Walter Goudy v. Rodney J. Cummings

In 1963 the Supreme Court announced

that the prosecution team has a duty under the Due Process

Clause of the Fourteenth Amendment to turn over material,

exculpatory evidence to criminal defendants. Brady v. Maryland,

373 U.S. 83 (1963); see also Kyles v. Whitley, 514 U.S. 419

(1995); United States v. Bagley, 473 U.S. 667 (1985). Walter

Goudy contends in this case that the state and local officials

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who pursued him for a 1993 murder failed to comply with

their Brady obligations, and that he is entitled to damages under

42 U.S.C. § 1983 for the years he spent in prison. That request

was based on his success in an earlier round of litigation,

which culminated with this court’s ruling that Goudy

was entitled to a writ of habeas corpus under 28 U.S.C. § 2254.

Goudy v. Basinger, 604 F.3d 394 (7th Cir. 2010) (Goudy I). The

state elected not to re‐try him; he was released; and 17 months

later he filed this suit.

The district court winnowed the section 1983 action down

to three allegations that the investigators in the case violated

his due process rights, by (1) subjecting him to an improper

show‐up procedure, (2) withholding a videotape showing a

line‐up in which several witnesses identified a different person

as the shooter, and (3) withholding interview notes showing

that the other suspect initially had denied any involvement

in the murder, but later switched his story. The court

granted summary judgment for the defendants on all aspects

of the case. We conclude that this was premature: Goudy presented

enough evidence on the second and third arguments

to move forward. We therefore reverse and remand for further

proceedings.

I

We can be brief about the underlying incident, which was

described by both the Indiana Supreme Court, in Goudy v.

State, 689 N.E.2d 686 (Ind. 1997), and by this court in our 2010

opinion. On October 3, 1993, two men fired shots into a car

occupied by several people, including Marvin McCloud and

Damon Nunn. The shooters killed McCloud, who had been

driving, and seriously injured Nunn. A number of people

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witnessed these events, including Jill Barclay, Jackie Barclay

(Jill’s sister), LaTonya Young, and Kaidi Harvell.

Police from Anderson, Indiana, where the shooting had

taken place, picked up Goudy at the Oasis Club on February

5, 1994, after they received an anonymous tip that one of the

shooters was there. One of the defendants, Detective Rodney

Cummings, contacted Jill Barclay and asked her to come to

the police station to make an identification. When she arrived

at the station, Detective Steve Napier, Cummings’s partner

and the other defendant here, told her that they were going to

show her a suspect in the shooting. Cummings then brought

Jill into a room with a one‐way mirror and showed her

Goudy; she identified him as one of the shooters. She then

talked to Jackie and told him that the shooter she saw looked

like one of their acquaintances.

Our focus, however, is on evidence that the jury never

heard, because the state never disclosed it to Goudy. First, the

state had three police reports that contained pertinent information.

We discussed these reports in our 2010 opinion:

The first report describes a phone call to police from

Jill Barclay in which she said she saw one of the gunmen

at an Indianapolis mall. She stated that she

thought he kept looking at her “over his shoulder” and

that she later saw him outside “attempting to look at

her license plate.” She later identified this man as

[Kaidi] Harvell and said she was positive he was one

of the gunmen.

604 F.3d at 397. The first police report also included information

about a photo spread that Jill Barclay, Jackie Barclay

(Jill’s sister), and LaTonya Young viewed. Jackie and LaTonya

4 No. 17‐3665

saw the shooting from across the street. All three women

“’positively and without hesitation’ identified Harvell as the

gunman on the driver’s side of McCloud’s car, and said he

wore brown clothing.” Id.

In addition to the photo lineup, there was an in‐person

lineup viewed by Nunn, Jill and Jackie Barclay, as well as another

witness, Donzetta Clay (who did not testify at trial).

Once again, the results favored Goudy: “Clay and the Barclay

sisters identified Harvell; Nunn identified a non‐suspect as

the shooter.” Id. Moreover, Goudy’s own counsel failed to introduce

a video confession by Goudy’s lookalike half‐brother,

Romeo Lee. In that video, Lee identified himself and Harvell

as the two shooters.

