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Date: 05-01-2019

Case Style:

Walter Goudy v. Rodney J. Cummings

Case Number: 17-3665

Judge: Wood

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Southern District of Indiana (Marion County)

Plaintiff's Attorney: Uma Bansal, Richard Dvorak, Blake Wolfe Horwitz, Jeffrey Segall,

Defendant's Attorney: Betsey M. DeNardi, Bryan Findley, Gregory P. Gadson, Amy Stewart Johnson, Rebecca L. Loeffler, Anthony W. Overholt, Cory Chirstian Voight, Alexander Phillip Will


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).
Goudy contends in this case that the state and local officials
2 No. 17‐3665
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
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
No. 17‐3665 3
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
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
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.
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
8 No. 17‐3665
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
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.
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
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.
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
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.
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.
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.

Outcome: We REVERSE the district court’s grant of summary judgment
and REMAND the case for further proceedings consistent
with this opinion.

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