Michael Evans v. Anthony Katalinic , Fred Hill , William Mosher

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1253
M ICHAEL E VANS ,
Plaintiff-Appellee,
v.
A NTHONY K ATALINIC , F RED H ILL ,
W ILLIAM M OSHER , et al.,
Defendants-Appellants.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 3570—David H. Coar, Judge.
____________
A RGUED A PRIL 5, 2006—D ECIDED A PRIL 26, 2006
____________
Before E VANS , W ILLIAMS , and S YKES , Circuit Judges.
E VANS, Circuit Judge. Almost 30 years ago, Michael
Evans was convicted of abducting, raping, and killing
9-year-old Lisa Cabassa. The conviction, which was based in
large part on the testimony of a single “eyewitness,” was
eventually vacated after DNA testing proved Evans inno-
cent. He has sued the City of Chicago and a number of
Chicago police officers, claiming that they conspired to
falsely convict him by pressuring the witness to identify
him and by withholding evidence that undermined the
witness’s credibility. The police officer defendants moved for
summary judgment, based in part on a defense of qualified
immunity. The motion was denied and this interlocutory

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2 No. 06-1253
appeal followed, as permitted under Mitchell v. Forsyth,
472 U.S. 511 (1985).
The witness, Judy Januszewski, was a neighbor and
acquaintance of both Lisa Cabassa and Michael Evans—
Lisa and her children were playmates, while Evans was
friends with one of her coworkers at a nearby real-estate
office. Walking home from work on the evening of
January 14, 1976, Januszewski reportedly saw some
young black men struggling with a young girl. She ran
home and for 4 days told no one what she had seen, even
after learning that Lisa Cabassa had been killed. On the
fifth day, she contacted a reward hotline that offered $5,000
for information about Lisa’s death. The hotline alerted the
police, who took Januszewski to the station for questioning.
She described to them what she had witnessed and helped
produce a composite sketch of the suspects. She initially
insisted that she did not recognize the young men she saw
that night, but 5 weeks later she had a change of heart and
gave the police the name of Michael Evans.
Evans was arrested on February 26, 1976, based on
Januszewski’s identification. His counsel moved to suppress
the identification and the arrest, but the court denied the
motion without prejudice (the record does not tell us why).
A bench trial was held, at which Januszewski was the star
witness. Despite various discrepancies between her trial
testimony and her initial statement to the police—she
originally said that she saw two assailants more than 75
feet away at 6:37 p.m.; at trial, it was three men closer than
20 feet away sometime after 8:00—the court deemed her
credible and found Evans guilty. That conviction was
vacated when the court discovered another fact bearing on
the witness’s credibility—she was paid $1,250 in “relocation
expenses” after identifying Evans—that had not been
disclosed to the defendant. Evans was retried before a jury,
this time with codefendant Paul Terry. They were convicted
and sentenced to 200-400 years in prison.

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No. 06-1253 3
Twenty-seven years later, after DNA testing had shown
that Evans and Terry were innocent, Evans filed this
lawsuit. (Terry reportedly has his own lawsuit under way in
state court.) Deposing Januszewski in connection with the
suit, Evans got a new perspective on her motivations back
in 1976. She explained that after weeks of insisting to the
police that she did not know the assailants’ names, the
police again brought her to the station, held her there from
morning until late evening locked in a roach-infested
interrogation room with no bathroom, and made veiled
threats about their ability to make people talk. She also
revealed that the police were the first ones to bring up
Evans’s name, asking Januszewski whether he could have
been among the men she saw. None of this was known to
Evans at the time of his trials. Also not known back then
was that Januszewski’s husband, Harry, told the police that
his wife was not trustworthy—she had a history of lying
and petty fraud, as well as poor eyesight—and that the
police not only shrugged off his concerns but detained him
on the day of the trial to prevent him from expressing those
concerns to the prosecutor.
Evans claims that the defendants’ efforts to get
Januszewski to identify him and testify against him, along
with other alleged improprieties, deprived him of due
process. The defendants asserted qualified immunity and
have appealed from the district court’s decision rejecting
that defense. But there’s something odd about the ap-
peal. The point of permitting interlocutory appeals from the
denial of qualified immunity is to allow the appellate court
to determine whether the alleged behavior violated clearly
established law—a purely legal question. See Johnson v.
Jones, 515 U.S. 304, 313-14 (1995); Leaf v. Shelnutt,
400 F.3d 1070, 1078 (7th Cir. 2005). But the defendants
aren’t arguing that the Constitution allows them to coerce
a witness’s testimony and withhold evidence of its falsity,
or that the law on that point was unsettled in 1976. In-

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4 No. 06-1253
stead, they argue that Evans doesn’t have a right to assert
such behavior in the first place.
Here’s how their argument works: Evans is claiming that
the police got Januszewski to lie about having seen him
on the evening of January 14, 1976. But that was basically
the theory he presented in the motion he filed before his
first trial asking the court to suppress Januszewski’s
identification of him. That motion was denied; therefore,
the issue has been decided; therefore, he is now collaterally
estopped from raising the issue in this suit.
This is an absurd argument, for any number of
reasons: (1) there is no indication that the court “decided”
the issue when it denied Evans’s motion to suppress—the
motion was denied without prejudice, and there is no
transcript to tell us what was argued or what the court was
thinking; (2) not only were both convictions following the
denial of the motion to suppress vacated upon discovery of
new evidence, but Evans has since received a full
innocence-based pardon from the governor of Illinois and,
we are told, had his criminal record expunged— leaving
precious little upon which preclusion could be based; (3)
Januszewski’s deposition testimony provides additional new
evidence of the defendants’ activities, unknown at the time
of the motion to suppress; and (4) collateral estoppel is an
equitable doctrine, and the equities are entirely in favor of
allowing Evans to proceed with his claim. (On the require-
ments for invoking collateral estoppel, see generally
Sornberger v. City of Knoxville, Ill., 434 F.3d 1006, 1020-23
(7th Cir. 2006).)
The defendants insist that Illinois law holds otherwise.
They cite People v. Enis, 645 N.E.2d 856, 864 (Ill.
1994): “Where a defendant’s conviction has been reversed
for trial error, and the cause is remanded for a new trial,
the doctrine of collateral estoppel bars the relitigation of
a pre-trial ruling, such as a motion to suppress, unless

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No. 06-1253 5
the defendant offers additional evidence or there are
other special circumstances.” The formulation is problem-
atic—the principle limiting relitigation of an issue in a later
stage of a single proceeding (which is what Enis is about) is
law of the case, not collateral estoppel. See Rekhi v.
Wildwood Industries, 61 F.3d 1313, 1317 (7th Cir. 1995). In
any event, the present case lacks neither additional evi-
dence nor special circumstances. Even by Enis’s terms,
there’s no estoppel here.
The defendants’ remaining argument—that Evans waived
his claim against them by not pursuing it back in the
1970s—is too ridiculous to merit comment. We A FFIRM the
district court’s denial of the defendants’ motion for sum-
mary judgment and R EMAND the case for further proceed-
ings. Costs are awarded to the appellee.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-26-06

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