As we noted, after his conviction for murdering McCloud

and attempting to murder Nunn, Goudy sought postconviction

relief. He argued throughout these proceedings

that the state’s failure to comply with Brady had deprived him

of a fair trial and that he had received ineffective assistance of

counsel in violation of Strickland v. Washington, 466 U.S. 668

(1984).

Goudy was unsuccessful in the state courts, but in Goudy I

we found that the suppressed evidence was both favorable to

Goudy’s defense and material. Accordingly, we found that

Goudy was entitled to a writ of habeas corpus. Goudy I, 604

F.3d at 401. We found it unnecessary to rule on Goudy’s

Strickland claim. Id. at 401–02.

Goudy is now suing two of the investigators on the case,

Rodney Cummings and Steve Napier, for depriving him of

due process in violation of the Fourteenth Amendment. See

U.S. Const. amend. XIV; 42 U.S.C. § 1983. Although

No. 17‐3665 5

Cummings wore two hats—that of an investigator and later

that of the County Prosecutor—our focus is on his investigatory

work. The same is true of Napier. (We refer to them collectively

as the investigators, unless the context requires otherwise.)

In general, Goudy’s new case asserts the same due‐process

theory that formed the basis of the decision to issue the writ

in Goudy I: that he was deprived of a fair trial in violation of

his constitutional rights, as outlined in the Brady line of cases.

But the conduct for which he seeks to hold the investigators

liable is different from the actions and omissions at issue in

Goudy I. The issue in Goudy I involved material exculpatory

evidence that was not turned over to the defense, but that was

given to the prosecutors trying the case. Police officers generally

discharge their Brady obligations by turning over such evidence

to the prosecutors, who in turn have a duty to disclose

the evidence to the defense. Beaman v. Freesmeyer, 776 F.3d

500, 512 (7th Cir. 2015). (Notably, “the [Brady] rule encompasses

evidence known only to police investigators and not to

the prosecutor.” Strickler v. Greene, 527 U.S. 263, 280–81 (1999)

(cleaned up).) Cummings and Napier thus cannot be held liable

in their capacity as investigators for the failure of the trial

prosecutors to turn over the specific police reports at issue in

Goudy I.

But the three allegations that form the basis of Goudy’s

section 1983 action are new. We focus on two of the three identified

by the district court. The first is Goudy’s assertion that

Cummings withheld a videotape of the lineup in which multiple

witnesses identified Harvell as a shooter and Nunn identified

a non‐suspect. The second is his allegation that the investigators

both withheld interview notes—newly discovered

6 No. 17‐3665

in the course of this litigation—demonstrating that Harvell initially

denied being at the scene at all, contradicting his trial

testimony. Together, we refer to these arguments as the Brady

allegations. We do not reach Goudy’s third theory, which is

that the investigators’ decision to subject him to an unduly

suggestive “one‐man showup” also violated his rights and

tainted all future identifications on which the prosecution relied.

It is important to clarify that although the parties occasionally

refer to Goudy’s “Brady claims” or “identification procedure

claim,” his allegations do not give rise to separate claims

under section 1983. Goudy has presented a single claim: that

the defendants are liable for causing him to receive an unfair

trial in violation of his due process rights. Cf. Kyles, 514 U.S.

at 436 (materiality of suppressed evidence is considered collectively,

not item by item). We therefore look at Goudy’s allegations

as a whole, as did the district court.

The district court granted summary judgment on the entire

case in favor of the defendants. It found the videotape allegation

wanting because (among other reasons) there was

“no evidence” in the record to support a finding that Cummings

intentionally concealed it from the prosecutors. It also

found, with respect to the Harvell interview notes, that the

investigators had not suppressed them and that, in any event,

the notes were not material for Brady purposes. Finally, the

court held as a matter of law that the improper identification

procedure could not support either investigator’s liability, because

the prosecutors’ independent decision to introduce the

identification evidence at trial constituted an intervening

cause that broke the chain of causation.

