799 F.3d 833 (7th Cir. 2015), 13-3343, Stinson v. Gauger

Docket Nº:13-3343, 13-3346, 13-3347
Citation:799 F.3d 833
Opinion Judge:Sykes, Circuit Judge.
Party Name:ROBERT LEE STINSON, Plaintiff-Appellee, v. JAMES GAUGER, LOWELL T. JOHNSON, and RAYMOND RAWSON, Defendants-Appellants
Attorney:For Robert Stinson (13-3343, 13-3347, 13-3346), Plaintiff - Appellee: Michael Kanovitz, Attorney, Loevy & Loevy, Chicago, IL. For James Gauger, Defendant - Appellant (13-3343): Grant F. Langley, Attorney, Jan A. Smokowicz, Attorney, Milwaukee City Attorney's Office, Milwaukee, WI. For Lowell T. J...
Judge Panel:Before BAUER, MANION, and SYKES, Circuit Judges.
Case Date:August 25, 2015
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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799 F.3d 833 (7th Cir. 2015)

ROBERT LEE STINSON, Plaintiff-Appellee,



Nos. 13-3343, 13-3346, 13-3347

United States Court of Appeals, Seventh Circuit

August 25, 2015

Argued: June 6, 2014,

As Corrected August 26, 2015.

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Appeals from the United States District Court for the Eastern District of Wisconsin. No. 09-C-1033 -- C.N. Clevert, Jr., Judge.

For Robert Stinson (13-3343, 13-3347, 13-3346), Plaintiff - Appellee: Michael Kanovitz, Attorney, Loevy & Loevy, Chicago, IL.

For James Gauger, Defendant - Appellant (13-3343): Grant F. Langley, Attorney, Jan A. Smokowicz, Attorney, Milwaukee City Attorney's Office, Milwaukee, WI.

For Lowell T. Johnson, Defendant - Appellant (13-3347): Jason J. Franckowiak, Attorney, Otjen, Gendelman, Zitzer, Johnson & Weir, S.C., Waukesha, WI.

For RAYMOND D. RAWSON, Doctor, Defendant - Appellant (13-3346): W. Patrick Sullivan, Attorney, Siesennop & Sullivan, Milwaukee, WI.

Before BAUER, MANION, and SYKES, Circuit Judges.


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Sykes, Circuit Judge.

Robert Lee Stinson spent 23 years in prison for a murder he did not commit. He was exonerated by DNA evidence and now sues the lead detective and two forensic odontologists who investigated the murder and later testified at trial. The odontologists were the key witnesses for the prosecution. They testified that bite marks on the victim's body matched Stinson's dentition. In this suit for damages, see 42 U.S.C. § 1983, Stinson alleges that the odontologists fabricated their opinions, the detective put them up to it, and all three defendants suppressed evidence of the fabrication, all in violation of his right to due process of law.

The case comes to us on appeal from the district court's denial of the defendants' claim of absolute or qualified immunity from suit. We agree that absolute immunity does not apply. Stinson has sued the defendants primarily for their investigative misconduct, not their testimony at trial. But the defendants remain protected by qualified immunity, which is lost only if Stinson presents evidence showing that they violated a clearly established constitutional right. He has not done so. Stinson's evidence, accepted as true, shows at most that the odontologists were negligent; it does not support his claim that they fabricated their opinions. And an error in forensic analysis--even a glaring error--is not actionable as a violation of due process. Finally, Stinson's evidence-suppression claim is wholly dependent on the allegation of fabrication, which is unsupported by the record. Accordingly, we reverse and remand with instructions to enter judgment for the defendants.

I. Background

The immunity issue was raised at the summary-judgment stage, so our factual account of the case comes from the evidence submitted in support of and opposition to the defendants' Rule 56 motion, see Fed.R.Civ.P. 56, construed in Stinson's favor, Locke v. Haessig, 788 F.3d 662, 666-67 (7th Cir. 2015).

At about 7 a.m. on November 3, 1984, Milwaukee police were dispatched to the scene of a homicide at 2650 N. 7th Street. In the rear yard at that address, they found the body of Ione Cychosz; she had been brutally raped and murdered. The most promising physical evidence was a set of bite marks left on Cychosz's body, so the Milwaukee County Medical Examiner asked Dr. Lowell Johnson to assist on the case. Dr. Johnson was a professor of dentistry and oral surgery at Marquette University, a forensic odontologist, and a diplomate of the American Board of Forensic Odontology. At the Medical Examiner's request, Dr. Johnson examined the bite

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marks on Cychosz's body and made rubber impressions of them.

