Nathson Fields v. City of Chicago

Chicago, IL - Criminal defense lawyer represented Plaintiff-Appellee with asserting claims under 42 U.S.C. § 1983 and state law against the City of Chicago and individuals including several Chicago police officers as well as two former Cook County prosecutors. He claims they fabricated evidence and withholding exculpatory evidence in a criminal investigation that resulted in Fields's conviction for murder

The § 1983 and state law claims in this case relate to the

investigation and prosecution of Fields for the murders of Talman Hickman and Jerome Smith in 1984. Following a bench

trial before Cook County Circuit Judge Thomas Maloney,

Fields and his co-defendant Earl Hawkins were convicted of

the murders. During the penalty phase, the prosecutors introduced evidence that Fields and Hawkins had also murdered

Dee Eggers Vaughn and Joe White.1 Fields and Hawkins were

sentenced to death for the murders of Hickman and Smith,

and the conviction and sentence were affirmed on appeal in

1990. Twelve years after the trial, in 1998, those convictions

were overturned on post-conviction review based on evidence that Hawkins's attorney had bribed Judge Maloney to

secure an acquittal and that Judge Maloney during the trial

became concerned that he was being investigated by law enforcement and returned the bribe; that corruption undermined confidence in the outcome. Hawkins, who began to cooperate with federal law enforcement in 1987 following the

1 Hawkins and Anthony Sumner—who first implicated Fields in both

the Smith and Hickman murders and the Vaughn and White murders—

later confessed to the Vaughn and White murders.

Nos. 17-3079, 17-3125 & 18-1207 3

conviction, provided the evidence of the bribe. He also made

a deal to testify for the prosecution in a retrial of Fields for the

Hickman and Smith murders, in return for avoidance of the

death penalty or life in prison without release. Under the plea

agreement, Hawkins pled guilty to two counts of armed violence and received a sentence recommendation of 42 years on

each count to be served consecutively. The plea agreement

also stated that "[i]t is the intent of both parties that defendant

Hawkins remain in custody until he reaches 72 years of age,”

which would be in 2027. R. 770-2 at 8.

In the criminal retrial of Fields for the Smith and Hickman

murders, the prosecutors presented a different factual scenario than in the first, relying on Hawkins's testimony.

Whereas Hawkins had been identified as a shooter in the first

trial, he was portrayed as the getaway driver in the second

trial and Fields and another individual were characterized as

the shooters. Fields was acquitted in that retrial in 2009. He

then sought a certificate of innocence, which was ultimately

denied, and at the same time pursued this lawsuit.

The lawsuit alleged that Chicago Police Detectives David

O'Callaghan and Joseph Murphy violated his constitutional

rights in connection with his criminal trials by fabricating evidence, engaging in suggestive identification procedures, and

withholding exculpatory evidence. Fields alleged that the

withholding of evidence was done in accordance with a policy of the City of Chicago to withhold "street” files which

were compiled by detectives and contained such exculpatory

evidence. See Jones v. City of Chicago, 856 F.2d 985, 995 (7th Cir.

1988) (noting that "street files” are police files withheld from

4 Nos. 17-3079, 17-3125 & 18-1207

the stateʹs attorney and defense counsel and therefore unavailable as a source of exculpatory information for a prosecutor deciding whether to charge or a defense attorney).

Fields also included state law claims of malicious prosecution, intentional infliction of emotional distress, and civil conspiracy. The case proceeded to trial in March 2014, but after

seven days of trial, the court declared a mistrial when the defendants introduced prejudicial testimony that the court had

excluded in a pretrial in limine ruling. The second trial commenced in April 2014, and at the close of the month-long trial

the jury found in favor of Fields on his due process claim

against defendant O'Callaghan, and in favor of the defendants on the remaining claims. The jury awarded Fields $80,000

on his due process claim against O'Callaghan. All parties filed

post-trial motions. O'Callaghan sought entry of judgment as

a matter of law on the due process claim, and Fields sought

an entry of judgment on his claim against the City, both of

which the district court denied. Fields also sought a new trial

as to the claims that were not decided in his favor as to the

individual defendants, a new trial as to damages regarding

the due process claim against O'Callaghan upon which he

prevailed, and a new trial on his Monell claim against the City.

See Monell v. Dept. of Social Services, 436 U.S. 658 (1978). The

district court granted Fields's motion for a new trial as to the

claims found in favor of the individual defendants and the

City, and for a new trial as to damages with respect to the

O'Callaghan claim. O'Callaghan subsequently sought a new

trial as to liability, arguing that the damages issue could not

be separated from that of liability, and the court granted that

motion. After another month-long trial, the jury found in favor of Fields against O'Callaghan and Murphy on one of his

§ 1983 claims, against the City on Fields's Monell liability

Nos. 17-3079, 17-3125 & 18-1207 5

claim under §1983, and against O'Callaghan on a state-law

claim for intentional infliction of emotional distress, and

found for the defendants on the remaining § 1983 and state

law claims. The jury awarded Fields $22 million in compensatory damages, and punitive damages of $30,000 against

O'Callaghan and $10,000 against Murphy. O'Callaghan and

Murphy (hereinafter the "individual defendants”) and the

City now appeal that jury determination.

We will not recap the evidence presented below in its entirety because such a comprehensive overview is unnecessary

to the resolution of the issues before us and, with challenges

before us to decisions made in two separate month-long trials,

any such effort to do so for both trials would prove both voluminous and confusing. Instead, we present the relevant evidence in the discussion of each issue raised on appeal. For

context, the district court summarized the evidence as follows:

Fields contended, and the evidence supported, that

OʹCallaghan and Murphy falsified incriminating evidence and concealed favorable evidence, and that he

was deprived of his liberty as a result. This includes

evidence from which the jury reasonably could infer,

among other things, that Murphy pulled a group of

suspects, including Fields, more or less out of the air

and turned them over to OʹCallaghan; OʹCallaghan in

turn fabricated identifications by witnesses who had

no real opportunity to see the perpetrators; Murphy

caused the fabrication of a purported admission by

Fields to Anthony Sumner; OʹCallaghan had responsibility—perhaps along with others—to review a police

investigative "street file” and provide it to Cook

6 Nos. 17-3079, 17-3125 & 18-1207

County prosecutors; Murphy, too, had information

placed in the street file (a request for photographs used

to purportedly identify the perpetrators); and the

street file, which was never turned over, contained information that a reasonably competent defense attorney could have used to show the existence of reasonable doubt.

Corrected Memorandum Opinion and Order 9-11-2017 ("Corrected Op.”) at 3-4.

II. CHALLENGES BY INDIVIDUAL DEFENDANTS

O'CALLAGHAN AND MURPHY

O'Callaghan and Murphy raise a number of challenges to

the court's evidentiary decisions in the last (third) trial, arguing that those errors individually and cumulatively warrant

yet another new trial. We review a trial court's evidentiary decisions only for abuse of discretion. Lewis v. City of Chicago Police Dept., 590 F.3d 427, 440 (7th Cir. 2009); Hammel v. Eau Galle

Cheese Factory, 407 F.3d 852, 868 (7th Cir. 2005). "A determination made by a trial judge regarding the admissibility of evidence is treated with great deference because of the trial

judge's first-hand exposure to the witnesses and the evidence

as a whole, and because of his familiarity with the case and

ability to gauge the likely impact of the evidence in the context of the entire proceeding.” Doornbos v. City of Chicago, 868

F.3d 572, 579 (7th Cir. 2017) (internal quotation marks omitted), quoting United States v. Wash, 231 F.3d 366, 371 (7th Cir.

2000). A new trial based on such errors will be granted only if

the evidentiary errors had "a substantial and injurious effect

or influence on the determination of a jury and the result is

Nos. 17-3079, 17-3125 & 18-1207 7

inconsistent with substantial justice.” Lewis, 590 F.3d at 440;

Doornbos, 868 F.3d at 579.

The first evidentiary challenges address evidence that the

defendants sought to introduce to rebut Fields's character evidence. According to the defendants, Fields was a high-ranking member of the El Rukn gang who nevertheless sought to

portray himself as a peaceful building manager for an El Rukn

property uninvolved in the El Rukn's criminal activities. They

sought to rebut that perception with evidence that Fields had

been convicted of murdering a rival gang member years earlier, that he was involved with El Rukn criminal activities

prior to his arrest in 1985, and that he participated in the

scheme to bribe Judge Maloney. The defendants assert that

the trial judge abused his discretion in precluding such evidence.

A. FBI wiretaps

The defendants first challenge the court's exclusion of FBI

wiretaps regarding the scheme to bribe Judge Maloney. They

sought to introduce a recording of Jeff Fort, the leader of the

El Rukn gang, in a discussion conducted using coded words,

asking whether Fields had been informed about the bribe of

Judge Maloney, and being told by Alan Knox that Hawkins

said that he had informed Fields about the bribe. The trial

judge engaged in an extensive analysis of the admissibility of

the wiretap evidence, determining that the recording was inadmissible hearsay. That determination is not erroneous. The

defendants sought to use the recording to demonstrate

Fields's connection to the bribe and the El Rukns. The state-

8 Nos. 17-3079, 17-3125 & 18-1207

ments as to whether Fields was made aware of the bribe involved multiple levels of hearsay, in that it involved Knox's

statement to Fort as to what Hawkins told Knox that Hawkins

had said to Fields. The statements were used for their truth to

connect Fields with the bribe by showing his knowledge of it.