No. 17‐3665 7

II

To show a Brady violation, a plaintiff must demonstrate (1)

that the evidence in question was favorable to his defense, either

because it had exculpatory or impeachment value; (2)

that the state “suppressed” the favorable evidence either willfully

or inadvertently; and (3) prejudice ensued, which occurs

if the evidence was material. Banks v. Dretke, 540 U.S. 668, 691

(2004); Carvajal v. Dominguez, 542 F.3d 561, 566–67 (7th Cir.

2008). The defendants do not dispute that the evidence in

question was favorable to Goudy. Accordingly, we move directly

to the question whether a reasonable jury could conclude

that any of the challenged evidence was suppressed. We

then consider the materiality of all the evidence for which the

record supports a reasonable inference of suppression.

A

We turn first to the videotape of the lineup. To show suppression,

Goudy must demonstrate that Cummings blocked

the video from disclosure “in time for the defendant to make

use of it” and that it “was not otherwise available to the defendant

through the exercise of reasonable diligence.” Carvajal,

542 F.3d at 567. (Napier was not involved with this aspect

of the case.)

In order properly to assess Cummings’s actions regarding

the videotape, we must review some background details. In

May 1994, while Cummings was still employed as an Anderson

police officer, then‐County Prosecutor William Lawler

opted to drop charges that previously had been filed against

Goudy in order to continue the investigation. Cummings,

who had graduated from law school a few years earlier, apparently

disagreed with this decision; he campaigned for

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Lawler’s job through the summer and fall of 1994. On September

1 of that year, while both the investigation and Cummings’s

ultimately successful campaign for County Prosecutor

were underway, the police conducted a lineup in which

multiple witnesses identified Kaidi Harvell as a shooter, and

victim Damon Nunn identified a non‐suspect. (Recall, too,

that during an earlier lineup in February 1994, Jill Barclay had

fingered Goudy.) Five days later, on September 6, 1994, Cummings

checked the video of the September 1 lineup out of the

Anderson Police Department Property Room.

We do not know where Cummings kept the video, nor do

we have a reliable accounting of its whereabouts at any point

between September 6, 1994, and November 22, 1995, when

Cummings returned the video to the police evidence room.

What we do know is that the following events occurred during

those intervening 14 months.

In November 1994, Cummings defeated Lawler in the

County Prosecutor election. Cummings took office on January

1, 1995, and on April 7, 1995, he decided to re‐charge Goudy

with the murder of McCloud and the attempted murder of

Nunn. At a pre‐trial hearing on October 23, 1995, Goudy

moved for the production of relevant videotapes (including

recordings of lineups), among other evidence, as well as an

in‐camera inspection of police reports to determine which

ones would be discoverable. The court ordered that the videotapes

should be made available, but it denied the defense’s

request for the police reports, finding them privileged under

Indiana’s work‐product doctrine. (Needless to say, Indiana’s

work‐product privilege does not override the Brady obligations

of its police and prosecutors. Indeed, the failure to

No. 17‐3665 9

produce the police reports was the basis for the issuance of

the writ in Goudy I. 604 F.3d at 401.)

On November 14, 1995, someone—trial prosecutor Maras‐

Roberts testified that it may have been her—added an entry

to a handwritten to‐do list that included the phrase “videos of

lineup?? still N/A,” which she indicated would have meant

that the September 1 lineup video was “not available.” On

November 22, the court heard defense counsel’s motion to reconsider.

It later reaffirmed its ruling denying in‐camera review

of the police reports.

Also on November 22, a month after the court had ordered

the production of all relevant videotape evidence, Cummings

(or someone using Cummings’s old badge number and signature)

signed the videotape back into the police property room

at 3:36 p.m. Cummings has offered no explanation for why he

kept the video for so long nor for why he would have signed

the video back into the police property room, given his

acknowledgement that it would have been improper for him

to do so once he was no longer an officer on the force.

Goudy argues that the best explanation for this series of

events is that Cummings intentionally concealed the video

from trial prosecutors and prevented them from disclosing it

to the defense. The district court found that there was “no evidence

to support this theory.” It pointed out that Cummings

signed the video out under his own name—making clear that

anyone who was looking for it should seek him out—and that

there was “no evidence in the record that the trial prosecutors

made any attempt to obtain the videotape” during the relevant

period.

