Avery v. City of Milwaukee, 013017 FED7, 15-3175

Docket Nº:15-3175
Opinion Judge:Sykes, Circuit Judge.
Party Name:William D. Avery, Plaintiff-Appellant, v. City of Milwaukee, et al., Defendants-Appellees.
Judge Panel:Before Wood, Chief Judge, Sykes and Hamilton, Circuit Judges.
Case Date:January 30, 2017
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

William D. Avery, Plaintiff-Appellant,


City of Milwaukee, et al., Defendants-Appellees.

No. 15-3175

United States Court of Appeals, Seventh Circuit

January 30, 2017

Argued February 23, 2016

Appeal from the United States District Court for the Eastern District of Wisconsin. No. ll-C-408 - Rudolph T. Randa, Judge.

Before Wood, Chief Judge, Sykes and Hamilton, Circuit Judges.

Sykes, Circuit Judge.

In February 1998 Maryetta Griffin was raped and strangled to death and left in an abandoned garage on Milwaukee's north side. In 2004 Milwaukee police arrested William Avery for the crime. He was convicted of first-degree homicide and spent six years in prison before DNA evidence proved that Walter Ellis, a serial killer linked to nine similar homicides, was responsible for the murder. In 2010 Avery was released from prison; this wrongful-conviction suit followed. Avery alleged that Milwaukee detectives concocted a fake confession and induced three jailhouse informants to falsely incriminate him-evidence that was ultimately used to convict him. He also claimed that the detectives failed to disclose, as required by Brady v. Maryland, 373 U.S. 83 (1963), impeachment evidence about how they obtained the false statements from the informants. Finally, Avery added a claim against the City of Milwaukee under Monell v. Department of Social Services, 436 U.S. 658 (1978).

The district judge rejected the Brady claims on summary judgment, reasoning that the detectives had no duty to disclose the impeachment evidence because Avery already knew the informants' statements were false. The remaining claims were tried to a jury, which found two of the detectives liable for violating Avery's due-process rights. The jury also found the City liable and awarded $1 million in damages.

Avery's victory was short-lived. The judge invalidated the verdict against the detectives based on what he said were "mixed signals" coming from this court on whether an officer's fabrication of evidence is actionable as a due-process violation. The judge also set aside the verdict against the City, holding that without a constitutional violation by the detectives, Monell liability was not possible.

We reverse. Avery's due-process claims fall comfortably within our decision in Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir. 2012), so the jury's verdict was legally sound and must be reinstated in its entirety. The Brady claims, too, must be revived. That Avery knew the informants' statements were false did not relieve the detectives of their duty to disclose impeachment evidence. Avery is entitled to resume litigation of these claims.

I. Background

Maryetta Griffin, known as "Mercedes, " was sexually assaulted and strangled to death in the early morning hours of February 17, 1998. Her body was found in an abandoned garage in a decrepit and crime-ridden neighborhood on Milwaukee's north side. Griffin's death was tragic; so was her life. She made her living as a prostitute and was addicted to crack cocaine.

William Avery knew Griffin. He ran a drug house in the neighborhood and occasionally exchanged drugs for sex with prostitutes in the area. Griffin, along with several other prostitutes, had been at Avery's drug house the day before her death.

About a month after Griffin was killed, detectives from the Milwaukee Police Department asked Avery to come to the station to speak with them about the murder. Avery complied; he denied any involvement in her death. After two prolonged rounds of interrogation by four different detectives, he was sent to a holding cell for the night. The next day two detectives from the day before-Daniel Phillips and Gilbert Hernandez-resumed the interrogation. Avery again denied involvement in the crime. The detectives continued to badger him, accusing him of killing Griffin. They reminded him that Mercedes was last seen alive at his drug house and suggested that perhaps she had tried to steal from him and a struggle or chase ensued. Maybe she fell down the stairs and broke her neck during the struggle? Avery denied that this happened.

Ignoring his persistent denials, Detectives Phillips and Hernandez prepared reports falsely stating that Avery confessed to the murder and gave the following account of events: Mercedes was at his drug house on the night in question; he fell asleep and woke up to find her stealing cash from his pockets; he remembered fighting with her but couldn't recall what happened next, though he did remember telling a third person that he "killed this bitch"; and finally, he admitted that he killed Mercedes but couldn't remember how he did it.

Detectives Phillips and Hernandez gave their reports to Assistant District Attorney Mark Williams, Milwaukee's chief homicide prosecutor. Williams concluded that the evidence was insufficient to support a homicide charge. Avery was instead charged with state narcotics offenses arising from his drug-house operation. He was convicted and began serving a short prison term.

While in prison Avery met fellow inmates Keith Randolph, Antron Kent, and Jeffrey Kimbrough. All three men eventually became prosecution witnesses at his trial for Griffin's murder. Avery's Brady claims are premised on the failure by Milwaukee detectives to disclose details about their interrogations of these jailhouse informants-evidence that could have been used to impeach the informants when they testified at trial. For present purposes, the defendants do not contest the factual basis for Avery's Brady claims, so the following account is his version of events.

Detectives Hernandez and Katherine Hein interviewed Randolph in prison in October 2003.1 The two detectives supplied him with details about the Griffin homicide, told him to point the finger at Avery, and promised in return to help him win a reduced sentence. Randolph eventually succumbed to the pressure; he told them that Avery had admitted that he killed Griffin. The detectives prepared reports to that effect but omitted facts about the interrogation that could have been used for impeachment purposes. Randolph was called as a prosecution witness at Avery's murder trial but refused to perjure himself by repeating the statement he gave to the detectives. The prosecution was permitted to introduce the detectives' reports into evidence, so the jury heard Randolph's incriminating statement anyway-without the details about the interrogation that might have caused the jurors to doubt its reliability.

The story line on Kent is similar. Detectives coached and pressured him on multiple occasions over several years: in phone calls from Detective Kevin Armbruster; in an interview with Detectives Armbruster and Timothy Heier; in an interview with Detectives Hernandez and Hein; in another meeting with Detective Heier. The upshot is that like Randolph, Kent eventually gave in and said that Avery told him he strangled Griffin to death. Kent testified to that effect at Avery's trial. Again, the circumstances of the interrogation- that the detectives coached and pressured Kent to implicate Avery-were not disclosed to the defense.

Detectives Armbruster and Heier were the first to question Kimbrough, and Detectives Hein and Hernandez conducted a follow-up interview. As with Randolph and Kent, the detectives fed Kimbrough details about the Griffin murder and pressured him to implicate Avery. They eventually got what they were looking for: Kimbrough told them that Avery admitted that he killed Griffin. Kimbrough later recanted this statement and tried to back out of testifying at Avery's trial, but Detective Heier told him that he "had to" testify. Kimbrough did as he was told; he took the stand and testified that Avery told him he killed Griffin. Neither the recantation nor the facts about Kimbrough's interrogation were disclosed to the defense.

Avery completed his narcotics sentence in June 2004 and was released from prison...

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