The defendants dispute that, arguing that the recordings related to orders from Fort and the orders were not being offered to prove the existence of the bribe. But the recordings

were being used to prove that Fields had knowledge of the

bribe and therefore was involved in bribing the judge, by

showing that the El Rukns informed him of the bribe prior to

the trial, and that uses the statements for their truth. In fact,

in arguing that the residual hearsay exception applies, the defendants argue that Fields put his knowledge of the bribe

squarely at issue and that they therefore should be allowed to

rebut it. That argument acknowledges that the evidence was

intended to demonstrate Fields's knowledge of the bribe. The

district court properly determined that the use of the wiretap

recordings for that purpose rendered it inadmissible hearsay

that should be excluded.

Nor can the defendants succeed on their claim that an exception to the hearsay prohibition applies here. They assert

that the wiretaps were admissible under the residual hearsay

exception in Federal Rules of Evidence 807, which permits admission of hearsay if it is supported by sufficient guarantees

of trustworthiness considering the totality of the circumstances and any corroboration, and it is more probative as to

the point for which it is offered than could otherwise be attained by reasonable effort. The defendants argue that the

wiretaps were "particularly trustworthy because the El Rukns

were not aware they were being recorded and spoke in code.”

Indiv. Defs. Brief at 23. The speaking in code, however, signals

Nos. 17-3079, 17-3125 & 18-1207 9

the opposite conclusion; it indicates an awareness that the

communications could be intercepted. There is nothing in the

nature of that communication that renders it "particularly

trustworthy.” See Cody v. Harris, 409 F.3d 853, 860–61 (7th Cir.

2005). Moreover, the recording is also not the most probative

evidence demonstrating that Fields was informed about the

bribe before the trial. The recordings relate Knox's statement

that Hawkins told Knox that he told Fields of the bribe. But

that fact was related to the jury directly by Hawkins. The district court allowed Hawkins to testify directly that he told

Fields about the bribe, thus presenting the jury with that information in admissible form. See Flournoy v. City of Chicago,

829 F.3d 869, 876 (7th Cir. 2016) (notation on a police report

not the most probative evidence under Rule 807 where others

testified to the matter). The district court properly held that

the wiretaps should not be admitted under the residual exception.

The district court also properly rejected the argument that

the wiretaps were admissible as a co-conspirator statement

under Federal Rules of Evidence 801(d)(2)(E). The court did

not clearly err in determining that the defendants had not

demonstrated that Fields was a co-conspirator in the scheme

to bribe Judge Maloney. As the defendants acknowledge, that

decision by the district court judge was based on the court's

conclusion that Hawkins lacked credibility, and there is no

reason to disturb that finding on appeal. The defendants have

raised no meritorious claim that the district court erred in excluding the wiretap evidence.

10 Nos. 17-3079, 17-3125 & 18-1207

B. Possession of TEC-9

The defendants next object to the district court's exclusion

of other evidence regarding Fields's character. According to

the defendants, Fields presented himself to the jury as a

"small fish” who was a building manager and not a hit man

for the El Rukns. To rebut that characterization, the defendants argue that they should have been allowed to produce evidence that Fields was arrested in possession of a submachine

gun while accompanying a group of fellow El Rukns who

were stalking a rival gang member, Treddest Murray. They

contend that Fields and other El Rukns planned to kill Murray

and went looking for him, finding his car outside a bar, and

that Fields was arrested and a TEC-9 submachine gun was

found in the car in which Fields was riding. "The well-established, general rule is that a witnessʹs credibility may not be

impeached by evidence of his or her prior arrests, accusations,

or charges.” Barber v. City of Chicago, 725 F.3d 702, 709 (7th Cir.

2013); see also Michelson v. United States, 335 U.S. 469, 482

(1948) (dicta) ("Arrest without more does not, in law any more

than in reason, impeach the integrity or impair the credibility

of a witness. It happens to the innocent as well as the guilty.

Only a conviction, therefore, may be inquired about to undermine the trustworthiness of the witness.”) The district court

held that the charge against Fields was dismissed and that evidence of an arrest is generally not admissible for impeachment purposes, and that decision is well-founded. The defendants offer no argument on appeal addressing that holding by the court or distinguishing that caselaw.

Moreover, the district court noted that contrary to the defendants' assertion, the evidence at trial did not portray Fields

Nos. 17-3079, 17-3125 & 18-1207 11

as a law-abiding person of peaceful character. The court emphasized that evidence was admitted that Fields:

- joined the El Rukn street gang;

- committed a serious crime for which he served 12

years in prison;

- concocted a false alibi and suborned others to assist

in an unsuccessful attempt to avoid conviction for

that crime;

- was involved in violent incidents in prison;

- became an officer in the street gang;

- resumed activities in the gang after getting out of

prison; and

- voluntarily associated with killers and drug dealers

in the El Rukn gang.

Defendants also introduced a significant amount of evidence regarding the illegal and violent activities of the

El Rukn gang. ... This evidence tainted Fields given his

membership and rank in the gang.

12 Nos. 17-3079, 17-3125 & 18-1207

Corrected Op. at 12-13. The district court, therefore, allowed

the introduction of evidence as to Fields's character. The court

did not err in refusing to allow evidence of an arrest, for possession of a weapon found in a car in which he was a passenger, in which the charge was later dismissed.

C. Hunter and Clay

The defendants also challenge the district court's exclusion of the testimony of Eugene Hunter and Jackie Clay,

through which they sought to portray Fields's role as an El

Rukn killer. They argue that the district court erred in excluding the testimony for want of "foundation,” arguing that no

rule of evidence requires a foundation. But the district court's

reasoning in excluding that testimony was well-grounded.

Clay was allowed to testify that his duties in managing an El

Rukn building included armed security and narcotics trafficking. The court allowed Clay to testify as to Clay's own building management responsibilities, but did not permit Clay to

testify that those were the responsibilities of Fields as a building manager, because Clay acknowledged that he lacked personal knowledge of Fields's responsibilities. There is no error

in limiting a witness's testimony to testimony within his personal knowledge. See Fed. R. Evid. 602 ("A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the

matter.”); United States v. Fenzl, 670 F.3d 778, 782 (7th Cir.

2012) ("a lay witness is permitted to base his testimony on

his personal knowledge (and on nothing else)”); Palucki v.

Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir. 1989). Because Clay was allowed to testify as to his own responsibilities as building manager, the defendants were free to argue

Nos. 17-3079, 17-3125 & 18-1207 13

that by inference a jury should find that Fields had similar responsibilities. But there is no error in refusing to allow Clay

to opine on a matter beyond his own personal knowledge.

Similarly, Hunter admitted lacking personal knowledge that

Fields was an "assigned killer,” and that testimony was therefore properly excluded as well.

D. Prisoner visitor list

The defendants next complain that the district court excluded the admission of Fields's prisoner visitor list that contained the names of persons authorized to visit him in prison

and included a number of El Rukn names. The list was offered

to demonstrate that Fields had a relationship with those El

Rukns and to rebut Fields's claim that he did not associate

with them. The court held, however, that the defendants had

not presented competent evidence that Fields added those

persons to the list. The names of Fields's family on the visitor

list were written in Fields's handwriting, but the names of the

El Rukns were in a different handwriting. And although the

defendants planned to call some of the El Rukns on that visitor list as witnesses, counsel for the defendants informed the

court that none of those witnesses were going to testify that

they actually visited Fields. The defendants respond that they

informed the court that Fields admitted that he approved the

names on the list, and that admission is all that was necessary.

But the cite for that proposition is just to the hearing on the

motions in limine, and consists of a one-line statement by

counsel for the defendants stating that Fields admitted he authorized the name; defense counsel did not identify the source

for that admission, and has provided no cite in the brief before

this court to such an admission anywhere else in the record.

14 Nos. 17-3079, 17-3125 & 18-1207

Therefore, the court's holding that the defendants did not establish any foundation for that assertion is unchallenged. The

district court did not abuse its discretion in holding that the

visitor list was inadmissible.

E. Stateville incident report

In addition, the defendants complain that the district court

excluded a Stateville Incident Report and the testimony of

Warden DeRobertis that two El Rukns, Derrick Kees and

Hank Andrews, attempted to visit Fields in prison. As is true

of a number of arguments in the briefs on appeal, their argument is replete with shorthand references to the record, such

that the court has to go to that record in order to comprehend

the basis of the argument. That is insufficient to preserve the

argument to this court. Puffer v. Allstate Ins. Co., 675 F.3d 709,

718 (7th Cir. 2012) ("even arguments that have been raised

may still be waived on appeal if they are underdeveloped,

conclusory, or unsupported by law”); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991) ("[a] skeletal 'argument,'

really nothing more than an assertion, does not preserve a

claim.”). For instance, after baldly stating that the court erred

in excluding evidence of those attempts to visit Fields in

prison, the defendants declare that

[w]hile the court thought the corresponding Incident

Report was hearsay, records of prison visits are admissible as business records under Rule 803(6) ... [citations

omitted] and as public records under Rule 803(8). DeRobertis' proffered testimony regarding this visit provided the factual background necessary under those

rules.

Nos. 17-3079, 17-3125 & 18-1207 15

Indiv. Defs. Brief at 29. That is the entire development of the

argument that the exclusion of the Incident Report–a prison

record of visit attempts—is being challenged, that the district

court excluded it based on hearsay, and that the testimony by

DeRobertis was sufficient to demonstrate that a hearsay exception applied. It is insufficient to preserve the issue on appeal. Missing is an explanation of the court's holding, the requirements of the business records and public records exceptions, and an explanation as to what testimony by DeRobertis

meets the requirements of those exceptions. This is a problem

that recurs in the briefing in this appeal, and we could well

have held that some of those other arguments were insufficiently developed as well, but have erred on the side of considering them. The cursory treatment is even more problematic here because the district court held that the incident report involved multiple levels of hearsay in that it involved a

recording of what other persons told him, and that the business record exception would only get the defendants past the

first level of hearsay. The defendants do not address that issue

at all. Therefore, the argument as set forth in this brief is insufficient to challenge the court's holding that the evidence of

a visit was premised on inadmissible multi-level hearsay.

