fact they gave con-
flicting stories to the investigators.
Although no one looked for Bolden the day of the
alleged assault, the State’s Attorney’s Office later

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No. 09-3905 7
located him and called him to testify before a Cook
County grand jury. Bolden testified that he was not
living at 7821 S. Paulina on the date of the crime; that,
although he was there that night, he left between
10:30 p.m. and 11:00 p.m. and did not return until noon
or 1:00 p.m. the next day; and that he did not see
Holland that night after he left. The grand jury (with-
out testimony from Stanley) indicted Holland for ag-
gravated criminal sexual assault and related offenses.
About a year after the incident, Stanley was inter-
viewed at the State’s Attorney’s Office. According to her
2009 deposition version of events, she told the inter-
viewer that “the police” told her various things at the
show-up between the time she said Holland was not
the rapist and the time she said he was. She said she was
told that she was drunk, high, and confused, and that
Holland was throwing away jeans that matched the
description she had given and shoes that matched foot-
prints in the snow. But she also admitted that at no
time during the interview, did she say that Holland
was not the rapist, or that anyone told her to lie during
her trial testimony. Stanley added that she could not
remember the name of the person who interviewed her
or whether the person was a man or a woman. Sometime
after that session at the State’s Attorney’s Office, Stanley
received a subpoena to appear in court for Holland’s
trial. She didn’t appear, so a warrant was issued for
her, and a new trial date for Holland was set.
Sometime before Holland’s new trial date, Stanley
moved to Milwaukee. About 30 days before the trial

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8 No. 09-3905
date, Stanley was arrested and extradited to Chicago. The
prosecutor, Assistant State’s Attorney Lauren Freeman,
arranged for Stanley’s arrest because she failed to
appear pursuant to the original subpoena.
Once back in Chicago, 13 days before Holland’s trial was
scheduled to start, Stanley was interviewed by Holland’s
attorney, George Tountas. Stanley told Tountas that
Holland had raped her and that, at the show-up, she
initially said he was not the rapist but later she said that
he was. Tountas asked Stanley why she had initially
said Holland was not the rapist, and Stanley responded
that she had been “afraid to make the identification.”
Stanley told Tountas that the only thing the police said
to her at the show-up was “not to be afraid”; they
did not “sa[y] anything else to her.”
Shortly before the trial, Stanley met with Freeman.
Stanley’s more recent account of that meeting (which is,
of course, at odds with her trial testimony) is that she told
Freeman that Holland did not rape her, and that she
identified Bolden as the rapist from a picture Freeman
showed her. Stanley also says that Freeman told her
that Bolden was the “wrong guy,” that “all the evidence,
DNA, points to” Holland, and that Holland “has a long
record for assault.” According to Stanley, when that
meeting occurred, she had been in jail for 30 days, and
Freeman told her that if she did not testify at the trial
that Holland was the rapist, she “wasn’t going home,”
and “would be brought up on perjury charges.” It is
also worthwhile to note that when Stanley related this
version (in 2009) of her interview with Freeman shortly

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No. 09-3905 9
before the start of the 1997 trial she (1) knew that DNA
exonerated Holland and pointed to Bolden, and (2) be-
lieved Bolden had admitted raping her. This later point
was wrong: Bolden only admitted to having had
consensual sex with Stanley on the night in question in
1993. In fact, Bolden was called to testify on Holland’s
behalf at the 1997 trial and he did so. He said he was the
man who got out of the car and ran in 1993 after an eve-
ning of consensual sex with Stanley. Despite this testi-
mony, Holland was convicted.
Finally, we move to issues raised on Holland’s appeal
of the order dismissing his case on summary judgment.
Before getting to that, however, we note the obvious:
Holland’s conviction for a rape he did not commit was
a miscarriage of justice. But it doesn’t follow that just
because justice miscarried, a lawsuit seeking damages
will remedy the wrong. That’s why many states have
set up compensation systems to pay what amounts to
reparations to those who, after a conviction and
the service of time in prison, are exonerated. But the
compensation systems in place (how much money is
awarded for each year a person spent in prison for a
crime he didn’t commit) vary wildly from state to state.
And many states do not provide benefits at all. Whether
or not Mr. Holland can seek, or is seeking, compensa-
tion under the system in place in Illinois is not before
us. We must, instead, confine our review to the cold
truth about the viability of his claims in a court of law
where to win his case, Holland must satisfy all the ele-
ments of his claims.

