Robert Lee Stinson v. James Gauger

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

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

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 evidencesuppression

claim is wholly dependent on the allegation of

fabrication, which is unsupported by the record. Accordingly,

we reverse and remand with instructions to enterjudgment 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

Nos. 13-3343, 13-3346 & 13-3347 3

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 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

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

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 anothertooth 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

Nos. 13-3343, 13-3346 & 13-3347 5

open a John Doe proceeding—a unique procedure authorized

by Wisconsinlaw that allowsdistrict 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.

Blinka was not quite convinced and wanted a second

opinion. So Johnson 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.

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

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.

In 2010 Gauger copyrighted a memoir entitled The Memo

Book, recounting his life as a Milwaukee police officer and

detective. In it he described the Ricky Johnson and Ione

Cychosz homicide investigations and revealed forthe first time

that he and Jackelen had met with Dr. Johnson before they

Nos. 13-3343, 13-3346 & 13-3347 7

began canvassing the neighborhood around the Cychosz

murder scene.

After his release from prison, Stinson filed this civil-rights

lawsuit against Gauger and Drs. Johnson and Rawson alleging

that they conspired to frame him for the Cychosz murder. He

retained a new expert odontologist, Dr. C. Michael Bowers,

who agreed with the Innocence Project panel thatthe bite-mark

evidence clearly excluded Stinson. Dr. Bowers and the panel

also agreed that the forensic evaluations by Drs. Johnson and

Rawson fell far below any accepted standard of forensic

odontology. In Dr. Bowers’s view, Drs. Johnson and Rawson

went to great lengths to fit the bite-mark evidence to Stinson’s

dentition. Relying heavily on Dr. Bowers’s opinion, Stinson

alleges in his suit that Drs. Johnson and Rawson fabricated

evidence against him (namely, their expert opinions), that

Gauger solicited or conspired with them to do so, and that all

three defendants covered up the fabrication. The fabrication

claim rests on Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir.

2012); the cover-up claim alleges that the defendants violated

the due-process disclosure duty announced in Brady v.

Maryland, 373 U.S. 83 (1963).

The defendants moved for summary judgment based on

absolute immunity, or alternatively, qualified immunity from

suit. The district judge rejected the claim of absolute immunity

because Stinson’s fabrication claim focused on misconduct that

occurred during the investigation, before the case was charged,

and not on the defendants’ role as witnesses at trial. The judge

also rejected the claim of qualified immunity, concluding that

Dr. Bowers’s affidavit, along with Gauger’s belief that Stinson

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

was responsible forthe still-unsolved Ricky Johnson homicide,

supported Stinson’s claim that the defendants conspired to

frame him. The judge accordingly denied summary judgment.

All three defendants appealed.

II. Discussion

A. Appellate Jurisdiction

An order denying summary judgment normally lacks the

finality required for appellate jurisdiction under 28 U.S.C.

§ 1291, Gutierrez v. Kermon, 722 F.3d 1003, 1009 (7th Cir. 2013),

but orders denying claims of immunity from suit are an

exception,Mitchell v. Forsyth, 472 U.S. 511, 524–30 (1985). These

orders are effectively final with respect to the defendant’s right

to avoid the burdens of litigation and trial, so appellate

jurisdiction arises under § 1291 pursuant to the collateral-order

doctrine, which permits immediate appeal of a “small class” of

orders that “finally determine claims of right separable from,

and collateral to, rights asserted in the action, too important to

be denied review and too independent of the cause itself to

require that appellate consideration be deferreduntilthewhole

case is adjudicated.” Id. at 524–25 (quoting Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 546 (1949)).

This principle is subject to an important limitation,

however. In Johnson v. Jones, the Supreme Court explained that

“a defendant, entitled to invoke a qualified immunity defense,

may not appeal a district court’s summary judgment order

insofar as that order determines whether or not the pretrial

record sets forth a ‘genuine’ issue of fact fortrial.” 515 U.S. 304,

Nos. 13-3343, 13-3346 & 13-3347 9

319 (1995). The plaintiff in Johnson alleged that five police

officers used excessive force during an arrest, beating him so

severely that he required hospitalization for broken ribs. Id. at

307. Three of the officers moved for summary judgment,

asserting qualified immunity and arguing that the plaintiff had

no evidence that any of them were involved in the beating. Id.

at 307–08. Relying on the plaintiff’s statement that some

unidentified officers beat him and the officers’ deposition

admissions that they had been present at the scene, the district

court determined that the plaintiff had raised a genuine factual

dispute about whether these particular officers participated in

the beating and on that basis denied the qualified-immunity

motion. Id. The officers appealed, arguing that the summaryjudgment

record did not support the plaintiff’s version of the

facts. Id. at 308. Because the district court’s ruling entailed only

a determination of the sufficiency of the evidence—a purely

factual question—the Supreme Court held that it was not

immediately appealable. See id. at 313–17.