F. 1972 murder conviction

Finally, the defendants argued that the court erred in excluding evidence that Fields was convicted of murder in 1972.

The defendants claim that the court abused its discretion in

excluding the 1972 murder conviction and that it was relevant

16 Nos. 17-3079, 17-3125 & 18-1207

to damages because it was a factor the jury considered in imposing the death penalty. According to the defendants, the

court erred in excluding it on the ground that the conviction

was immaterial regarding damages because Fields's convictions for the Smith and Hickman murders alone rendered him

death-eligible. The defendants argue that the court's determination rests on a legal error – a misunderstanding of Illinois

death-penalty law – because even if Fields was eligible for the

death penalty based on the Smith and Hickman murders

alone, his 1972 conviction would nevertheless be considered

by the jury as well as any other factors in aggravation and mitigation.

This argument is meritless. The district court did not misunderstand Illinois death penalty law. In fact, the court's explanation of the relevance of the 1972 conviction to the death

penalty directly matches the defendants' explanation of that

law. The court noted that Fields became eligible for the death

penalty based on his conviction for the Smith and Hickman

murders, and that the 1972 conviction was part of the aggravating evidence offered. The court rejected the argument that

every factor in aggravation and mitigation that could contribute to the ultimate decision to impose the death penalty is relevant to damages for the misconduct related to his

Smith/Hickman conviction. The court held that the 1972 conviction was not necessary to make Fields eligible for the death

penalty, and that the precise reason why Fields received the

death penalty after his conviction for the Smith/Hickman

murders was immaterial to the damages calculation. Instead,

the court held that the only material evidence is that which

rendered him death eligible. Because the Smith/Hickman conviction alone rendered him death eligible, the damages resulting from the imposition of the death penalty were necessarily

Nos. 17-3079, 17-3125 & 18-1207 17

related to that conviction. The defendants have failed to support their argument that all evidence introduced at the sentencing phase is relevant to the due process claim or to the

damages for the due process violation. The district court

properly limited the materiality determination to reflect that

which subjected him to the death penalty, as opposed to inviting the reweighing of all aggravation and mitigation factors which would invite conjecture as to how the jury made

that determination.

Moreover, the defendants' argument does not address the

ultimate basis for the court's decision. The 1972 conviction

was a conviction for murder based on an accountability theory. The court allowed the defendants to introduce that Fields

was convicted of a crime, that Fields presented a false alibi

defense at the 1972 trial and induced others to do so, and that

he was imprisoned for 12 years for that offense. The only information excluded by the court was the nature of the conviction and the underlying information. The court held that

given the age of the conviction, the potential for unfair prejudice – specifically the use of the murder conviction as inappropriate propensity evidence – outweighed any minimal

probative value. That determination is entitled to deference

and was not an abuse of discretion. Sprint/United Mgmt. Co. v.

Mendelsohn, 552 U.S. 379, 384 (2008) (noting that a district

court is afforded wide discretion in evidentiary matters, particularly with respect to Rule 403 which can require "on-thespot” balancing of prejudice and probative value for otherwise-relevant evidence).

18 Nos. 17-3079, 17-3125 & 18-1207

G. Vaughn/White investigation

In addition to challenging the exclusion of evidence, the

defendants also challenge the court's decision to admit evidence – including evidence regarding the investigation of the

Vaughn and White double murder. They argue that the district court abused its discretion in allowing Fields to introduce

evidence regarding the Vaugh/White investigation because

that investigation was irrelevant and the evidence was offered

solely to show O'Callaghan's alleged propensity to coerce

false witness identifications. The defendants further argue

that the evidence had no probative value. They argue that the

evidence tainted Murphy as well, because Murphy was

O'Callaghan's supervisor who Fields argued should have

prevented the allegedly improper witness identification.

Although the defendants argue that the district court "did

not engage in a meaningful Rule 403 analysis,” that is belied

by the record. The court heard oral argument on the matter,

and ordered additional briefing specifically as to that issue,

prior to making its decision. Moreover, the district court, in

determining whether the probative value of the evidence outweighed its potential prejudicial impact, had the benefit of

having heard evidence in the context of the case as a whole in

the first trial which ended after 7 days in a mistrial, and in the

second, month-long, trial. The court therefore was well-situated to assess the relevance of the evidence and its potential

for misuse.

The court did not abuse its discretion in allowing the admission of the evidence in this case. Although the defendants

portray the Vaughn/White investigation as distinct from the

Smith/Hawkins investigation, and unrelated to it, the court

properly rejected that characterization. The court noted that

Nos. 17-3079, 17-3125 & 18-1207 19

the intent of the individual defendants was directly in issue

as to Fields' malicious prosecution claim, such that Fields had

to demonstrate that they acted with malice, defined as acting

for a purpose other than to bring the crime's true perpetrator

to justice. As to Fields, the Smith/Hickman and the

Vaughn/White investigations had the same genesis. Anthony

Sumner was arrested and faced the death penalty for the

Vaughn and White murders. To better his situation, Sumner

offered information as to crimes committed by El Rukns, including seven murders. At that time, he implicated Fields in

both the Vaughn/White and the Smith/Hickman double murders. Therefore, the investigation of Fields for the Smith/Hickman murders arose from the statements made by Sumner implicating him in both double murders and the investigations

as to both proceeded at that time. Fields sought to demonstrate at trial that O'Callaghan had reason to know very early

in the investigation that Sumner's statements implicating

Fields in the Vaughn/White murder were not credible, and

that he fabricated evidence to nevertheless implicate Fields in

that double murder. That calls into question whether

Sumner's implication of Fields in the Smith/Hickman double

murder could have been considered credible by O'Callaghan,

and whether he acted in good faith in pursuing that charge.

The court held that "[i]f Fields can show that an individual defendant deliberately took steps to fabricate or conceal evidence in connection with Vaughn/White, it tends to

make it more likely that the same defendant acted deliberately—i.e., with malice—in connection with Smith/Hickman.” Order Regarding Evidentiary Issues Addressed on

11/15/2016 at 9. Because Sumner implicated Fields in the two

double murders at the same time, and with the same incentive

to deceive so as to receive a reduced charge and sentence, the

20 Nos. 17-3079, 17-3125 & 18-1207

actions in response to both double murders are relevant, or so

the district court could properly determine. The court held

that "Federal Rule of Evidence 404(b) specifically permits use

of other act evidence – if that is what this is, which is perhaps

questionable given the intertwining of the matter – to show a

party's intent or motive.” Corrected Op. at 30. Our review is

quite limited in analyzing evidentiary decisions by the court,

and we find no abuse of discretion in the district court's conclusion that actions with respect to the Vaughn/White investigation were relevant to demonstrate the intent as to the

Smith/Hickman investigation given their common inception

and overlap. Doornbos, 868 F.3d at 579.

H. Morris affidavit

In yet another challenge to the court's evidentiary decisions, the defendants contest the admission of the 2011 affidavits by Gerald Morris to impeach Morris's criminal trial testimony. Morris provided witness testimony at the criminal trial

identifying Fields as a perpetrator. He subsequently retracted

that identification of Fields, and provided affidavits to that effect. Morris was unavailable to testify at trial, and the district

court allowed the use of those affidavits at trial pursuant to

Federal Rule of Evidence 806, which allows the use of statements to impeach a declarant's hearsay statement. The defendants object to the applicability of that Rule on the ground

that Morris's criminal trial testimony was not used for its

truth, but rather was used for the non-hearsay purpose of allowing the jury to assess the materiality of the allegedly withheld and fabricated evidence underlying the due process

claim. The district court properly rejected that argument. In

Nos. 17-3079, 17-3125 & 18-1207 21

addition to using the transcripts for that non-hearsay purpose, the defendants also used Morris's criminal trial testimony for a hearsay purpose—to prove Fields's guilt of the

Smith/Hickman murders, a purpose that relied on the truth of

Morris's testimony. In fact, in determining that the testimony

was being used for a hearsay purpose, the district court

quoted opening arguments by counsel for the defendants,

pointing to the eyewitness testimony of Morris and two other

persons to show that Fields was guilty of the murders. Therefore, the argument that Morris's testimony was used only for

non-hearsay purposes is meritless. With Morris unavailable at

trial, the court did not err in finding that the Morris affidavits

could be admitted under Rule 806.