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10 No. 09-3905
Holland’s state law malicious prosecution case is em-
bodied in the first two counts of his complaint. The
first count names the officers, Cullinan and Piekarski;
the second names the City of Chicago on a respondeat
superior theory.
In order to prevail on a malicious prosecution claim,
a plaintiff must establish “(1) the commencement or
continuance of an original criminal or civil judicial pro-
ceeding by the defendant; (2) the termination of the
proceeding in favor of the plaintiff; (3) the absence of
probable cause for such proceeding; (4) the presence
of malice; and (5) damages resulting to the plaintiff.”
Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996). The
absence of any single element is fatal to a claim.
In this case, the police had probable cause to com-
mence proceedings against Holland. And because his
only basis for inferring malice is the absence of probable
cause, he cannot prove that element either. An officer
has probable cause when there are “facts and circum-
stances within the officer’s knowledge that are sufficient
to warrant a prudent person . . . in believing, in the cir-
cumstances shown, that the suspect has committed” a
crime. Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). To
make the probable cause determination, we “step[ ] into
the shoes of a reasonable person in the position of the
officer.” Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008).
For purposes of a malicious prosecution claim, the perti-
nent time for making the probable cause determination
is the time when the charging document is filed, rather
than the time of the arrest. Porter v. City of Chicago, 912

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No. 09-3905 11
N.E.2d 1262, 1274 (Ill. App. Ct. 2009); but see Frye v.
O’Neill, 520 N.E.2d 1233, 1241 (Ill. App. Ct. 1988) (sug-
gesting in dicta that probable cause at the time of arrest
is the pertinent time for purposes of the tort).
Here, there was ample probable cause to commence
proceedings against Holland, completely apart from
Stanley’s identification of him as her assailant. Specif-
ically, there were shoe prints in the snow leading from
the crime scene to Holland’s residence; there were wet
shoes in the house; there was no other male at the resi-
dence when police arrived; Holland was in the alley
behind the residence holding jeans that matched Stanley’s
description of the assailant’s clothing; Holland’s wallet
was in those same jeans; and Holland’s alibi did not
check out. See e.g., Simkunas v. Tardi, 920 F.2d 1287, 1291-92
(7th Cir. 1991). Even if Stanley had maintained that Hol-
land was not her assailant, there would still have been
probable cause. Although the police should have done
a better job of investigating Bolden, they need not
conduct additional investigation once they have estab-
lished probable cause. Mustafa v. City of Chicago, 442
F.3d 544, 548 (7th Cir. 2006).
The obvious presence of probable cause proves fatal
to Holland’s case for another reason: he has not
presented evidence of malice. As the eponymous
tort suggests, malice is one of the elements of malicious
prosecution. “Malice is defined as the initiation of a
prosecution for any reason other than to bring a party
to justice.” Rodgers v. Peoples Gas, Light & Coke Co., 733
N.E.2d 835, 842 (Ill. App. Ct. 2000). Holland is correct

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12 No. 09-3905
that malice can be inferred when a defendant lacks proba-
ble cause and the circumstances indicate a lack of good
faith. E.g., Aguirre v. City of Chicago, 887 N.E.2d 656,
663 (Ill. App. Ct. 2006). But because the police had
probable cause in this case and because there is no alterna-
tive basis for establishing malice, he can establish neither
element.
Although we need not gild the lily at this point, it is
worth noting that the defendants also argue that they
enjoy state-law immunity, because a “public employee
is not liable for his act or omission in the execution or
enforcement of any law unless such act or omission
constitutes willful and wanton conduct.” 745 ILCS 10/2-
202. Arguably, there is a more specific immunity pro-
vision that applies to law enforcement, which essentially
mirrors and codifies the malicious prosecution standard.
See 745 ILCS 10/2-208 (immunity from liability for in-
stituting or prosecuting judicial proceeding). Either
way, Holland relies on inferences based on the absence
of probable cause in order to overcome statutory im-
munity. On these facts, then, the presence of probable
cause has the opposite effect—it establishes the immunity.
We come now to Holland’s second argument. He
claims that he established a triable issue of fact as to
whether the officers (more Piekarski, the female officer,
than Cullinan) withheld exculpatory evidence from him
in violation of Brady v. Maryland, 373 U.S. 83 (1963). The
argument is addressed in less than two pages (a dozen
pages of argument are devoted to the malicious prosecu-
tion claim) at the tail end of Holland’s brief on appeal.