About two days after the murder, Milwaukee homicide detective James Gauger and his partner, Tom Jackelen, assumed responsibility for the investigation. They started by reviewing the work other officers had done to that point and meeting with Dr. Johnson, who described the killer's teeth and showed them a preliminary sketch. No police reports memorialize this meeting and the parties dispute what was said, but according to Stinson's version of events, Dr. Johnson informed the detectives of his working hypothesis: the killer had one twisted tooth and was missing the upper right lateral incisor (the tooth just to the right of the two front teeth).

Armed with this information, the two detectives began interviewing people who lived near the scene of the crime. Stinson's house was immediately to the north of the yard where the body was found. Gauger already knew Stinson. Two years earlier, Gauger had tried and failed to prove that Stinson was responsible for the murder of a man named Ricky Johnson. The Johnson homicide was never solved, even though a witness identified Stinson and two others as having been involved. To this day, Gauger believes that Stinson was responsible for Ricky Johnson's murder.

Gauger and Jackelen went to Stinson's home and initially spoke with his mother and brother. Gauger then separately interviewed Stinson's brother while Jackelen interviewed Stinson. When they finished, the detectives compared notes outside the Stinson home. Jackelen told Gauger, " We have him." Gauger asked Jackelen what he meant, and the two detectives then returned to the house to talk with Stinson again. Jackelen's plan was to say something that would make Stinson laugh so they could see his teeth. He did so, and Gauger and Jackelen saw that Stinson was missing his right front tooth (his right central incisor) and had another tooth that was badly damaged. That did not quite match the description Dr. Johnson had given: Stinson's missing tooth was the one just next to the tooth that the odontologist said would be missing. Nonetheless, the detectives thought they'd found their man.

The detectives met with District Attorney E. Michael McCann and Assistant District Attorney Daniel Blinka to report the status of the investigation. Blinka summoned Dr. Johnson to the meeting, and Johnson said he would need to personally examine Stinson to determine whether his teeth matched the bite marks on Cychosz's body. Blinka did not think they had enough evidence for a warrant compelling Stinson to submit to a dental examination, so he decided to open a John Doe proceeding--a unique procedure authorized by Wisconsin law that allows district attorneys to (among other things) subpoena witnesses to appear and give evidence before a judge in order to determine whether probable cause exists to charge someone with a crime. See Wis. Stat. § 968.26. On Blinka's petition a Milwaukee County Circuit Judge opened a John Doe proceeding to investigate the Cychosz murder.

Stinson was subpoenaed and on December 3 submitted to examination at a hearing before the John Doe judge. Dr. Johnson evaluated him on the spot and stated that his teeth were consistent with the bite marks on Cychosz's body. The judge overseeing the hearing ordered Stinson to submit to a more thorough dental examination, including the production of molds, wax impressions, and photographs of his teeth. Dr. Johnson's conclusion at the end of this more detailed analysis was the same: Stinson's teeth matched the bite marks on the victim.

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Blinka was not quite convinced and wanted a second opinion. So Jackelen and Gauger flew to Las Vegas to meet with Dr. Raymond Rawson, a forensic odontologist on the staff of the Clark County Coroner's Office in Nevada. Dr. Rawson was also an adjunct professor of biology at the University of Las Vegas and, like Dr. Johnson, a diplomate of the American Board of Forensic Odontology. Dr. Rawson had not been involved in the case to that point but agreed to examine the evidence and possibly render an opinion. After a brief look at the evidence in Gauger's hotel room, Dr. Rawson agreed with Dr. Johnson's opinion that Stinson's dentition matched the bite marks on Cychosz's body.

This corroboration satisfied Blinka. Stinson was arrested and charged with Cychosz's murder. The bite-mark evidence was the centerpiece of the prosecution, and Drs. Johnson and Rawson were the star witnesses. Before trial the prosecutor gave all the bite-mark evidence to Stinson's counsel and also provided a list of forensic odontologists available to the defense to independently review the bite-mark evidence and render an opinion. Indeed, Stinson's counsel hired one of these odontologists, but to no avail: The expert agreed with Drs. Johnson and Rawson that the bite-mark evidence implicated Stinson, so the defense attorney did not call him to testify at trial. On December 12, 1985, a jury found Stinson guilty. He was sentenced to life in prison.

Twenty-three years later, Stinson was exonerated with help from the Wisconsin Innocence Project after it was shown that DNA evidence collected from Cychosz's body excluded Stinson. The Innocence Project also enlisted a new panel of odontologists who reexamined the bite-mark evidence and determined that it too excluded Stinson. On January 30, 2009, the judgment was vacated and Stinson was released from prison. Not long after that, state experts matched the DNA evidence recovered from Cychosz's body with a DNA sample from Moses Price, who thereafter confessed to the murder. The charges against Stinson were dismissed.


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