Reginald Pittman, by his guardian Robin M. Hamilton, Plaintiff-Appellant,
County of Madison, Illinois, et al., Defendants-Appellees.
May 24, 2017
from the United States District Court for the Southern
District of Illinois. No. 3:08-cv-00890-SMY-DGW - Staci M.
POSNER, Manion, and Kanne, Circuit Judges.
POSNER, CIRCUIT JUDGE.
night of December 19, 2007, Reginald Pittman, a pretrial
detainee in the Madison County, Illinois, jail, hanged
himself from the bars of his cell (of which he was the only
occupant) with a blanket. He did not die, but he sustained
brain damage that has left him in a vegetative state, cared
for entirely by his mother with no government benefits. This
suit, brought on his behalf, charges deliberate indifference
by guards and other jail staff to the risk of his attempting
suicide, in violation of the Eighth Amendment. See
Estelle v. Gamble, 429 U.S. 97 (1976). There are
ancillary state-law claims, but they received little
attention at the trial or in the parties' submissions to
us; so since we're reversing and remanding the district
court's decision, we'll defer consideration of those
claims to a subsequent appeal, if any.
had left a suicide note in which he said that he was killing
himself because the guards were "fucking" with him
by not letting him see "crisis, " by which he meant
crisis counselors (the members of a crisis intervention team
at the jail), whose duties include trying to prevent the
inmates from killing or injuring themselves. Although the
"National Study of Jail Suicide: 20 Years Later, "
conducted by the Justice Department's National Institute
of Corrections in 2006 (the year before Pittman's suicide
attempt), found that jail suicides had declined significantly
since 1986, the study also found that suicides in jails and
other detention facilities were three times as frequent as
suicides by free persons. Lindsay M. Hayes, "National
Study of Jail Suicide: 20 Years Later, " pp. 1, 46
(National Institute of Corrections, April 2010).
Madison County was among the defendants named in
Pittman's complaint, along with two of the county's
sheriffs, the defendants who are the particular focus of the
litigation are jail guards Randy Eaton and Matt Werner. In
2011 the district court granted summary judgment in favor of
all the defendants, but our court reversed as to Eaton and
Werner (and so remanded) on the ground that there was a
genuine issue of fact as to whether they had been
deliberately indifferent to the risk that Pittman would
attempt suicide. Pittman ex. rel. Hamilton v. County of
Madison, 746 F.3d 766, 777-78 (7th Cir. 2014).
The case was then tried to a jury, which returned a verdict
in favor of both defendants, precipitating this appeal by
witness for Pittman was a man named Bradley Banovz
(pronounced "Banoviz"), who occupied a cell
adjacent to Pittman's when Pittman hanged himself. He
testified at the trial that in the five days preceding
Pittman's suicide attempt Eaton and Werner had ignored
Pittman's requests to see members of the jail's
three hours after the suicide attempt a county detective
obtained, in an interview room in the jail, a 25-minute
interview with Banovz about the attempt, which was captured
on video. Pittman's lawyer attempted to introduce the
video at the trial, for while Banovz testified at the trial,
that was seven years after the suicide attempt and video
interview; and while he'd been lucid and articulate in
the video interview he was a terrible witness at the trial,
with poor recollection, an alternately hostile and flippant
demeanor, and an inability to counter evidence of his
criminal record harped on by defense counsel.
trial transcript shows that defense counsel had stipulated on
the second day of the trial that if the plaintiff's
lawyer put Banovz on the stand, the defense would not object
to the admission of the 2007 video in evidence, the parties
having agreed to that before trial. In defense counsel's
words, "the agreement was that if, if Bradley Banovz
would testify, that, that [plaintiff counsel] could offer the
video and the statement." Yet as soon as the video
began, the defendants' lawyer objected, and though he
called the objection "pro forma" and said he knew
the video would be played (for remember the stipulation), the
district judge sustained the objection. Twice more during the
trial the plaintiff's lawyer moved to admit the video,
and twice more the defendant's lawyer objected. Each time
the district judge sustained the objection and so the video
wasn't shown after all-even though Banovz's testimony
was the lynchpin of the plaintiff's case and the
defendants had stipulated to the showing of the video.
judge's ground for sustaining the objections to showing
the video was that the video was hearsay because it recorded
a statement that Banovz had made out of court (i.e., in the
interview room at the jail in 2007). But of course the
defendants' lawyer had known all this when he had agreed
to allow the video to be placed in evidence. And he gave no
reason for retracting his agreement; he just said that his
clients had changed their minds-but so what? Stipulations are
not so easily set aside. See Fed.R.Civ.P. 36(b), 16(e).
the video testimony was hearsay of the sort normally excluded
from a trial, the defendants had-to repeat- stipulated to its
admissibility, and a stipulation is binding unless it creates
"manifest injustice" (see Rule 16(e)) or was made
inadvertently or on the basis of a legal or a factual error.
United States v. Wingate, 128 F.3d 1157, 1161 (7th
Cir. 1997); see also United States v. Bell, 980 F.2d
1095, 1097 (7th Cir. 1992); Lloyd v. Loeffler, 694
F.2d 489, 495 (7th Cir. 1982); Cummins Diesel Michigan,
Inc. v. The Falcon, 305 F.2d 721 (7th Cir. 1962);
United States v. Kanu, 695 F.3d 74 (D.C. Cir. 2012).
None of these factors is present in this case. The district
judge said that she didn't think she had the authority to
enforce the agreement, but "agreements to waive hearsay
objections are enforceable." United States v.
Mezzanatto, 513 U.S. 196, 202 (1995).
judge can exclude evidence under Fed.R.Evid. 403 even if the
parties have stipulated its admissibility, provided the harm
of admitting it would substantially outweigh its probative
value. See Noel Shows, Inc. v. United States, 721
F.2d 327, 330 (11th Cir. 1983) (per curiam). But the district
court did not invoke Rule 403; nor is there any indication
that playing the tape would have confused the jury, unfairly
prejudiced the defendants, prolonged the trial, or otherwise
impaired justice. What is more, defense counsel told us at
the oral argument that he thought the video actually
strengthened the defense case, and though it did not,
counsel's statement took all the wind out of his sails.
For he would not have objected to the playing of the video at
the trial had he thought it would strengthen the defense; he
knew it would have weakened the defense.
district judge brushed aside all the reasons why the video
should have been allowed in evidence, and excluded it without