At first blush Johnson might be seen as foreclosing this

appeal, but the Court’s decision must be read in light of its

later decisions in Scott v. Harris, 550 U.S. 372 (2007), and

Plumhoff v. Rickard, 134 S. Ct. 2012 (2014). At issue in Scott was

whether a police officer used excessive force when he rammed

the plaintiff’s fleeing car during a high-speed chase, a question

that turned in part on whether a reasonable officer would have

believed that the plaintiff’s flight posed a danger to the public.

The district court denied the officer’s claim of qualified

immunity, holding that a jury could side with the plaintiff and

find that a reasonable officer would not have believed that the

plaintiff’s flight posed a threat to the safety of others. See

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

Harris v. Coweta County, No. CIVA 3:01CV148 WBH, 2003 WL

25419527, at *5 (N.D. Ga. Sept. 25, 2003). The Eleventh Circuit

affirmed, Harris v. Coweta County, 433 F.3d 807, 816 (11th Cir.

2005), but the Supreme Court reversed, holding that the

plaintiff’s story was “blatantly contradicted by the record,”

which included a video recording of the chase. 550 U.S. at 380.

The qualified-immunity question in Scott therefore turned

on a pure question of law: “whether[the officer’s] actions were

objectively reasonable” under the Fourth Amendment in light

of the danger created by the plaintiff’s high-speed flight, as

captured on the video recording. Id. at 381. The Court had

“little difficulty” concluding that “it was reasonable for [the

officer] to take the action that he did.” Id. at 384.

The Court’s opinion in Scott does not mention Johnson, but

the decision inescapably implies that Johnson should not be

read too expansively. The Court made this point explicit in

Plumhoff, which specifically addressed the limits of Johnson’s

no-jurisdiction holding in light of Scott. Plumhoff, like Scott,

involved a high-speed police chase: The claim in Plumhoff was

that police used excessive force by shooting at a fleeing car.

134 S. Ct. at 2017–18. Like the district court in Scott, the district

court in Plumhoff found a genuine factual dispute about the

degree of danger posed by the driver and thus rejected the

officers’ claim of qualified immunity. Applying Johnson, the

Sixth Circuit initially determined that it lacked jurisdiction to

hear the officers’ appeal, but the court later reversed course

and affirmed the district court on the merits. Id.

The Supreme Court reversed. Addressing the question of

appellate jurisdiction, the Court explained that unlike the

Nos. 13-3343, 13-3346 & 13-3347 11

officers in Johnson, the officers in Plumhoff weren’t contesting a

purely factual issue; instead, they raised a question of law. Id.

at 2019. They did not claim, for example, “that other officers

were responsible for [the] shooting … ; rather, they

contend[ed] that their conduct did not violate the Fourth

Amendment and, in any event, did not violate clearly

established law.” Id. In other words, they acknowledged for

purposes of their summary-judgment motion that they had

fired shots at the fleeing car, but they argued that the shooting

was a reasonable response to the danger the high-speed chase

created, or in the alternative, that a reasonable officer would

not have known that the shooting was unjustified in light of

that danger.

The Supreme Court explained that these were “legal

issues … quite different from any purely factual issues that the

trial court might confront if the case were tried.” Id. As such,

the Court held that Johnson did not apply. Id. The Court went

on to conclude that the case was indistinguishable from Scott,

and the record unequivocally showed that the driver posed a

serious risk to public safety, justifying the officers’ actions. See

id. at 2021–22. Alternatively, the Court held that the officers

were entitled to qualified immunity. Id. at 2024.

Scott and Plumhoff make it clear that Johnson should not be

understood as establishing a categorical bar to immediate

appellate review of an order denying immunity whenever the

lower court has determined that facts are in dispute. The

jurisdictional inquiry requires a more nuanced assessment of

the specific immunity claim asserted in the case to determine

whether the appeal raises a question of law, as in Plumhoff and

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

Scott, or merely a dispute about historical facts, as in Johnson.

Here, the defendants have accepted Stinson’s version of the

historical facts for present purposes; they argue that those

facts, even with inferences drawn in Stinson’s favor, do not

amount to a violation of a clearly established constitutional

right. That is the legal question at the heart of a qualifiedimmunity

claim. The district court’s order qualifies for

immediate appeal.

