Buckley v. Fitzsimmons, s. 89-2441

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation919 F.2d 1230
Docket Number89-2899 and 89-2900,Nos. 89-2441,s. 89-2441
PartiesStephen BUCKLEY, Plaintiff-Appellee-Cross-Appellant, v. J. Michael FITZSIMMONS, et al., Defendants-Appellants-Cross-Appellees.
Decision Date14 January 1991

G. Flint Taylor, John L. Stainthorp, Peoples Law Office, Chicago, Ill., for plaintiff-appellee.

James G. Sotos, Charles E. Hervas, James R. Schirott, Michael W. Condon, Schirott & Associates, Itasca, Ill., Mary P. Wetting, Office of Atty. Gen., Topeka Kan., for defendant-appellant County of DuPage.

Charles E. Hervas, Phillip A. Luetkehans, James G. Sotos, James R. Schirott, Michael W. Condon, Schirott & Associates, Itasca, Ill., Steve A. Schwarm, Asst. Atty. Gen., Office of Atty. Gen., Topeka, Kan., for defendant-appellant J. Michael Fitzsimmons.

James G. Sotos, Charles E. Hervas, James R. Schirott, Michael W. Condon, Schirott & Associates, Itasca, Ill., Steve A. Schwarm, Asst. Atty. Gen., Topeka, Kan., for defendants-appellees Thomas Knight, Patrick King, James Ryan and Robert Kilander.

Before WOOD, Jr., and EASTERBROOK, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

EASTERBROOK, Circuit Judge.

Probable cause is enough to initiate a criminal prosecution. It takes proof beyond a reasonable doubt to convict. That difference, together with uncertainties in what the evidence will show, implies that some innocent persons will be prosecuted. Trial is supposed to filter out the innocent, a task it serves well if imperfectly.

Accusation and trial are wrenching experiences, especially for the innocent. On top of trauma comes expense and often the loss of freedom pending disposition. How should society respond when an innocent person is prosecuted? Apologies are mild balm at best. Money is more effective. Compensation not only would aid the involuntary participant in the criminal justice system but also would induce prosecutors to evaluate cases more carefully, taking account of the costs to the defendants. Yet prosecutors rarely apologize, and states do not compensate defendants acquitted by the jury, or against whom charges are dropped. Often neither apology nor compensation is in order, because the suspect is guilty but for one reason or another is not convicted. Sometimes both are called for, but they are almost never forthcoming.

Innocent defendants, rightly feeling put upon, may respond to this governmental indifference by turning on their accusers, making them defendants in turn. They demand that the prosecutors, police, and witnesses dig into their own pockets to provide recompense. If courts could quickly and reliably identify malicious prosecutions, those in which the case was manufactured or conviction unattainable, it might make sense to award damages, to cause prosecutors with the power to destroy others' lives to do their jobs with the care that their responsibilities require. But the legal system is neither quick nor infallible. To allow a search for malicious or weak prosecutions is to license litigation at any defendant's option. And if malicious prosecutions are rare, then even a low rate of error in suits against prosecutors will lead to more false positives than to vindication of just claims. Given the error inevitable in our legal system--in criminal prosecutions as well as in follow-on civil litigation--a system of personal liability for prosecutors and witnesses would do more to discourage the activity of criminal prosecution (or testifying) than to make the prosecutors and witnesses more careful and honest. Because criminal prosecutions regularly do more good than bad, and because prosecutors have no way to use these social benefits to offset the damages they could be called on to pay when their activities injure the innocent, courts have concluded that both prosecutors and witnesses generally are immune from damages on account of errors. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983).

How far does this immunity extend? Does it cover the process of investigating and evaluating a case as well as the trial itself? If so, it could throw a blanket of immunity over acts that may lead to liability when performed by police, see Jones v. Chicago, 856 F.2d 985 (7th Cir.1988); Smith v. Springer, 859 F.2d 31 (7th Cir.1988), decision after remand under the name Smith v. Chicago, 913 F.2d 469 (7th Cir.1990). If not, criminal defendants can evade the immunity established by Imbler by asserting that, before the trial began, the prosecutors prepared to do precisely what they did. That would create the same risk of error, and exposure to retaliatory counterstrikes, that Imbler and Briscoe are meant to avert. We must decide how far immunity doctrines extend in a world in which the most logical option, governmental liability, may well be closed by Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).