10 No. 17‐3665

The district court’s evaluation of the evidence, however,

fails to take the facts in the light most favorable to Goudy.

From that perspective, we see considerable evidence in the

record that would permit a trier of fact to conclude that Cummings’s

concealment was intentional: the unexplained retention

of the video for 14 months; the return of the video on the

very same date that the judge definitively blocked defense

counsel from seeing the police reports describing it; and the

trial prosecutor’s “still N/A” note. This raises a reasonable inference

that the trial prosecutors tried and failed to recover

the video, regardless of the clues Cummings may have left behind.

A jury could thus find that Cummings’s concealment

was the cause of the prosecutors’ failure to find and disclose

the video.

Cummings’s arguments to the contrary are unpersuasive.

He contends that because defense counsel could have acquired

the videotape through “reasonable diligence,” the videotape

was not “suppressed” for Brady purposes. But what

was defense counsel to do? He evidently suspected that videotapes

of some lineups existed, because he mentioned them

while arguing his October 22, 1995, discovery motion. But he

did not sit on this information: he asked that the videos be

produced, and he received nothing.

Even if Goudy’s lawyer had located the probable cause affidavit

filed to support Harvell’s earlier arrest for the murder

and attempted murder in September of 1994, he would have

been stymied. The affidavit indicates only that Harvell was

identified in both photo and physical lineups by multiple witnesses.

But the affidavit is not a stand‐in for the video. Cummings

is incorrect to say that the affidavit “specifically refers

to a video‐recorded lineup” (emphasis added). Nor does the

No. 17‐3665 11

affidavit furnish the specific exculpatory and impeachment

material—such as the identities of the witnesses that identified

Harvell in conflict with their trial testimony, or Nunn’s

identification of a non‐suspect—found in the video. Cummings

also suggests that defense counsel could have gone

back to the police property room himself or asked the court to

grant him access, thereby allowing him to discover the video

receipt with Cummings’s signature. But such a step would

make sense only if counsel should have assumed that the state

was dissembling when it did not produce any videotapes.

While we have rejected a Brady claim where counsel knew

of evidence and failed to subpoena a witness for it, United

States v. Lockhart, 956 F.3d 1418, 1426 (7th Cir. 1992), Cummings

points to no case in which we have required defense

counsel to take extra steps to insure against police concealment

or bad faith representations after seeking production of

the relevant evidence. In the absence of an open‐file law or

practice (which counsel for Cummings and Napier confirmed

at oral argument did not exist in Madison County at the time),

Goudy’s defense counsel had every right to rely on the representations

the trial prosecutors made that they had turned

over all relevant video evidence in accordance with the

judge’s October 22 ruling.

At trial, Goudy will need to show, by a preponderance of

the evidence, that Cummings is the person responsible for the

state’s suppression of the evidence. A jury might find that the

prosecution’s failure to disclose the video originated with

someone other than Cummings—perhaps trial prosecutors

Maras‐Roberts or Puckett. They knew of the video’s existence

and allowed the trial to proceed without its being disclosed to

the defense. But a jury would also be entitled to infer that the

12 No. 17‐3665

“still N/A” note indicated that Cummings had somehow prevented

Maras‐Roberts from acquiring the video despite her

best efforts. The facts are far from undisputed on this point.

Finally, Cummings argues that even if we found that the

videotape was withheld, he is entitled to prosecutorial immunity.

The district court did not base its ruling on prosecutorial

immunity, and with good reason: Cummings’s actions

(removing the video and hanging onto it for 14 months) had

nothing to do with his prosecutorial responsibilities. He removed

and retained the video in his capacity as a police detective.

Any entitlement to immunity that Cummings enjoys

for actions taken in his prosecutorial capacity after April 7,

1995, is beside the point.

B

We next turn to the question whether Cummings and Napier

suppressed the interview notes indicating that Harvell

had initially denied being at the scene of the crime and then

provided a false alibi. All agree that the prosecution failed to

turn these notes over to Goudy’s defense counsel. But the district

court ruled that even if someone had suppressed this evidence,

Cummings and Napier could not personally be held

liable for doing so, because of a deposition in which trial prosecutor

Puckett says that he is “certain as can be” that he knew

before trial that Harvell had initially denied any involvement.