B. Absolute Immunity

Our jurisdiction secure, we begin with the odontologists’

claimof absolute immunity. Witnesseshave absolute immunity

from suit on claims stemming from theirtestimony at trial and,

as a corollary, from their preparation to testify at trial. See

Rehberg v. Paulk, 132 S. Ct. 1497, 1506–07 (2012); Briscoe v.

LaHue, 460 U.S. 325, 326 (1983). Even if Johnson and Rawson

testified falsely at Stinson’s trial, that testimony can’t be the

basis of a civil suit against them. The principle underlying this

expansive immunity is that without it, witnesses might be

reticent to testify or might hedge their testimony to reduce the

chance of a retaliatory or harassing lawsuit against them. See

Rehberg, 132 S. Ct. at 1505. Moreover, civil liability is not

considered necessary to deter false testimony; the threat of

criminal prosecution for perjury is a sufficient deterrent. See id.

Drs. Johnson and Rawson argue that all of Stinson’s claims

arise from their trial testimony or its preparation. Not so.

Stinson’s claims focus primarily on actions the two

odontologists took while investigating the Cychosz murder.

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

That’s a key distinction in the context of absolute immunity. In

Buckley v. Fitzsimmons, or Buckley III as it’s known in this

circuit, the Supreme Court held that a prosecutor’s absolute

immunity covers allegations of misconduct committed during

trial and in preparing for trial, but not misconduct committed

while investigating the case. 509 U.S. 259, 273 (1993). “There is

a difference,” the Court said, “between the advocate’s role in

evaluating evidence and interviewing witnesses as he prepares

for trial, on the one hand, and the detective’s role in searching

for the clues and corroboration that might give him probable

cause to recommend that a suspect be arrested, on the other

hand.” Id. A prosecutor who participates in a criminal

investigation performs essentially the same function as a

detective, so as a useful shorthand, the Court held that a

prosecutor’s conduct before probable cause exists ordinarily

should be classified as investigative work rather than trial

preparation, and as such is not covered by absolute immunity.

See id. at 274.

Even after probable cause exists, a prosecutor might

continue acting as an investigator, in which case absolute

immunity remains inapplicable. See id. at 274 n.5. Whetherthis

investigative work is later used at trial is irrelevant: “A

prosecutor may not shield his investigative work with the aegis

of absolute immunity merely because, after a suspect is

eventually arrested, indicted, and tried, that work may be

retrospectively described as ‘preparation’ for a possible trial.”

Id. at 276.

If a prosecutor isn’t absolutely immune for misconduct

occurringduring aninvestigation, before probable cause exists,

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

then it’s hard to see how a forensic expert working with the

prosecutor to develop probable cause would be protected by

absolute immunity. The immunities for prosecutors and

witnesses derive from the same common-law immunity that

covers all essential participants in a trial, and both exist to

protect the truth-seeking function of trials by allowing

participants to speak and act freely without threat of civil

liability. See Briscoe, 460 U.S. at 334–36 & n.15.

Indeed, the Supreme Court recently noted, if only in

passing, that the distinction drawn in Buckley III—between

alleged misconduct during trial and trial preparation (for

which a prosecutor is absolutely immune) and alleged

misconduct during an investigation (for which a prosecutor

has only qualified immunity)—applies to witnesses as well. In

Rehberg the Court held that a witness is entitled to absolute

immunity for his testimony before a grand jury and for

preparing grand-jury testimony. 132 S. Ct. at 1507. The Court

was careful to note, however, that absolute immunity does not

extend “to all activity that a witness conducts outside of the

grand jury room. For example, we have accorded only

qualified immunity to law enforcement officials who falsify

affidavits … and fabricate evidence concerning an unsolved

crime.” Id. at 1507 n.1 (citing, among other cases, Buckley III,

509 U.S. at 272–76).

Here, Stinson accuses the odontologists of fabricating their

opinions during the investigative phase of the Cychosz case,

before probable cause existed. In light of Rehberg and the

principles outlined in Buckley III, absolute immunity does not

apply to this alleged misconduct.

Nos. 13-3343, 13-3346 & 13-3347 15

Finally, we note that absolute immunity does not protect

a witness who violates a Brady obligation by suppressing

material exculpatory information concerning the investigation

of a crime. See Manning v. Miller, 355 F.3d 1028, 1033 (7th Cir.