Jeanine Nicarico, 10 years old, was home with the flu on Friday, February 25, 1983. Her mother Patricia, a teacher, came home to fix lunch for Jeanine, then returned to school. Not long after that someone kicked in the front door to the Nicarico home, trussed Jeanine up in bedclothes, and carried her off. Marks on the walls and door jamb bore mute witness to her efforts to resist. The intruder took no valuables--nothing other than the blanket and its occupant. People v. Hernandez, 121 Ill.2d 293, 117 Ill.Dec. 914, 915-16, 521 N.E.2d 25, 26-27 (1988).

The kidnapper drove Jeanine into the country and pulled her nightgown over her head. Unsuccessful in a determined attempt to penetrate her vagina, the kidnapper raped Jeanine in the anus. Now he became her assassin. He caved in her skull with five blows from a tire iron or baseball bat and threw her into the mud 45 feet off the Illinois Prairie Path, a hiking trail. Jeanine died within four hours of the time she ate lunch with her mother. The police found the body on February 27, and the manhunt began.

John Sam, the detective with the DuPage County Sheriff's Police leading the investigation, concentrated on the principal clue the intruder left behind: a clear print (the "bootprint") of the sole of a shoe appeared on the Nicaricos' door. While other detectives interviewed neighbors and persons who might have seen the kidnapper drop Jeanine's body near the trail, Sam tried to find the owner of the shoe. A $10,000 reward attracted Alex Hernandez, a petty thief with low intelligence and a desire to become a police officer. Hernandez said that he overheard a conversation between Stephen Buckley and "Ricky" in which "Ricky" talked about the crime. Sam tracked down Buckley, an unemployed high school dropout. Buckley admitted having shoes with soles like those in the bootprint on the door. He brought them to Sam for analysis.

John Gorayczyk, the head of the identification section in the DuPage County crime laboratory, decided that Buckley's shoes did not match the bootprint: the soles were the same, but the heels were a little different. Edward R. German, a forensic scientist in the Illinois state crime laboratory, was only a little more positive: he concluded that Buckley's shoe "could have at best" made the print. Prosecutors then sent the shoe to Robert Olsen, with the Kansas Bureau of Identification, who concluded that Buckley's shoe "probably" matched the marks on the door. Prosecutors also brought in Louise Robbins, a professor of anthropology at the University of North Carolina at Greensboro. Robbins, who later testified that she could identify the wearer of a shoe with certainty even if she had only prints made with different shoes, concluded that Buckley positively made the marks on the Nicaricos' door.

Meanwhile the investigation was proceeding on other fronts. Two witnesses--one near the Nicaricos' house, another near the Prairie Path--identified Buckley as the driver of a green Ford Granada, missing a hubcap, that left the neighborhood and arrived at the Prairie Path at the right times. These witnesses were positive, even though their earlier descriptions did not match Buckley's features. (One of them initially told police that the driver, in his late 20s or early 30s, wore granny glasses and was clean shaven; Buckley, 20, had a mustache and does not wear glasses.) Hernandez said that he took some role in Jeanine's abduction and implicated Rolando Cruz, who also confessed (although neither to the rape nor to the murder); both said that Buckley drove the car. Neither Cruz nor Hernandez, both of whom have substantially below average intelligence, could give important details of the offense, but some circumstantial evidence implicated each.

John Sam arrested Buckley, Cruz, and Hernandez, and they were put on trial for their lives. But Sam began to question the conclusion that the three did it--partly because of discrepancies in the identifications and other details (witnesses reported only a single person in the car); partly because none of the three had a record of sex offenses; partly because Cruz and Hernandez contended that they came to burgle the Nicarico house and took some items, though nothing was missing; but mostly because he was convinced that men who violate little girls do not work in teams. Sex crimes he had solved were solitary aggressions. Sam told his superiors they had the wrong defendants. When they would not listen, Sam quit the force and offered to testify for the defense. James Tuohy, The DuPage Cover-Up, Chicago Lawyer 1, 9-14 (May 1986).

A jury convicted Cruz and Hernandez of murder, among other crimes, and the judge sentenced both to death. It was unable to reach a verdict about Buckley, and the prosecutor scheduled a second trial. While prosecution and defense were preparing for retrial, police in LaSalle County arrested Brian Dugan for the abduction,...

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