Stinson v. Gauger, s. 13-3343

• Decision Date: 25 August 2015
• Docket Number: 13-3346 & 13-3347,Nos. 13-3343,s. 13-3343
• Citation: 868 F.3d 516
• Parties: Robert Lee STINSON, Plaintiff-Appellee, v. James GAUGER, Lowell T. Johnson, and Raymond Rawson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

868 F.3d 516

Robert Lee STINSON, Plaintiff-Appellee,

v.James GAUGER, Lowell T. Johnson, and Raymond Rawson, Defendants-Appellants.

Nos. 13-3343

13-3346 & 13-3347

United States Court of Appeals, Seventh Circuit.

Argued June 6, 2014

Decided August 25, 2015

Reargued en banc February 9, 2016

Decided August 18, 2017

Michael Kanovitz, Attorney, LOEVY & LOEVY, Chicago, IL, for Plaintiff-Appellee.

Grant F. Langley, Jan A. Smokowicz, Attorneys, MILWAUKEE CITY ATTORNEY'S OFFICE, for Defendant-Appellant James Gauger.

W. Patrick Sullivan, M. Susan Maloney, Attorney, SIESENNOP & SULLIVAN, Milwaukee, WI, for Defendant-Appellant Raymond Rawson.

Jason J. Franckowiak, Attorney, OTJEN, GENDELMAN, ZITZER, JOHNSON & WEIR, S.C., Waukesha, WI, for Defendant-Appellant Lowell T. Johnson.

Before Wood, Chief Judge, and Bauer, Posner, Flaum, Easterbrook, Manion, Kanne, Rovner, Williams, Sykes, and Hamilton, Circuit Judges.

Williams, Circuit Judge.

Robert Stinson spent twenty-three years in jail for a murder he did not commit. No eyewitness testimony or fingerprints connected him to the murder. Two dentists testified as experts that Stinson's dentition matched the teeth marks on the victim's body, and a jury found Stinson guilty. After DNA evidence helped exonerate Stinson, he filed this civil suit against the lead detective and the two dentists alleging that they violated due process by fabricating the expert opinions and failing to disclose their agreement to fabricate. The district court denied the defendants' motions for summary judgment seeking qualified immunity after finding that sufficient evidence existed for Stinson to prevail on his claims at trial.

We conclude that we lack jurisdiction to hear the defendants' appeals of the denial of qualified immunity because those appeals fail to take the facts and reasonable inferences from the record in the light most favorable to Stinson and challenge the sufficiency of the evidence on questions of fact. As a consequence, Johnson v. Jones , 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) precludes interlocutory review. We do have jurisdiction to consider the district court's denial of absolute immunity to Johnson and Rawson. That denial was correct because Stinson's claims focus on their conduct while the murder was being investigated, not on their trial testimony or trial testimony preparation.

I. BACKGROUND

As this is an appeal from a ruling on summary judgment, the chronology that follows takes the facts in the light most favorable to Stinson as the non-moving party at summary judgment. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Ione Cychosz was murdered in Milwaukee, Wisconsin on November 3, 1984. Sixty photographs were taken of her body at the county medical examiner's office, including pictures of bite marks to her body. An assistant deputy medical examiner authorized the use of Dr. Lowell Johnson as a forensic odontology (the scientific study of teeth) consultant, and Johnson examined the bite marks on Cychosz's body. He identified eight complete or partial bite marks and took rubber impressions of the bite marks on Cychosz's right breast. Two days later he returned to the medical examiner's office to extract tissue from her right breast.

James Gauger and Tom Jackelen were assigned as the lead detectives to investigate Cychosz's murder. Before heading to the crime scene, Gauger reviewed the case file that had been assembled in the two to three days after the murder. According to Stinson's version of the events, and before Gauger and Jackelen's first visit to the crime scene on November 6, 1984, the two detectives met with Johnson. At that meeting, Johnson showed the detectives photos of the bite marks and a drawing he had made of the assailant's teeth. Johnson told the detectives the assailant was missing the tooth depicted in his sketch, a lateral incisor (a tooth one over from the upper front teeth). There is no police report memorializing any meeting between Johnson and either detective before November 15.

On November 6, Gauger and Jackelen went to the area where Cychosz's body was found to interview neighbors, and they visited the nearby home where Stinson lived. Jackelen questioned Stinson while Gauger interviewed Stinson's brother. Stinson is missing his right central incisor, or what is more commonly called the upper right front tooth. On Stinson, this tooth is fractured and decayed almost to the gum line.