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No. 09-3905 13
It is well established that Brady requires that material
exculpatory evidence, unavailable to the defense but
known to the prosecution, must be disclosed. The duty
to disclose includes exculpatory evidence in the form
of impeachment evidence. United States v. Bagley, 473
U.S. 667, 676 (1999). And police officers can be held
liable under Brady and its progeny when they withhold
exculpatory evidence from prosecutors and the with-
holding of evidence is “material.” Evidence is material
“if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different.” Strickler v. Greene,
527 U.S. 263, 280 (1999) (quoting Bagley, 473 U.S. at 676).
The Brady issue here revolves around the identifica-
tion of Holland by Stanley soon after the police received
her report that she had been sexually assaulted. For
want of a better phrase, the procedure is, as we noted
earlier, referred to as a “show-up.” Show-ups have
some advantages: little time has passed since the
criminal act, so the victim gets a look-see while the
events are still quite fresh; if no identification is made,
the “suspect” is usually set free quickly. But there are
drawbacks as well: as with eyewitness identifications
in general, the risk of a misidentification during a show-up
is always present.
Holland claims that his due process rights under Brady
were violated during his 1997 trial because, in effect, “the
police” (again, probably the female officer, Piekarski)
failed to disclose the “pressure” they put on Stanley to
identify him as her attacker during the show-up. There
are several problems with this argument.

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14 No. 09-3905
A defendant in a criminal case that actually goes to
trial has the “responsibility to probe the witnesses and
investigate their versions of the relevant events.” Carvajal
v. Dominguez, 542 F.3d 561, 567 (7th Cir. 2008). Holland
testified at his deposition in this civil case that he was
presented to Stanley three times during the show-
up and that each time he heard her say he was not her
assailant. Accordingly, one would think that the first
thought to pop into the mind of an attorney defending
Holland would be to ask this question: What (if anything)
happened between the three times Stanley said Holland
was not the rapist and the time she finally said that he
was? Holland’s lawyer (Tountas) actually asked that
question of Stanley in an interview before the 1997 trial,
and she told him that she didn’t immediately ID Holland
at the show-up because she was “afraid.” She didn’t tell
him that any pressure, undue or otherwise, was applied
to her. Even if she was lying when she said that to Attor-
ney Tountas, there is no evidence that either officers
Piekarski or Cullinan (the only defendants on the Brady
claim) coerced Stanley to lie or were otherwise with-
holding exculpatory evidence on this point from the
defense.
In addition, Brady is not violated unless “the result
of the proceeding would have been different” had the
suppressed evidence been disclosed. Id. In other words,
a Brady violation must be material. The mere possibility
that an item of evidence may have helped a defendant
during his trial on criminal charges does not establish
materiality. See United States v. Hamilton, 107 F.3d 499,
509 (7th Cir. 1997). Here, Holland waived his right to a

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No. 09-3905 15
jury trial and elected to be tried instead by the court.
Assume, for a moment, that the trial judge heard testi-
mony that Officer Piekarski had urged, coaxed, or pres-
sured Stanley to ID Holland as her attacker during
the show-up. Would that have moved the judge to find
Holland not guilty? We do not think so, especially when
Stanley explained in live testimony at the trial that she
initially hesitated to make an identification because
she was “afraid” of Holland. That explanation, coupled
with some fairly strong physical evidence—particularly
the rather unique “cartoon” design on the jeans Holland
was holding in the alley one block away—would have
resolved any doubt about Holland’s guilt in the state’s
favor.
Finally, the length of time a victim has to observe a
defendant is always an important ingredient in sizing
up eyewitness identification. A 30-second encounter
with a purse snatcher is one thing. A lengthy encoun-
ter—here Stanley was with her attacker for almost five
hours, and their encounter started off as friendly (recall
that Stanley testified that she agreed to spend time with
the attacker after he flattered her by saying that she
“looked nice”) is quite another thing. For these
reasons, the district court correctly granted summary
judgment to Piekarski and Cullinan on the Brady claim.
The judgment of the district court is AFFIRMED.
6-23-11

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