We do not agree that Puckett’s testimony takes Cummings

and Napier off the hook for suppressing the Harvell interview

notes. Puckett’s testimony is equivocal about where or how

he supposedly learned that Harvell had initially denied being

present at the scene. Puckett indicated that he has “no present

recollection of seeing those notes,” and that he merely

No. 17‐3665 13

assumed that he got the information about Harvell’s previous

denials from the officers. (He explained that he did not recall

speaking with Harvell personally before the time when he believes

he learned of Harvell’s early denials.)

Even if Cummings and Napier did communicate the information

that Harvell had initially denied being present at the

scene, that is quite different from disclosing the notes themselves.

Contemporaneous documentary evidence of Harvell’s

denials—which took place during an hour‐long interview—

would prove much more useful as impeachment evidence

than any secondhand oral recollection of a statement Harvell

had made more than a year earlier.

This makes Goudy’s case unlike Beaman v. Freesmeyer, 776

F.3d 500 (7th Cir. 2015), on which the district court relied. In

Beaman, police officers discharged their Brady obligations by

turning over to the prosecutors documentary evidence pointing

to an alternative suspect. Id. at 512. Here, there is at most

a single deposition indicating that a single prosecutor believes

he learned—from someone, probably the defendants—that

Harvell had initially denied involvement.

Nothing in this record indicates that the actual interview

notes were ever provided to the trial prosecutors. The record

does, however, contain enough to permit a jury to find that (a)

the trial prosecutors did not have the notes, and (b) Napier

and Cummings knowingly brought about that omission. The

investigators conducted the interview together, and Napier

took the notes by hand. Napier admitted that, contrary to his

usual practice, he did not convert this interview into a police

report, which would have found its way to the trial prosecutors’

file. While Puckett has a vague recollection that he knew

of Harvell’s early denials, Maras‐Roberts disclaims having

14 No. 17‐3665

had any knowledge of the notes or their contents. And both

Puckett and Maras‐Roberts concede that under Brady, they

would have had to tender the notes to the defense had they

been in possession of them. In the light most favorable to

Goudy, these facts would entitle a trier of fact to conclude that

Cummings and Napier were responsible for the fact that the

trial prosecutors never got the notes, and thus neither did the

defense.

The district court based its conclusion that there was no

suppression of information, as required by Brady, on its assumption

that the prosecution was aware of the information

found in the notes. It also suggested (but did not explicitly

rule) in the alternative that “it appears likely that Mr. Goudy’s

criminal defense attorney could have discovered [the notes]

through reasonable diligence.” In support of this comment,

the court pointed to evidence of a follow‐up conversation between

Cummings and Harvell in September 1994. At that

time, Cummings referred to the earlier interview and said to

Harvell, “[w]e [the defendants and Harvell] had some conversation.

You elected at that time not to talk to us; is that correct?”

Goudy’s defense counsel was aware of this conversation.

The question for us is whether the possible existence of a

more detailed statement from Harvell was so obvious from

Cummings’s 1994 follow‐up interview that the investigators

should be relieved of liability for not disclosing it. Again bearing

in mind the fact that we are reviewing a summary judgment

record, we think not. Even if it was not purposefully

misleading, Cummings’s reference to the earlier interview

was cryptic enough that a diligent defense representative

might have determined there was nothing to see in the notes

No. 17‐3665 15

of that initial interview, or that notes of that previous interview

may not exist. Goudy’s counsel cannot be criticized for

failing to guess that Harvell’s initial statement was more substantive

than Cummings let on. Cummings’s follow‐up interview

with Harvell thus does nothing to change our conclusion

on this issue: a reasonable jury could decide that Napier’s

notes from the initial interview were suppressed.