After they finished their interviews, the two detectives met at the front of the house, and Jackelen told Gauger, "We have him." The detectives then went back to speak with Stinson and intentionally said something to make Stinson laugh so that his teeth would be visible. When Gauger saw that Stinson had a missing upper front tooth, he thought, according to his later memoir, The Memo Book , published long after Stinson's conviction, "There it was. The broken front tooth and the twisted tooth just like on the diagram and pictures." (At his deposition in this case, however, Gauger said that the missing tooth was on the upper right side and to the right of the front tooth.)

This was the not first time Gauger and Jackelen had questioned Stinson regarding a murder. Two years earlier, a man named Ricky Johnson was shot and killed during an attempted robbery, and Gauger and Jackelen were assigned to the case. Stinson told the detectives he had no information regarding who killed Ricky Johnson, and the detectives responded that they were "tired of all that bull* * * * story you telling." No charges were ever filed in the case, but Gauger wrote in The Memo Book that he believed Stinson and his friends murdered Ricky Johnson. Writing about the case in his memoir, Gauger said "[l]ots of people get away with murder" and maintained the case was still open "because we had the right guys, but couldn't prove it."

After the interview of Stinson at his home, the detectives met with prosecutors including Assistant District Attorney Dan Blinka. Blinka thought there was not sufficient evidence at that point to obtain a search warrant to examine Stinson's dentition.

Blinka called Johnson during the meeting and asked whether Johnson could make an identification from the bite marks on the body, and Johnson replied that under the right conditions he could, if he had a full make-up of the suspect's dentition.

On November 15, 1984, Gauger and Jackelen met with Johnson. The November 15 police report states that Johnson said the offender would have a missing or broken right central incisor (i.e., the upper right front tooth). That is the same tooth that the detectives had observed that Stinson was missing when they questioned him.

The next day, the detectives interviewed and photographed two other men with at least one missing or broken tooth. Johnson ruled them out as suspects in Cychosz's murder based only on looking at the photographs. Stinson's odontological expert in the current case, Dr. Michael Bowers, states there was no scientific basis for Johnson to exclude these two men by just looking at photographs.

At some point, a police sketch artist made a second sketch of the assailant's dentition. Johnson says he told the artist a tooth in the upper quadrant was missing but did not specify which one. The police artist used Johnson's initial sketch to make the police sketch. Consistent with Stinson's theory of Johnson's initial sketch, the police sketch reflects a missing or broken upper tooth that is not the upper right front tooth. Johnson says he did not use the police artist's sketch at any point after it was created.

On December 3, 1984, Stinson appeared in a Wisconsin state court "John Doe hearing" pursuant to subpoena as a person who might have knowledge or information bearing on an investigation. During this hearing, Jackelen testified that he observed that Stinson had missing and crooked front teeth consistent with the information he had received from Johnson. Johnson inspected Stinson's teeth at the hearing for fifteen to twenty seconds. Johnson asked for his sketch of the perpetrator's dentition, but Jackelen said he did not have a copy with him. Johnson then testified it was "remarkable" how similar Stinson's teeth were to the sketch and said that Stinson's teeth were consistent with what he expected from the assailant after his analysis of the bite marks. The judge then ordered Stinson to submit to a detailed dental examination, including the creation of wax molds of his teeth and photographs of his teeth, which he did.

Later, Johnson compared the molds and photographs of Stinson's teeth and the wax exemplars of Stinson's bite with the bite mark evidence from Cychosz's body, and he opined that Stinson's teeth were identical to those that caused the bite marks. Johnson conveyed that opinion to Gauger, Jackelen, and Blinka. Blinka met with Johnson and one or both of Gauger and Jackelen to review the evidence, and Johnson said that Stinson's dentition was consistent with that of the person who inflicted the bite marks on Cychosz.

However, that did not satisfy Blinka. He would not approve charges against Stinson without a second opinion from a forensic odontologist. So Johnson contacted Dr. Raymond Rawson about the case, with Johnson telling Gauger that he "wanted the best forensic odontologist in the United States to confirm his findings." Rawson had a private dental practice in Las Vegas, served as a forensic odontologist since 1976 and was a diplomat of the American Board of Forensic Odontology.

Johnson had also been a diplomat of the American Board of Forensic Odontology, and the two were friends and had known each other for at least seven years. On January 17, 1985, Gauger and Jackelen hand-delivered evidence, including Cychosz's preserved skin tissue and the dental molds and models of Stinson that Johnson had generated, to Rawson in Las Vegas. Rawson reviewed the evidence for one to three hours in Gauger's hotel room and verbally confirmed Johnson's...