2004) (holding that absolute immunity did not apply to

witnesses accused of concealing their fabrication of evidence);

Ienco v. City of Chicago, 286 F.3d 994, 1000 (7th Cir. 2002)

(“Neither the withholding of exculpatory information nor the

initiation of constitutionally infirm criminal proceedings is

protected by absolute immunity.”).

C. Qualified Immunity

Although not absolutely immune from suit, the defendants

remain protected by qualified immunity unless Stinson has

evidence showing that their conduct violated a constitutional

right and the right was clearly established at the time of their

actions. See Pearson v. Callahan, 555 U.S. 223, 243–44 (2009).

Relying on Whitlock, he alleges that the odontologists violated

his Fourteenth Amendment right to due process by fabricating

their bite-mark opinions and that all three defendants took part

in a conspiracy to frame him with this fabricated evidence. He

also alleges that the defendants engaged in a cover-up by

suppressing evidence of the fabrication in violation of Brady.

1. Fabrication of Evidence

The core of Stinson’s case is his contention that

Drs. Johnson and Rawson falsified their expert opinions and

that Gauger solicited or conspired with them to do so. Recent

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

cases in this circuit hold that a prosecutor who fabricates

evidence against a suspect and later uses that evidence to

convict him violates due process, and this due-process right

was clearly established by at least the early 1980s. See Fields v.

Wharrie (“Fields II”), 740 F.3d 1107, 1114 (7th Cir. 2014);

Whitlock, 682 F.3d at 585–86. The constitutional violation occurs

when the evidence is fabricated, not when the fabricated

evidence is later introduced at trial—a crucial distinction

because the prosecutor would have absolute immunity for any

constitutional violation committed during the trial. See, e.g.,

Fields v. Wharrie(“Fields I”), 672 F.3d 505, 517–18 (7th Cir. 2012);

Buckley v. Fitzsimmons (“Buckley IV”), 20 F.3d 789, 794–95 (7th

Cir. 1994).

It’s not entirely clear that the same reasoning applies to

police officers and expert witnesses who are alleged to have

fabricated evidence during an investigation. Unlike

prosecutors, police investigators face liability for failing to

disclose their own fabrication of evidence. See, e.g., Manning,

355 F.3d at 1034. That’s because immunity doesn’t protect an

officer who fails to disclose material exculpatory evidence as

required by Brady, see id. at 1033, even though a prosecutor

who did the same thing would have absolute immunity forthe

suppression, see Fields I, 672 F.3d at 514.

Moreover, a line of cases in this circuit has squarely held

that a police officer’s fabrication of evidence (as distinct from

his suppression of material exculpatory evidence) is not

actionable as a violation of due process as long as state law

provides an adequate remedy for the fabrication—usually in

the form of a malicious-prosecution tort action. See, e.g.,

Nos. 13-3343, 13-3346 & 13-3347 17

McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir. 2003). Under

these cases due process is satisfied as long as the state permits

a suit against the culpable officer afterthe fact. See id.; Newsome

v. McCabe, 256 F.3d 747, 750–51 (7th Cir. 2001). Whitlock did not

address this line of cases. If they remain good law, then the

due-process claim against prosecutors recognized in Whitlock

and applied in Fields II might not be available against police

officers (and other members of the investigative team, like

forensic experts) unless state law lacks an adequate tort

remedy for the fabrication of evidence.

We don’t need to resolve this question, however, because

Stinson’s claims fail even assuming Whitlock and Fields II apply

to state actors other than prosecutors. See Petty, 754 F.3d at

421–22 (declining to address the relationship between McCann

and Whitlock because plaintiff’s claims failed even if Whitlock

applied to police officers). The due-process liability recognized

in Whitlock arises only in a narrow category of cases involving

evidence fabrication; the panel took care to distinguish

constitutionally actionable fabrication claims from otherforms

of official wrongdoing—such as “[c]oercively interrogating

witnesses, paying witnesses for testimony, and

witness-shopping.” 682 F.3d at 584. The latter “may be

deplorable, and…may contribute to wrongful convictions, but

they do not necessarily add up to a constitutional violation

even when their fruits are introduced at trial.” Id.