The defendants' argument that the prejudicial impact outweighed the probative value is also unavailing. As the district

court recognized, the defendants were able to present their

own out-of-court statements by Morris disavowing statements in the affidavits, and were also able to introduce evidence as to the circumstances under which the affidavits were

obtained to attempt to discredit those affidavits. The court's

reasoned weighing of the Rule 403 factors was not an abuse of

discretion. Nor did the court abuse its discretion in refusing

to reopen discovery to allow the defendants to depose Morris

following the 2014 month-long trial and before the 2016 trial;

discovery had long been closed and a month-long trial completed before the request was made, and the court reopened

discovery before the 2016 trial only as to the narrow issue

upon which the new trial motion had been granted. Moreover, the court noted that there was ample opportunity for either party to take Morris's deposition before discovery closed

for the 2014 trial, and that it specifically permitted that. District court judges are accorded broad discretion in discovery

22 Nos. 17-3079, 17-3125 & 18-1207

matters, and therefore our review is deferential and only for

abuse of discretion. Kuttner v. Zaruba, 819 F.3d 970, 974 (7th

Cir. 2016); Thermal Design, Inc. v. Am. Socʹy of Heating, Refrigerating & Air-Conditioning Engineers, Inc., 755 F.3d 832, 837 (7th

Cir. 2014). Regarding temporal limitations on discovery, we

have asked whether some time limit was warranted and, if so,

was the time limit imposed a reasonable one that allowed the

parties a meaningful opportunity for discovery. Kuttner, 819

F.3d at 974. Here, the parties had an opportunity to take Morris' deposition prior to the first completed trial, and it was reasonable for the district court to ensure that the second full trial

did not get unnecessarily delayed by a reopening of the discovery and evidentiary decisions already made in the first full

trial. The defendants have failed to demonstrate any abuse of

discretion in the court's decision to limit the reopening of discovery in that manner.

I. Whiteout question

Finally, the defendants argue that the district court erred

in allowing Fields's attorney to "accuse” Murphy of whiting

out the notes of his debriefing of Sumner. They argue that

there was no good faith basis to ask Murphy if his notes of the

Sumner interview were whited out, and that the baseless accusation that the notes were redacted was therefore improper.

See United States v. Beck, 625 F.3d 410, 418 (7th Cir. 2010). They

allege that the unsupported allegation prejudiced Murphy,

and that the court erred in refusing to take remedial action.

This argument is without merit, because a good faith basis

for the question is apparent in the record. The copy of the contemporaneous handwritten notes taken by Murphy of his interview of Sumner had gaps within it containing blank spaces

Nos. 17-3079, 17-3125 & 18-1207 23

that appeared unrelated to the organization of the notes as a

whole in that it did not match the structure of the notes generally. The original of the notes was not provided. When Murphy hand-wrote the General Progress Report ("GPR”) a year

later, memorializing those notes in the proper form, some sentences contained language not in the original notes, but which

could have been in the portion that corresponded to the blank

gaps. For instance, a sentence in the handwritten notes that

states "Earl [Hawkins] got Fields and Carter” has nothing after it, but has a noticeable blank space both immediately following as well as a blank line below it, in contrast to the rest

of the handwritten bullet points that have no blank line in between them. In the GPR, Murphy has written "Hawkins related that he got Nathson Fields and George Carter to shoot

'Freddy' because they were not known in the neighborhood.”

That difference in wording, in conjunction with the white

spaces that deviated from the general format, provided a

good faith basis to ask whether the gaps reflected white-outs.

See Beck, 625 F.3d at 418 ("an attorney does not need definitive

proof to have a good-faith basis, just '[a] well reasoned suspicion that a circumstance is true.'”). Moreover, the defendants

could not demonstrate that the questioning resulted in the

type of a substantial and injurious effect or influence on the

determination of a jury that would require yet another trial.

Lewis, 590 F.3d at 440; Doornbos, 868 F.3d at 579. There is no

reversible error in the court's decision to allow the questioning.

III. CHALLENGES BY CITY OF CHICAGO

We turn to the challenges raised by the City of Chicago

which involve both trials. First, the City challenges the court's

24 Nos. 17-3079, 17-3125 & 18-1207

decisions to grant a new trial following the first full trial, on

the claims of the individual defendants and, by extension, the

claim of Monell liability. In addition, the City contests the denial of its motion for judgment as a matter of law as to Monell

liability following the second full trial. We consider them in

turn.

The City, joined by the individual defendants, challenges

the district court's decision to grant a new trial as to individual and Monell liability following the jury verdict in that first

completed trial. We review a trial court's grant or denial of a

new trial for abuse of discretion. Browder v. Dir., Depʹt of Corr.

of Illinois, 434 U.S. 257, 263 n.7 (1978); Vojdani v. Pharmsan Labs,

Inc., 741 F.3d 777, 781 (7th Cir. 2013). That standard of review

recognizes that deference should be given to a trial judge who

has had the benefit of observing the trial – in this case a trial

that spanned a month.

A. Rule 60 grant of new trial

We consider first the district court's grant of a new trial as

to the claims of the individual defendants under Federal Rule

of Civil Procedure 60(b), based on newly discovered evidence

discrediting the representations that Hawkins would be imprisoned until 2027. The court held that Hawkins's release

from prison mere months after his testimony in this civil trial

evidenced a pretrial deal in which Hawkins received an accelerated release from prison in return for his testimony in favor

of the defendants.

We begin with the district court's reasoning in granting

the motion for a new trial as to the individual defendants. The

court noted that Hawkins had received benefits in return for

Nos. 17-3079, 17-3125 & 18-1207 25

his testimony in prior proceedings. Hawkins made a deal

with both federal and state prosecutors and testified against

Fields in Fields's 1999 murder retrial. Under the plea agreement, Hawkins – who had received the death penalty in the

first criminal trial – instead pled guilty to two counts of armed

violence and received a sentence recommendation of 42 years

on each count to be served consecutively. R. 770-2 at 7-8. He

obtained further benefits in return for his testimony at the

proceedings for Fields's petition for a certificate of innocence.

Hawkins's plea agreement prior to that time provided that he

agreed to cooperate with law enforcement and testify in return for two consecutive 42-year prison terms, totaling 84

years, to run concurrently to his federal prison term. That plea

agreement explicitly provided that it was the intent of both

sides that Hawkins would remain in custody until age 72,

which would be the year 2027. Id. at 8.

In conjunction with his testimony against Fields on his petition for a certificate of innocence and civil trial, Hawkins entered into a revised plea agreement with the Cook County

States' Attorney which reduced his prison sentence to two

consecutive 39-year terms, for a total of 78 years. The revised

plea agreement eliminated the statement regarding Hawkins

serving until the age of 72, replacing it with language stating

that "[i]t is the intent of both parties that defendant Hawkins

not serve any additional time in state custody beyond what

he is already serving in his federal sentence. Defendant Hawkins will receive credit for time spent in state custody dating

back to his original arrest on May 18, 1985.” Dist. Ct. Memorandum Opinion and Order 4-6-15 ("Mem. Op.”) at 14. In a

joint deposition covering both the certificate of innocence proceedings and the present civil case, Cook County Assistant

States' Attorney Brian Sexton provided testimony so as to

26 Nos. 17-3079, 17-3125 & 18-1207

"place on the record” the understanding as to the revised plea

agreement. Sexton testified that the understanding in the original plea agreement had been that the state and federal sentences would be served concurrently, such that all of his sentence could be served in federal custody with no additional

state time following the expiration of his federal sentence.

Sexton noted that there had been some confusion and that the

original "out date” from the Bureau of Prisons on the federal

sentence had been 2016, but provided a letter from the AUSA

William Hogan clarifying that Hawkins' actual "out date” on

the federal sentence was 2027. Accordingly, the state plea

agreement was revised to provide for 39 years on each count,

to be served consecutively, thus totaling 78 years for the state

offenses rather than 84 years, and ensuring that the termination of the state sentence would coincide with the end of the

federal one. That revision would ensure that Hawkins could

complete his time in federal rather than state incarceration,

while still ensuring a release date of 2027. Sexton declared that

the change was a clarification rather than a new agreement, to

reflect the original understanding of the plea agreement. That

letter from AUSA Hogan setting forth Hawkins' release date

provided:

As we discussed, the BOP calculates Hawkins's statutory release date as January 1, 2027, at which time he

will have served 40 years of his 60 year federal sentence

(i.e., his mandatory expiration date under the preguidelines law with credit for time served from September 19, 1987,the date of imposition of his Illinois

murder sentence by Judge Maloney, and 10 days per

month statutory ʺgood timeʺ pursuant to the provisions of former 18 U.S.C. § 4161). The ʺtwo-thirds dateʺ

and ʺprojected satisfaction dateʺ of 9-18-2016 shown on

Nos. 17-3079, 17-3125 & 18-1207 27

page 2 of the Sentencing Monitoring Computation

memo have no bearing on Hawkinsʹs actual release

date under former 18 U.S.C. §§ 4205 and 4206; as you

have been advised by both me and Tony Merola of the

BOP when we contacted him in approximately February 2002 on this issue, Hawkins will be ʺcontinued to

expirationʺ (i.e., ʺmax outʺ on his sentence) based on

his criminal history, Offense Severity Rating and Salient Factor Score, and the provision in § 4206 that ʺthere

is a reasonable probability that he will commit any

Federal, State, or Local crimeʺ if released before mandatory expiration.

Id. at 16-17. Thus, the deposition testimony as part of the present civil trial confirms that Hawkins would serve his term to

the statutory release date of January 2, 2027, at the age of 72,

based on his sentence and the relevant release factors of his

criminal history, Offense Severity Rating and Salient Factor

Score, and the reasonable probability of recidivism. As so portrayed, that was consistent with the original plea agreement

which had explicitly recognized the intent of both parties that

Hawkins remain imprisoned until 2027 at the age of 72, and

therefore did not shorten his sentence.

As the district court noted, defense counsel repeated that

representation throughout the trial, emphasizing that Hawkins would be imprisoned for life and that he was receiving

no deal in return for his testimony at the civil trial. Defense

counsel called Hawkins to testify, and elicited testimony from

him to that effect:

28 Nos. 17-3079, 17-3125 & 18-1207

Q: And is it true that you will not be released from the

penitentiary until you are 72 years of age?