C

Having established that a trier of fact could find that Cummings

suppressed the lineup videotape and both investigators

suppressed the interview notes, we now turn to the question

of materiality. To show that the suppressed evidence was

material to the outcome of his trial, Goudy must demonstrate

that there is a “reasonable probability” that the result would

have been different had the suppressed evidence been put before

the jury. Kyles, 514 U.S. at 422. As we emphasized in

Goudy I, the “reasonable probability standard for materiality

… is less rigorous than a preponderance of the evidence

standard.” 604 F.3d at 399 (citing Kyles, 514 U.S. at 434).

Goudy must show only that “the cumulative effect of all the

suppressed information is to undermine confidence in the

verdict.” Id. at 399. (No one has argued that this standard is

different in a case under section 1983, such as this one, from

the standard that applies in habeas corpus actions. We therefore

do not explore that possibility.) We assess this cumulative

effect “in the context of the entire record,” Beaman, 776 F.3d at

507 (quoting United States v. Agurs, 427 U.S. 97, 112 (1976)).

A rational trier of fact could find that Goudy has put

enough in the record to prevail. First, even if the videotape

were the only piece of suppressed evidence, the jury could

find it material against the backdrop of the lack of definitive

16 No. 17‐3665

physical evidence, the state’s reliance on eyewitness testimony,

the inconsistencies among the testifying witnesses at

trial, and the utility of the video as both evidence of an exculpatory

theory and impeachment.

As we explained in Goudy I, the identifications made at

trial were hardly ironclad. “The jury heard five witnesses say

they saw Goudy firing a gun into McCloud’s car, but four of

them did not agree on Goudy’s height, which side of the car

he was on, whether he wore a hat and whether he wore a dark

jacket and jeans or a full brown work uniform.” Goudy I, 604

F.3d at 400. The video would have shown three of these witnesses

identifying Harvell as one of the shooters at a time

when the defense was in possession of Romeo Lee’s confession,

which identified himself and Harvell as the two shooters.

The video could therefore play a key role in advancing an

exculpatory theory of the case. (Evidence in the record that

Goudy and his lookalike brother Lee were routinely confused

for each other would have bolstered this theory.) The video

could also prove useful in impeaching both Harvell and

Nunn, who appeared in the video identifying a non‐suspect.

While our cumulative materiality analysis in Goudy I included

other pieces of suppressed evidence not at issue here—such

as a report of a photo lineup in which a fourth witness identified

Harvell—those additional pieces of evidence would not

be necessary for a jury to find materiality in this case. The videotape

alone is enough.

But Goudy has more: the Harvell interview notes. The interview

notes would have driven one more spike in a weakened

case. They would have depicted the state’s star witness,

Harvell, as both a suspect in serious jeopardy and a person

No. 17‐3665 17

whose story (contrary to the prosecution’s closing argument)

had changed significantly.

It is true that Napier, unlike Cummings, was at most responsible

for the suppression of the notes. The question of

materiality may thus turn out to be different for Napier than

it is for Cummings. But given the obvious value of the notes

as potential impeachment evidence, it is for a jury to decide

whether the material Napier was personally responsible for

suppressing is sufficient to undermine confidence in the verdict.

For this reason, it would be premature to rule in his favor

at this stage. Furthermore, as we explained above, Goudy

brings a single claim based on one overarching constitutional

harm: that he was deprived of a fair trial in violation of his

due process rights. He alleges that both Cummings and Napier

contributed to that constitutional injury, albeit in different

ways. Section 1983 liability must be understood against

the background of the ordinary principles of tort law, where

joint and several liability is the norm. Whitlock v. Brueggemann,

682 F.3d 567, 582 (7th Cir. 2012); see also Watts v. Laurent, 774

F.2d 168, 179 (7th Cir. 1985) (imposing joint and several liability

in a section 1983 case and noting that “[f]ederal common

law principles of tort and damages govern recovery under

section 1983”). We see no reason to deviate from that norm

here.

The Supreme Court has instructed us to look at the impact

of withheld evidence in the aggregate, rather than seriatim.

Kyles, 514 U.S. at 440. For this reason, we consider it appropriate

that all defendants who can be shown to have “suppressed”

evidence in violation of Brady—that is, “all of the defendants

[who] have committed the … illegal act,” Fillmore,

18 No. 17‐3665

358 F.3d at 507—should be liable for the aggregate impact on

the outcome of the trial Goudy ultimately received.