Whitlock thus distinguished this court’s earlier decision in

Buckley IV, which rejected a due-process claim based on

allegations that investigators coerced and solicited false

testimony. Buckley involved a prosecutor who had been told by

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

three different experts that a bootprint left at the scene of the

crime could not reliably implicate Buckley, but sought a fourth

opinion from an expert who had a reputation for producing

scientifically unreliable opinion testimony. 20 F.3d at 796. She

told the prosecutor and investigators “that no one but Buckley

could have left the bootprint on the door—and that she could

identify the wearer of a shoe with certainty even if she had

only prints made with different shoes.” Id. We explained in

Buckley IV that “[n]either shopping for a favorable witness nor

hiring a practitioner of junk science is actionable” as a

constitutional violation; a due-process violation occurs,if at all,

only when the testimony is offered at trial without compliance

with Brady. Id. at 796–97.

Whitlock did not disagree with Buckley IV on this point.

Insteadthepaneldistinguishedshopping for unreliable experts

(among other wrongful conduct at issue in Buckley IV)from the

evidence falsification at issue in Whitlock, which involved

feeding witnesses details of crimes that they couldn’t have

known. See Whitlock, 682 F.3d at 572, 584. Why the distinction?

Because “[e]vidence collected with the[] kind[] of suspect

techniques [at issue in Buckley IV], unlike falsified evidence and

perjured testimony, may turn out to be true.” Id. at 584. Sorting

out reliable and unreliable evidence is an ordinary matter for

trial, through the crucible of the adversary process, so the use

of these suspect techniques doesn’t violate due process unless

the evidence is introduced at trial without adequate

safeguards, such as disclosure of all material exculpatory

evidence as required by Brady. Subsequent cases have

confirmed that the due-process cause of action recognized in

Whitlock is factually limited to cases involving evidence

Nos. 13-3343, 13-3346 & 13-3347 19

fabrication. See Petty, 754 F.3d at 422–23; see also Fields II,

740 F.3d at 1112.

Although Stinson tries to situate his case in this category,

the record on summary judgment, construed generously in his

favor, doesn’t come close to showing that Drs. Johnson and

Rawson fabricated their expert opinions. The district judge

thought a jury could find fabrication based on Dr. Bowers’s

opinion that “Johnson’s and Rawson’s conclusions were far

afield of what a reasonable forensic odontologist would have

concluded.” This view reflects an incorrect understanding of

the fabrication claim recognized in Whitlock. Nothing in

Whitlock or Fields II suggests that an inference of fabrication can

be drawn from an expert’s opinion that another expert

behaved unreasonably under prevailing standards in the field.

Arriving at an unreasonable expert opinion may suggest

negligence, perhaps even gross negligence, but it does not

amount to the intentional fabrication of evidence. A mistake in

forensic analysis—even an egregious mistake—is grievous

given the stakes in this context, but an expert who renders a

mistaken opinion is protected by qualified immunity.

Fabricated opinion evidence, for which the expert might not

have qualified immunity, must be both wrong and known to be

wrong by the expert. See Fields II, 740 F.3d at 1110.

Stinsonplaces special emphasis on thediscrepancy between

Dr.Johnson’s earlyhypothesis—that the murderer was missing

the right lateral incisor—and his ultimate opinion that

Stinson’s dentition matched the bite marks on Cychosz’s body.

(Recall that Stinson was missing his right central incisor, the

tooth just next to the right lateral incisor.) This discrepancy

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

suggests that forensic odontology is not very precise (raising

legitimate questions about its reliability), but it’s not evidence

that Dr. Johnson knew his opinion was false—i.e., that it was a

lie.

We acknowledge that it’s not easy to prove that an expert

knowingly falsified an opinion. We also recognize that the first

step toward proving that an expert was intentionally lying is

proving that his opinion was wrong. But to conclude that an

expert fabricated his opinion solely because it was

wrong—even grossly wrong—would collapse the essential

distinction between mistaken opinions (for which there is

immunity) and fabricated opinions (for which there is not).

Stinson’s fabrication claim is based entirely on the opinions of

new experts that Drs. Johnson and Rawson were terribly

wrong about the bite-mark evidence and that they used

unreliable methods falling far below the standards of their

profession. We do not second-guess this new opinionevidence,

but it demonstrates at most that the odontologists acted

unreasonably, not that they fabricated their opinions. Stinson

has nothing else to support his evidence-fabrication claim.

The related claim against Gauger is entirely dependent on

the viability of the evidence-fabrication claim against the

odontologists. Stinson contends that the detective solicited or

conspired with Drs. Johnson and Rawson to falsify their

opinions, or at least failed to intervene to prevent them from

doing so. Because no reasonable jury could find that the

odontologists violated Stinson’s due-process rights by

fabricating their opinions, Gauger too is entitled to qualified

immunity on this claim.