A (Hawkins) : I never agreed to that. Thatʹs what they

said. I thought my time would be up when my 60 years was

up in 2016.

Q: You have come to learn that you actually will remain

in custody, isnʹt that true?

A: If nothing donʹt happen, thatʹs what theyʹre saying.

Q: Is that until 2028, do you know?

A: No. I thought my paper said that Iʹm in jail until 2026,

and at one time we went to

–

Q: We donʹt want to go into other matters.

THE COURT: 2026. He said he thought it was 2026.

MR. BURNS: Very well, Judge.

Id. at 17. Although the defendants in this appeal seize

upon the "[i]f nothing don't happen” language as indicating

that he could obtain an early release under his current sentence, the only plausible meaning in light of the unequivocal

statements at the deposition was that he would be imprisoned

until at least 2026 under the current agreement, and would

serve that time unless something happened such as another

revision of the plea agreement in the future. His subsequent

statement that he would be in jail until 2026 reaffirms that understanding.

As the district court noted, "[s]omething did happen.”

Less than three months after his testimony in this civil case,

Hawkins received a parole hearing at which the examiner

Nos. 17-3079, 17-3125 & 18-1207 29

noted that AUSA Hogan was listed as his representative and

could not appear but would be sending a letter in support of

Hawkins. The Parole Commission then received letters from

Hogan, Sexton, and defendants Daniel Brannigan (a defendant in the civil case in the first full trial who is no longer in the

case) and O'Callaghan. Hawkins was granted immediate release on federal parole, at which time the terms of the revised

plea agreement ensured a release on the state charges as well.

Therefore, within a few months of testifying in favor of the

defendants against Fields, Hawkins' term of imprisonment—

which originally would have provided for a release in 2027 on

the federal charge and a nearly identical sentence on the state

charges—morphed into a September 2014 release on both federal and state charges. The district court could properly hold

that the timing and the coordination of letters between Hogan, Sexton, and the defendants, as well as the pretrial machinations to restructure the language of the state plea agreement, evidenced a deal that existed pretrial to provide an

early release in exchange for Hawkins's testimony at the civil

trial.

As stated earlier, we review the district court's grant of

Rule 60(b) relief only for abuse of discretion. "An abuse of discretion on a Rule 60(b) motion 'is established only when no

reasonable person could agree with the district court; there is

no abuse of discretion if a reasonable person could disagree

as to the propriety of the courtʹs action.'” Lee v. Vill. of River

Forest, 936 F.2d 976, 979 (7th Cir. 1991), quoting McKnight v.

United States Steel Corp., 726 F.2d 333, 335 (7th Cir.1984). Under that highly-deferential standard of review, the defendants

cannot show that they are entitled to relief here. The district

court's decision granting relief under Rule 60(b) is not one as

to which no reasonable person could agree.

30 Nos. 17-3079, 17-3125 & 18-1207

1. Rule 60(b)(2)

The court granted the motion for a new trial under Rule 60

based on the factors in Rule 60(b)(2), which has been interpreted as requiring the movant to show that: he had evidence

that was discovered after trial, the evidence was not merely

cumulative or impeaching, the evidence was material, he exercised due diligence, and the evidence is such that a new trial

would probably produce a different result. Jones v. Lincoln

Elec. Co., 188 F.3d 709, 732 (7th Cir. 1999). First, the court held

that the evidence of Hawkins's release and the circumstances

surrounding it clearly arose after trial and evidenced a pretrial deal in which Hawkins received an accelerated release

from prison in return for his testimony in favor of the defendants. That holding was well-supported in the record.

Moreover, the court held that although the evidence could

be impeaching, it could not be considered merely impeaching.

The court noted that the evidence indicated that the restructuring of his state court deal that appeared to make only a

modest adjustment actually was a bonanza to Hawkins that

had a direct connection to his testimony, and that the posttrial events reflected a pre-trial deal to obtain his early release

in return for his testimony. The court did not err in determining that the evidence was not merely for impeachment. Evidence of the pre-existing arrangement with Hawkins certainly could be useful for impeachment purposes, but here the

evidence is not merely impeaching because it demonstrated

misrepresentation and fraud in the case. The newly discovered evidence does not merely cast doubt on the credibility of

a witness, but rebuts the substantive evidence introduced into

Nos. 17-3079, 17-3125 & 18-1207 31

the record by the defendants, and exposes the misrepresentations as to Hawkins's sentence that were part of discovery, the

trial, and closing arguments. Such evidence implicates the integrity of the fact-finding process. Courts have regularly recognized that such claims of newly discovered evidence of

false statements or fraud can fall under Rule 60(b)(2) as well

as 60(b)(3). Id. at 722 (analyzing a claim of false testimony under Rule 60(b)(2)); Gupta v. U.S. Atty. Gen., 556 F. Appʹx 838,

842 (11th Cir. 2014) (motion alleging the government committed a fraud on the court by presenting false evidence and

withholding other evidence "alleged conduct within the ambit or Rules 60(b)(2) and (3)”); Taylor v. Streicher, 469 F. Appʹx

467, 468 (6th Cir. 2012)(allegation of newly discovered evidence that deposition testimony was false and misleading and

constituted fraud on the court considered under both Rule

60(b)(2) and (b)(3)); United States v. Intʹl Bhd. of Teamsters, 247

F.3d 370, 391–92 (2d Cir. 2001) (evidence regarding Nash's

fraud and possible perjury could properly be considered under Rule 60(b)(2) and therefore Rule 60(b)(6) claim rejected);

Abrahamsen v. Trans-State Exp., Inc., 92 F.3d 425, 426-28 (6th

Cir. 1996) (district court granted relief under Rules 60(b)(2)

and (3) on claim that defendant's attorney was aware that the

defendant had made an inculpatory statement to tow truck

driver but did not reveal that information, thus violating discovery orders and suborning perjury when allowing defendant to testify he had not made any such statement); Washington v. Patlis, 916 F.2d 1036, 1039 (5th Cir. 1990) (holding that a

Rule 60(b) claim of newly discovered evidence of alleged perjury is more properly addressed under Rule 60(b)(2)); Madonna v. United States, 878 F.2d 62, 64 (2d Cir. 1989) (Rule

60(b)(2) "allows the court to relieve a party from a judgment

if new evidence of fraud or mistake is discovered”).

32 Nos. 17-3079, 17-3125 & 18-1207

As the district court noted, in the deposition of Hawkins

in this case, the parties were informed by Cook County prosecutor Sexton that Hawkins would be in prison until 2027 and

that release date was confirmed in the letter from AUSA Hogan. Defense counsel then advanced that same argument in

questioning Hawkins and in arguing the case to the jury at

trial. In fact, in addition to the questioning of Hawkins set

forth above, defense counsel in leading questions on cross-examination of Herschella Conyers – one of Fields's lawyers in

his criminal case – elicited testimony that Hawkins would not

be released until 2027 or 2028. Defense counsel expanded on

that theme at closing arguments, mocking Fields's claim that

Hawkins had received deals for his cooperation by stating

that Hawkins "will be in the penitentiary until 2028 or 26” and

that he would be locked up for "most of his life.” R. 726 at

3072. In fact, defense counsel repeated that contention that no

deals were made with the witnesses, stating that "[t]here was

suggestion that we were cutting deals, Mr. Hogan was cutting

deals. Mr. Hogan said, I cut no deals with these people. Motions were filed. Pleas were entered, 99 years, and that was

reduced over the objection of the government. There was no

side deals, no promises, no winks and nods.” Doc. 726 at 3091-

92; see also Doc. 730 at 475 ("We heard that again today. These

people are getting deals. And you heard from Derrick Kees

getting a deal. Let me be clear on this. I offered no one any

deals. These are people that have testified consistently in

these matters. To suggest that we are now involved with it?”)

That evidence and argument was false in light of the

knowledge of the pre-trial deal that could see Hawkins released within mere months. The defendants' participation in

the hearing that obtained his release and their direct benefit

from his testimony evidenced their prior knowledge of the

Nos. 17-3079, 17-3125 & 18-1207 33

pre-trial arrangement for his early release. Both the timing of

his release and the machinations pre-trial to modify the state

plea agreement in a way that proved to be a bonanza rather

than a "clarification” provide ample support in the record that

the representations as to Hawkins's sentence were false.

The court further found that there was no viable claim of

a lack of due diligence. The court detailed that Fields's attorney was told at the deposition that Hawkins would be imprisoned until 2027, was given a letter from the federal prosecutor

that said the same, and defense counsel advanced the same

view in questioning Hawkins at trial and arguing the case to

the jury. The district court accordingly held that "[k]nowing

what she knew at the time, Fields's counsel would have had

no basis to doubt those statements. And there is no basis to

believe that further inquiry on counsel's part during discovery, or prior to trial, would have turned up anything different.” Mem. Op. at 20.2

2 The district court in its opinion granting a. new trial described at

length that sequence of events, from the misrepresentations at the deposition to questioning at trial to the early release—extensively quoting from

the deposition and trial testimony to detail the trail of misrepresentations.

The court then concluded that the restructuring of Hawkins's sentence

that was portrayed as a "clarification” was actually a bonanza connected

to his testimony, and that the post-trial events reflected a pre-trial deal.