III

The investigators finally argue that even if Goudy’s allegations

(taken in the light most favorable to him) satisfy all

the elements of a Brady violation, qualified immunity protects

them here. In order to fend off this defense, a plaintiff must

show that “a constitutional right would have been violated on

the facts alleged,” and that “the right at issue was clearly established

at the relevant time.” Plumhoff v. Rickard, 572 U.S.

765, 774 (2014). These inquiries—particularly the first one—

must be undertaken at the proper level of specificity. Anderson

v. Creighton, 483 U.S. 635, 649 (1987).

Goudy’s allegations (if proven) describe a constitutional

violation: the infringement of the due‐process right to obtain

exculpatory evidence, in this case through the investigators’

concealment of that evidence from the trial prosecutors.

Moreover, at the time of these events, this right was clearly

established. We see no need to repeat the underlying facts

with respect to the video here. We add only that the fortuity

that Cummings changed job titles over the period of his retention

of the video does not have any effect on our analysis. At

the time he allegedly acted to suppress evidence, he was still

a police officer, and he was not acting in a prosecutorial capacity

when he checked the video back into the evidence

room. It was already clearly established as early as 1981 that

police could not withhold exculpatory information from prosecutors.

See Jones v. City of Chicago, 856 F.2d 985 (7th Cir. 1988)

(affirming award of damages against officers who withheld

exculpatory information in 1981). Nothing had changed as of

No. 17‐3665 19

1994 and 1995, when these defendants were involved in

Goudy’s case.

The same conclusion applies to the Harvell interview

notes. Cummings and Napier urge us to frame the qualified

immunity issue regarding the notes as follows: “whether it

was clearly established in 1994 that an initial denial of involvement

by a suspect, when that suspect later admits involvement

in the crime, is material impeachment evidence

such that a police officer can be held monetarily liable for not

providing it.”

Even on this narrow view of the issue, materiality is easy

to see: flip‐flops in accounts about the central events in a case

provide rich impeachment evidence, and potentially evidence

on the merits. In addition, there are problems with the state’s

version. It cannot be the case that the qualified‐immunity inquiry

is so specific that materiality depends on the outcome

of a trial. If we were to adopt such an approach, we would

shield officers from liability for withholding impeachment evidence

whenever materiality was a close call (for example, if

the police officer felt the overall case was strong enough).

Such a shield would be incompatible with the rule announced

and elaborated in the Brady line of cases.

Even if we were to formulate the inquiry as the investigators

suggest, we would need to add something along the lines

of: “when that suspect is the state’s star witness, the other

identifying testimony contains serious internal inconsistencies,

and there is a dearth of physical evidence tying the accused

to the crime.” The state’s case here was far from a slam

dunk. A finding of liability does not require a case such as Boss

v. Pierce, 263 F.3d 734 (7th Cir. 2001), in which the subject of

the suppressed impeachment evidence was the only witness

20 No. 17‐3665

tying the accused to the crime. Id at 736. It should have been

obvious to Napier and Cummings that evidence impeaching

the story told by the state’s main cooperating witness, in a

case with no physical evidence and inconsistent witness identifications,

needed to be disclosed. (Notably, trial prosecutors

Puckett and Maras‐Roberts acknowledged that they would

have had to disclose the notes had they possessed them.)

Of course, it is still up to the jury to decide whether Napier

and Cummings suppressed these pieces of evidence. But if

they did, they cannot use qualified immunity to avoid liability.

IV

Goudy has presented enough to go to trial on his allegations

that Cummings and Napier violated his due process

right to a fair trial. We need not and do not address his allegation

that the allegedly improper one‐man “showup” procedure

independently constituted a basis for liability. On remand,

the district court is free to consider this issue afresh;

evidence of the showup procedure may prove to be relevant

at trial as Goudy seeks to hold the defendants liable for his

constitutional injury.

We REVERSE the district court’s grant of summary judgment

and REMAND the case for further proceedings consistent

with this opinion.