Nos. 13-3343, 13-3346 & 13-3347 21

2. Suppression of Evidence

Stinson also claims that the defendants suppressed

evidence in violation of the due-process disclosure duty

announced in Brady v. Maryland, 373 U.S. 150 (1972), and

expanded in Giglio v. United States, 405 U.S. 150 (1972). The

duty to disclose material exculpatory and impeachment

evidence extends to prosecutors and “others acting on the

government’s behalf in the case.” Kyles v. Whitley, 514 U.S. 419,

437 (1995). Thus, police officers who conceal exculpatory

evidence, or who fabricate evidence and fail to disclose the

fabrication, cannot claim the protection of qualified immunity.

See, e.g., Newsome, 256 F.3d at 752–53; Jones v. City of Chicago,

856 F.2d 985, 994 (7th Cir. 1988). We’ve suggested before that

the same reasoning applies in cases involving forensic experts

who work with the police on criminal investigations. See, e.g.,

Jones, 856 F.2d at 993 (upholding a jury verdict against a lab

technician who manipulated and concealed exculpatory

evidence). We need not decide whether it was clearly

established in 1984, when these events occurred, that forensic

experts working with the police have a duty to disclose

material exculpatory evidence; nothing in the record shows

that the duty was violated in Stinson’s case.

The Brady rule is not violated by the presentation of flawed

expert testimony at trial. See, e.g., Sornberger v. City of Knoxville,

Ill., 434 F.3d 1006, 1029 (7th Cir. 2006); Buie v. McAdory,

341 F.3d 623, 625–26 (7th Cir. 2003). Faulty expert testimony is

exposed through the adversary process; the Brady requirement

simply ensures that the defense has all material exculpatory

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

evidence for use during cross-examination. Here, the

prosecutor disclosed all the bite-mark evidence to the defense

and even provided a list of forensic odontologists to assist

Stinson’s counsel in preparing to contest Dr. Johnson’s and

Dr. Rawson’s opinions. Far from exposing flaws in their

analysis, Stinson’s forensic expert agreed thatthey had correctly

evaluated the bite-mark evidence and that it inculpated

Stinson. So Stinson’s own expert missed the errors later

identified by the Innocence Project and Dr. Bowers.

What’s left is Stinson’s allegation that Dr. Johnson failed to

disclose that he changed his mind about which tooth the killer

was missing. But the prosecution turned over Dr. Johnson’s

initial sketch to the defense, and the inconsistency between it

and his subsequent opinion was just as evident then as it is

today. See Carvajal v. Dominguez, 542 F.3d 561, 567 (7th Cir.

2008) (“There was nothing preventing Carvajal from

discovering and drawing out this discrepancy between the

officers’ stories during the suppression hearing. Suppression

does not occur when the defendant could have discovered it

himself through ‘reasonable diligence.’” (quoting Ienco v.

Angarone, 429 F.3d 680, 683 (7th Cir. 2005)). If the discrepancy

was relevant in assessing the quality or accuracy of

Dr. Johnson’s ultimate opinion, then Stinson and his expert

could have seized on the point at the time.

We have difficulty discerning what other evidence Stinson

thinks was concealed. He hasn’t pointed to any material

evidence that has recently come to light but wasn’t disclosed

in time for his trial. He points to Gauger’s memoir, which was

copyrighted in 2010, but the material information in The Memo

Nos. 13-3343, 13-3346 & 13-3347 23

Book—such as Gauger’s belief that Stinson was responsible for

Ricky Johnson’s murder—was known at the time of trial. The

only new fact revealed in The Memo Book was that Gauger and

Jackelen met with Dr. Johnson prior to canvassing the

neighborhood where the Cychosz murder occurred. The mere

fact of that meeting is not materially exculpatory.

3. Remaining Claims Against the Odontologists

Stinson’s remaining claims against Drs. Johnson and

Rawson are wholly dependent on his primary contention that

they fabricated their opinions and suppressed evidence of the

fabrication. For example, Stinson alleges that the odontologists

are liable for conspiracy, but a defendant cannot be liable “for

conspiring to commit an act that he may perform with

impunity.” House v. Belford, 956 F.2d 711, 720 (7th Cir. 1992).

Forthe same reason, Stinson’s claimagainst the odontogists for

failure to intervene also fails.

Forthe foregoing reasons, the defendants are not protected

by absolute immunity, but they are entitled to qualified

immunity. Accordingly, we REVERSE the judgment of the

district court and REMANDwith instructions to enter judgment

in favor of the defendants.