That is the claim of fraud and misrepresentation that we discuss under

Rule 60(b)(2) and (b)(3), and the dissent's contention that this is a new issue unaddressed by the district court is inconsistent with the court's language and analysis. See Mem. Op. at 13-21, Order on City Defendants'

Motion to Reconsider 4-27-15 at 1-2. Moreover, the district court issued its

decision in the context of the briefing below, and although Fields based

his claim on Rule 60(b) generally, the defendants-appellants properly recognized and analyzed Fields's argument as invoking claims of fraud and

34 Nos. 17-3079, 17-3125 & 18-1207

Finally, the court held that the evidence that Hawkins's

trial testimony would lead to his near-immediate release

would have "cut at the heart of the defendants' case” given

"the critical role Hawkins played in the underlying events

and as a witness at trial,” and held that it was reasonably

probable that such evidence would have produced a different

result in the present case. Id. at 21. In fact, defendant O'Callaghan pointed to Hawkins's testimony implicating Fields in

another murder and in bribery as a basis to explain the low

damage award and to counter Fields's claim that an award of

$80,000 was shockingly inadequate for a due process violation

that resulted in 18 years of incarceration – of which 12 years

were spent on death row. The district court, having observed

the month-long trial as well as the 7-day trial that ended in a

mistrial, was is in the best position to analyze whether the

newly discovered evidence was material in light of the trial as

a whole, and to assess its likely impact. In this case, the district

court had the benefit of both a 7-day trial that resulted in a

mistrial, and a full month-long trial. No district court will

lightly grant a new trial after a month-long original trial, with

its corresponding burden on the jurors and the court itself.

There is no reasoned basis to question the court's determination that the evidence would have cut at the heart of the defendants' case. Although not a basis for our decision to affirm,

we note that the court's perception of that significance was

borne out by the vastly different result in the subsequent trial.

newly-discovered evidence—based on misrepresentations as a deal regarding Hawkins's release date—that were cognizable under subsections

(2) and (3) of Rule 60(b), and discussed the legal arguments under both.

See Doc. 770. As we will discuss in footnote 4, issues so presented in the

district court are properly before us.

Nos. 17-3079, 17-3125 & 18-1207 35

The district court did not abuse its discretion in granting a

new trial pursuant to Rule 60(b)(2).

2. Rule 60(b)(3)

Although we can affirm based solely on Rule 60(b)(2), we

note that claims of fraud and misrepresentation fall even

more typically under Rule 60(b)(3). In the district court, Fields

argued generally for relief under Rule 60 or Rule 60(b) in his

filings without specifying the subsection, save a lone reference in one filing to subsection (b)(2). The defendants recognized that Fields's argument for post-trial relief fell within either of two subsections – as either newly discovered evidence

under Rule 60(b)(2) or alleged fraud under Rule 60(b)(3). Doc.

770 at 1. The defendants accordingly addressed both provisions, arguing that Fields should not be allowed to conduct

post-trial discovery and that his claims should be denied under both Rules 60(b)(2) and 60(b)(3).3 Id. After granting the

new trial under Rule 60(b)(2), the court held that it need not

consider any other arguments for a new trial by Fields. On

appeal, we are not limited by the argument credited by the

district court, but can affirm on any basis apparent in the record, including Rule 60(b)(3) here.4

3 The briefing as to the issue of Hawkins's release under Rule 60 was

completed under a separate schedule than the other issues in the motion

for a new trial. Accordingly, the defendants' response to the Rule 60 claims

as to Hawkins are found in the City Defendants' Response to Plaintiff's

Proposed Discovery Plan for Post-Trial Motions, Doc. 770, rather than in

City Defendants' Combined Response to Plaintiff's Post-Trial Motions,

Doc. 766. See Doc. 766 at 49.

4 Fields asserted in his brief on appeal that we could affirm under Rule

60(b)(3), but although he developed the factual basis for the claim, he

36 Nos. 17-3079, 17-3125 & 18-1207

Under Rule 60(b)(3), "a court may set aside a judgment if

a party engaged in 'fraud (whether previously called intrinsic

or extrinsic), misrepresentation, or misconduct by an opposing party.'” Wickens v. Shell Oil Co., 620 F.3d 747, 758 (7th Cir.

2010). It is an extraordinary remedy granted only in exceptional circumstances. Id. at 759. A party seeking relief under

that provision must demonstrate by clear and convincing evidence that: "(1) the party maintained a meritorious claim at

failed to develop the legal argument beyond one cite. We need not determine whether that presentation ordinarily would be sufficient to raise an

issue here. We have held that we can affirm a district court even on

grounds not raised at all by the appellee, as long as the argument was presented to the district court and the appellant had an opportunity to respond to the argument there such that the appellee did not waive it in that

court. See Thayer v. Chiczewski, 705 F.3d 237, 247 (7th Cir. 2012) and Sebesta

v. Davis, 878 F.3d 226, 233 (7th Cir. 2017); see also Froebel v. Meyer, 217 F.3d

928, 932–33 (7th Cir. 2000) (recognizing that a degree of leniency applies

to the failure to raise all possible grounds for affirmance), Shields v. Burge,

874 F.2d 1201, 1210 n.2 (7th Cir. 1989) (noting that qualified immunity was

not raised on appeal but that "[w]e may affirm the district courtʹs decision

on any ground that the record fairly supports and the appellee has not

waived below.”). That standard was met below, as the defendants-appellants in fact briefed the Rule 60(b)(3) issue there. Moreover, the appellants

addressed the Rule 60(b)(3) issue in the brief on appeal as well, even complaining that "Fields primarily devotes his response, to a new argument:

that the City 'perpetrated a fraudʹ to cover up a conspiracy to enter a secret

deal with Hawkins, ... [and] asserts that, even if Rule 60(b)(2) could not

reach this supposed ʹcorruption of the judicial process,ʹ a court could invoke Rule 60(b)(3) or (b)(6) to grant a new trial.” The appellants devoted

much of their reply brief to countering the Rule 60(b)(3) argument. Given

that the appellant had the opportunity to address the argument both in

the district court and on appeal, and did so, there is no impediment to this

court's consideration of the issue as an alternative ground to affirm in this

appeal.

Nos. 17-3079, 17-3125 & 18-1207 37

trial; and (2) because of the fraud, misrepresentation or misconduct of the adverse party; (3) the party was prevented

from fully and fairly presenting its case at trial.” Lonsdorf v.

Seefeldt, 47 F.3d 893, 897 (7th Cir. 1995); Wickens, 620 F.3d at

758-59. The rule applies equally to both intentional and unintentional misrepresentations, and protects the fairness of the

proceedings and not necessarily the correctness of the verdict.

Id.

Accordingly, we consider the court's reasoning in light of

the factors of Rule 60(b)(3) in determining whether the court

properly ordered a new trial. The court's findings establish all

of those factors. There is no dispute that, mere months after

Hawkins testified in the civil trial, he was released from

prison – shearing 13 years of imprisonment from both his

state and federal sentences. The district court held that the

post-trial development of Hawkins's early release sheds light

on pre-trial events, evidencing a deal in which his accelerated

release from prison was interrelated with his testimony

against Fields. As is set forth above, throughout the case the

defendants and defense counsel misrepresented Hawkins's

sentence and whether Hawkins's testimony in the civil trial

could impact the amount of time he would serve. In fact, the

misrepresentations were so comprehensive that the court

held that Fields's attorney would have no basis to even question those statements. Specifically, the court recognized that

given the testimony of Sexton and the letter in the record from

Hogan, Fields would have had no basis to question the representation that Hawkins would be imprisoned until 2027, and

that there was no basis to believe that further inquiry would

have discovered that it was a misrepresentation. That holding

is well-supported in the record, based on clear and convincing

– indeed, undisputed – evidence including: that the plea

38 Nos. 17-3079, 17-3125 & 18-1207

agreement was revised shortly before trial to eliminate the

language that Hawkins's state sentence should result in his

imprisonment until the age of 72 and instead track the federal

sentence; that Hogan and Sexton represented in this case that

the revision was a clarification not a modification that did not

lessen his sentence and that he would be imprisoned until

2027; that counsel for the defendants repeatedly elicited testimony and argued that Hawkins would be imprisoned until

2027; that Hogan and Sexton in conjunction with two of the

individual defendants in this civil case, then sought his immediate release before the Parole Commission within months

of the conclusion of the trial; and that a few months after the

trial, in 2014, Hawkins was actually released 13 years early.

The district court also recognized that the inability to argue that Hawkins's testimony was interrelated with an accelerated release adversely impacted Fields's ability to present

his case fully and fairly. In fact, the court held that the evidence that Hawkins's trial testimony would lead to his nearimmediate release would have "cut at the heart of the defendants' case” given "the critical role Hawkins played in the underlying events and as a witness at trial,” and held that it was

reasonably probable that such evidence would have produced a different result in the present case. Therefore, Fields

established that he had a meritorious claim and that because

of a misrepresentation, he was unable to fully and fairly present his case.

The defendants challenge the applicability of Rule

60(b)(3), but the arguments largely dispute the court's findings regarding the misrepresentations as to the release date,

and as described above those findings are well-supported in

the record. The defendants also argue that the decision of the

Nos. 17-3079, 17-3125 & 18-1207 39

Parole Commission was not actually impacted by the letters

urging a release, but that is irrelevant. Although it would be

pure speculation to think that the letters were entirely immaterial to the outcome, that is the wrong question. It is irrelevant whether the release resulted from their actions; the relevant issue is whether the unequivocal representation that

Hawkins would be imprisoned until 2027 and therefore could

receive no benefit from his testimony at the civil trial was

false, and the clear answer is that it was – and that the defendants knew that it was wrong, although even unintentional

misrepresentations can fall within Rule 60(b)(3).

The defendants also argue that the restructured plea

agreement did not rest on misrepresentations because its

guarantee of an immediate release on the state convictions

when his federal custody ended merely reflected the original

intent to ensure he did not serve additional time in state custody. But the problem with the restructured agreement is not

that it tied the state term to the federal term. The misrepresentation is the statement that the restructured agreement was

merely a clarification of the original intent of the plea agreement and not a new agreement that would materially alter his

sentence. The coordination of the release from federal and

state charges would not be problematic if, as represented, the

federal term would run until 2027. That proved to be false, as

became apparent when he was instead released from that federal term 13 years early. Because of the restructured agreement, he was then also released from his state sentence 13

years early. Given that the original plea agreement explicitly

provided that it was both parties' intent that Hawkins would

be imprisoned until the age of 72 in 2027, the restructured

agreement which allowed for his release 13 years earlier could

not be a "clarification” of the original plea agreement that did

40 Nos. 17-3079, 17-3125 & 18-1207

not modify the original intent. It obliterated that original intent by allowing for the earlier release, because it was based

on a misrepresentation as to the end date for his federal term.

And the removal of that language regarding the mutual intent

that he remain imprisoned until age 72, even though its retention would not have been inconsistent with the "clarification”

that he serve his time in federal custody, further indicates a

design to engineer an early release. The district court's findings establish Fields's entitlement to a new trial under Rule

60, and therefore the court did not abuse its discretion in

granting that new trial.

B. Rule 59(e) grant of new trial

The City also challenges the grant of a new trial under Federal Rules of Civil Procedure 59(e) on the claim of Monell liability. The court rested its decision to grant a new trial on two

alternative grounds, either one of which the court deemed

sufficient to necessitate a new trial. First, the court held that a

new trial was necessary because its limitation on discovery

prevented Fields from pursuing the evidence to support his

claim of Monell liability. Second, the court held that its jury

instruction on the Monell claim and its response to a question

regarding Monell liability by the jury during its deliberations

created jury confusion and prejudiced Fields. Because we uphold the decision to grant a new trial on the first ground regarding the limitations on discovery, we need not consider

the alternate basis for the new trial based on the jury instruction and the response to the jury question.

"The critical question under Monell, reaffirmed in Los Angeles Cnty. v. Humphries, 562 U.S. 29 (2010), is whether a municipal (or corporate) policy or custom gave rise to the harm

(that is, caused it), or if instead the harm resulted from the acts

Nos. 17-3079, 17-3125 & 18-1207 41

of the entity's agents.” Glisson v. Indiana Depʹt of Corr., 849 F.3d

372, 379 (7th Cir. 2017). Fields sought to establish that the City

had a policy or practice of withholding exculpatory evidence

by using separate files maintained by police officers in criminal investigations that were not provided to prosecutors in

making the charging decisions or to defense counsel in discovery in criminal cases.

The court held that Fields was unfairly prejudiced at trial

by its discovery rulings that prevented Fields from obtaining

and investigating the "street” files held by police officers in

the "basement” filing cabinets.

The district court refused Fields's request to lift the protective order as to those files, under which Fields's counsel could

review the files but could not disclose any information to the

public. Fields sought to make public the names of defendants

for whom such street files were kept, arguing that such disclosure was necessary to contact the defense attorneys in

those cases and to determine whether the material in the

street files had been improperly withheld in the criminal case.

Fields argued that the production and public disclosure of the

files was necessary to ascertain the information to show a pattern or practice of Brady violations as relevant to demonstrate

Monell liability. Fields also contended that the names of the

defendants on those "street” files should be made public as a

matter of justice to ensure that wrongful convictions could be

redressed. The court, in denying the discovery request, focused on the latter purpose and rejected the request. The court

also cautioned Fields against raising the issue again, stating

that any further request would be summarily denied. The

court left open the ability of Fields to seek to introduce evi-

42 Nos. 17-3079, 17-3125 & 18-1207

dence from the files that was relevant to the case, but precluded disclosure of the files or the names. But the court later

held that the only way Fields could argue that files were not

tendered to defendants in other cases would be to bring in

defense counsel from those cases – a feat rendered insurmountable by the prohibition on the disclosure of the information in the street files.

On considering the motion for a new trial, the district

court held that Fields was unfairly prejudiced by the court's

discovery ruling that "effectively prevented him from ascertaining whether evidence in files found in the so-called 'basement' file cabinets had been withheld from criminal defense

attorneys in other cases.” Mem. Op. at 10. The court stated

that it had failed to properly appreciate the purpose for which

Fields's counsel sought the files. In order to prove his claim of

Monell liability, Fields had to demonstrate a pattern or custom

of wrongdoing, and access to those street files that were withheld from criminal defense attorneys was critical to demonstrate that policy or practice. The district court recognized that

a discovery ruling will entitle a party to a new trial only if it

denied the moving party a fair trial, but held that its restriction on discovery in this case did so. See Pickens v. Runyon, 128 F.3d 1151, 1155 (7th Cir. 1997); see also Kuttner v. Zaruba, 819 F.3d 970, 974 (7th Cir. 2016) (relief may be proper

where a denial of discovery results in actual and substantial

prejudice). The discovery restriction rendered it impossible

for Fields to attempt to prove that the police department's

method of file maintenance and disclosure impacted anyone

other than himself, and therefore made it "virtually impossible” for Fields to establish a policy of concealing exculpatory

evidence in that manner. In fact, the court noted that defense

Nos. 17-3079, 17-3125 & 18-1207 43

counsel emphasized that failure of proof in closing arguments

in stating:

There was no evidence presented as to any file, not one,

that information was withheld from anyone . ... But to

suggest there's a widespread practice that exists that we

withhold exculpatory or impeaching information, what

case? We didn't hear a word about it ... Is there evidence

to support a widespread practice? No. No, there's not.

Mem. Op. at 11.

The court did not abuse its discretion in that decision. The

discovery sought by Fields would have opened the door to

exploring the extent to which the withholding of evidence

was a systemic practice by the City, and to determining

whether exculpatory information in those files had been disclosed to defense counsel in those other cases. The court's prevention of that discovery foreclosed Fields's ability to prepare

and present the case for Monell liability. The court's recognition of that mistake after the month-long trial, and its willingness to correct it, was not an abuse of discretion. Because that

ground alone supported the court's decision to grant a new

trial as to Monell liability, we need not address the court's alternative basis for granting a new trial – that the instruction

for Monell liability and the response to the jury question deprived Fields of a fair trial

C. Rule 50 motion for judgment

In its final challenge, the City contends that if the decision

to grant a new trial is upheld, then the decision of the jury in

44 Nos. 17-3079, 17-3125 & 18-1207

the subsequent trial should be overturned and judgment entered in favor of the City. The City argues that in Monell liability cases premised upon a widespread practice or implicit

policy, a plaintiff cannot succeed by showing only a single instance of unconstitutional activity pursuant to a facially constitutional policy. Applying that principle, the City asserts

that although Fields presented evidence that exculpatory material was not disclosed to him, he needed evidence of similar

Brady violations in other cases to prove a Monell claim. The

City asserts that Fields proved that investigative materials

were not disclosed to other individuals, but did not prove

Brady violations with respect to those individuals because

Fields did not provide a meaningful record of their criminal

proceedings and therefore the jury could not determine

whether any undisclosed material affected the result in other

proceedings. The City argues that Monell liability was not established because, "[w]hen a municipal policy is facially constitutional, a 'series of unconstitutional acts' is necessary to

demonstrate deliberate indifference to deficiencies in that policy.” Brief of City at 46-47.

We have rejected that narrow interpretation of Monell liability, recognizing that "a risk of constitutional violations can

be so high and the need for training so obvious that the municipalityʹs failure to act can reflect deliberate indifference and

allow an inference of institutional culpability, even in the absence of a similar prior constitutional violation.” J.K.J. v. Polk

Cty, 960 F.3d 367, 380 (7th Cir. 2020)(en banc). For that reason

alone, the City's challenge cannot stand.

Moreover, Fields presented evidence of similar violations

that provided notice to the City. The district court assumed

that a plaintiff must show more than deficiencies specific to

Nos. 17-3079, 17-3125 & 18-1207 45

his own experience, and held that "Fields's evidence, including evidence of systemic underproduction of police reports,

was sufficient to show a systemic failing that went beyond his

own case.” Corrected Op. at 7. The court held that the City

was on notice – from prior litigation and its own subsequent

internal inquiry—of deficiencies in its record-keeping and

record production practices that led to harm in some cases.

Fields produced evidence that the City did not introduce policies sufficient to correct those known deficiencies.

Our review is a narrow one. Jury verdicts are accorded

great respect, and on review we consider whether the evidence presented to the jury was legally sufficient to support

the verdict against the City. J.K.J., 960 F.3d at 378. In making

that determination, we do not reweigh evidence, assess witness credibility, or otherwise usurp the role of the jury as factfinder, and we give the nonmovant the benefit of every inference. Id.; Ruiz-Cortez v. City of Chicago, 931 F.3d 592, 601 (7th

Cir. 2019). "To the contrary, we must affirm unless there is 'no

legally sufficient evidentiary basis for a reasonable jury to find

for the non-moving party.'” Id., quoting Woodward v. Corr.

Med. Servs. of Ill., Inc., 368 F.3d 917, 926 (7th Cir. 2004).

Monell recognized that "[a] local governing body may be

liable for monetary damages under § 1983 if the unconstitutional act complained of is caused by: (1) an official policy

adopted and promulgated by its officers; (2) a governmental

practice or custom that, although not officially authorized, is

widespread and well settled; or (3) an official with final policy-making authority.” Thomas v. Cook Cty. Sheriffʹs Depʹt, 604

F.3d 293, 303 (7th Cir. 2010); Monell, 436 U.S. at 690; Valentino

v. Vill. of S. Chi. Heights, 575 F.3d 664, 674 (7th Cir.2009). "[A]

'cityʹs policy of inaction in light of notice that its program will

46 Nos. 17-3079, 17-3125 & 18-1207

cause constitutional violations is the functional equivalent of

a decision by the city itself to violate the Constitution.'” J.K.J.,

960 F.3d at 378 (internal quotation marks omitted), quoting

Connick v. Thompson, 563 U.S. 51, 61–62 (2011). That failure to

act will support Monell liability only if the City had notice that

its programs would cause constitutional violations, which requires a showing of a "known or obvious” risk that constitutional violations will occur. Id. at 379, 381. That notice can be

established in various ways, such as through proof of a prior

pattern of similar constitutional violations, or through a

demonstration that the need for governmental action is so obvious, and the inadequacy so likely to result in constitutional

violations, that the failure to act constitutes deliberate indifference even in the absence of similar prior constitutional violations. Id. at 380. Regardless of the approach taken, "[t]he

critical question under Monell, ..., is whether a municipal (or

corporate) policy or custom gave rise to the harm (that is,

caused it), or if instead the harm resulted from the acts of the

entityʹs agents.” Glisson, 849 F.3d at 379.

Here, the district court properly recognized that "street

files” were utilized by law enforcement officers and that a jury

could find from the evidence introduced by Fields that there

was a "systemic underproduction of exculpatory materials to

prosecutors and defense counsel.” Corrected Op. at 7 n. 8. The

City argues that it was not enough for Fields to produce evidence of ongoing use of street files in which investigative materials were withheld, but Fields must also demonstrate that

the withheld evidence would have affected the outcome of the

criminal trial. Although knowledge of the risk of constitutional violations is necessary for Monell liability, the City's

knowledge of that risk is unquestionable in this case. As the

district court recognized, the City was aware as a result of

Nos. 17-3079, 17-3125 & 18-1207 47

prior litigation that the use of street files and the failure to ensure the production of the evidence within those files presented a constitutional problem. In Jones, 856 F.2d at 996, we

recognized that the custom of the maintenance of street files

was department-wide and of long standing, and that a jury

could therefore conclude it was consciously approved at the

highest policy-making level for decisions involving the police

department. See also Palmer v. City of Chicago, 755 F.2d 560 (7th

Cir. 1985). In fact, the City in Jones did not even contest that

the use of such a practice presented a due process problem,

although the City represented it had abandoned the practice.

Id. at 995. The evidence presented in this case – that such street

files were still being used and that exculpatory evidence from

such files was still being withheld in criminal cases – allowed

a jury to conclude that the City had failed to take the necessary steps to address that unconstitutional practice. Accordingly, the district court did not err in determining that there

was a legally sufficient evidentiary basis for a reasonable jury

to find for Fields on the issue of Monell liability.

The decision of the district court is AFFIRMED.

48 Nos. 17-3079, 17-3125 & 18-1207

SYKES, Chief Judge, dissenting. The first trial in Nathson

Fields's wrongful-conviction suit ended in a mistrial. The

second resulted in an $80,000 verdict against one of the

Chicago police officers involved in his criminal case. Fields

moved for a new trial pursuant to Rule 60(b)(2) of the Federal Rules of Civil Procedure, which permits the court to grant

relief based on newly discovered evidence. The judge granted the motion, and a third jury awarded $22 million in

compensatory damages against two Chicago officers and the

City, plus punitive awards of $30,000 and $10,000 against the

officers.

The case should not have been tried a third time.

Rule 60(b)(2) authorizes the court to grant a new trial based

on newly discovered evidence if (1) the evidence was discovered after trial; (2) the moving party exercised due diligence

in discovering it; (3) the evidence is not merely cumulative or

impeaching; (4) the evidence is material; and (5) the evidence

is likely to produce a different result in a new trial. Harris v.

Owens-Corning Fiberglass Corp., 102 F.3d 1429, 1434 n.3 (7th

Cir. 1996). The new evidence at issue here was additional

impeachment evidence concerning the precise terms of the

deal offered to Earl Hawkins for his testimony in this case.

That's insufficient as a matter of law to support a request for

a new trial under Rule 60(b)(2).

The judge acknowledged that the new evidence was impeachment evidence. But he said it could not be considered

"merely impeaching” because "[a]rmed with this evidence,

Fields's counsel could have argued that Hawkins's testimony ... should be disregarded in its entirety.” It's hard to

make sense of this reasoning. The judge's sole rationale for

characterizing the new impeachment evidence as something

Nos. 17-3079, 17-3125 & 18-1207 49

other than impeachment evidence is just a description of

impeachment evidence.

My colleagues apparently agree; they do not defend this

reasoning. Instead, they conclude that the new evidence

"demonstrated misrepresentation and fraud in the case” and

uphold the judge's Rule 60(b)(2) ruling on that basis. In the

alternative, they reconstrue the judge's decision as if it were

based on Rule 60(b)(3)—which permits relief on a finding of

fraud or misrepresentation—rather than Rule 60(b)(2).

Majority Op. at 30. These alternative grounds are not available to us. We may affirm on any ground fairly supported by

the record but only if the appellee has preserved the argument in the district court. Burns v. Orthotek, Inc. Emps.'

Pension Plan & Tr., 657 F.3d 571, 575 (7th Cir. 2011). Indeed,

"[o]nly if a party raises an argument both here and in the

district court may we use it as an alternate means to affirm.”

Tully v. Barada, 599 F.3d 591, 594 (7th Cir. 2010). Fields did

neither.

Rule 60(b)(3) permits a judge to grant a motion for a new

trial upon a finding of "fraud ... , misrepresentation, or

misconduct by an opposing party.” The burden to obtain

relief under this rule is heavy: the proponent must establish

by clear and convincing evidence that he has a meritorious

claim and that he was prevented from fairly presenting that

claim by the fraud, misrepresentation, or misconduct of the

opposing party. Lonsdorf v. Seefeldt, 47 F.3d 893, 897 (7th Cir.

1995).

Fields did not argue fraud as an alternative basis for his

request for relief under Rule 60(b)(2), and he never sought

relief under Rule 60(b)(3). He neither cited the rule nor

developed an argument under it. The judge likewise made

50 Nos. 17-3079, 17-3125 & 18-1207

no mention of fraud in his Rule 60(b)(2) ruling, and he never

discussed Rule 60(b)(3). He did not apply the heightened

burden of proof or the applicable legal framework, nor did

he make the findings required for relief under the rule.

Accordingly, any argument about fraud—whether under

Rule 60(b)(2) or Rule 60(b)(3)—is waived. Duncan Place

Owners Ass'n v. Danze, Inc., 927 F.3d 970, 973 (7th Cir. 2019)

("Arguments not raised in the district court are waived ... .”).

Indeed, any argument about fraud under either rule has

been doubly waived. On appeal Fields did not make a fraudbased argument under Rule 60(b)(2), and he made no effort

whatsoever to develop an argument under Rule 60(b)(3) as

an alternative basis to affirm. His brief addressed only

whether his new impeachment evidence provided an adequate basis for a new trial under Rule 60(b)(2) on the rationale actually offered by the judge. He mentioned

Rule 60(b)(3) only once, and then only in passing, saying that

"even assuming” the defendants could "formalistically

sidestep” the application of Rule 60(b)(2), their "egregious

misconduct could be corrected under Rules 60(b)(3) (misconduct by opposing party) or 60(b)(6) (the catch-all provision).” That's it.

Undeveloped and perfunctory appellate arguments are

deemed waived. Shipley v. Chi. Bd. of Election Comm'rs,

947 F.3d 1056, 1063 (7th Cir. 2020). Fields therefore waived

any substitute argument under Rule 60(b)(2) or Rule 60(b)(3),

both in the district court and here.

The judge also granted a new trial based on certain arguments raised in Fields's alternative motion under

Rule 59(e), essentially reversing himself on a jury-instruction

issue and a discovery ruling. But this aspect of the judge's

Nos. 17-3079, 17-3125 & 18-1207 51

posttrial decision pertained only to the Monell claim against

the City. The legal error in the judge's Rule 60(b)(2) ruling

requires us to unwind the order granting a third trial on the

claims against the individual officers and reinstate the

$80,000 judgment from the second trial.

Under the single-recovery rule, Fields can recover only

once for his constitutional injury; a plaintiff is "entitled to

only one recovery though different constitutional theories

support liability and different officers were involved.”

Swanigan v. City of Chicago, 881 F.3d 577, 582 (7th Cir. 2018);

see also Janusz v. City of Chicago, 832 F.3d 770, 774 (7th Cir.

2016). So even if the judge's Rule 59(e) ruling was sound, the

single-recovery rule bars any additional recovery on the

Monell claim.

Unwinding the judge's Rule 60(b)(2) order reinstates the

$80,000 compensatory judgment, which brings the singlerecovery rule into play. The City is on the hook for the

reinstated $80,000 award against its officer. See 745 ILL.

COMP. STAT. 10/9-102. And because Fields is entitled to only

one recovery for his constitutional injury, he cannot receive

additional compensation on a Monell theory. This case need

not and should not have been tried a third time.

Accordingly, I would vacate the order granting a third

trial based on the judge's legal error in the Rule 60(b)(2)

ruling and remand with instructions to reinstate the verdict

from the second trial. I therefore respectfully dissent.

The decision of the district court is AFFIRMED.

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