October 30, 2018
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No.
l:12-cv-00161-SEB-TAB - Sarah Evans Barker, Judge.
Wood, Chief Judge, and Sykes and Barrett, Circuit Judges.
the Supreme Court announced that the prosecution team has a
duty under the Due Process Clause of the Fourteenth Amendment
to turn over material, exculpatory evidence to criminal
defendants. Brady v. Maryland, 373 U.S. 83 (1963);
see also Kyles v. Whitley, 514 U.S. 419 (1995);
United States v. Bagley, 473 U.S. 667 (1985). Walter
Goudy contends in this case that the state and local
officials who pursued him for a 1993 murder failed to comply
with their Brady obligations, and that he is
entitled to damages under 42 U.S.C. § 1983 for the years
he spent in prison. That request was based on his success in
an earlier round of litigation, which culminated with this
court's ruling that Goudy was entitled to a writ of
habeas corpus under 28 U.S.C. § 2254. Goudy v.
Basinger, 604 F.3d 394 (7th Cir. 2010) (Goudy
I). The state elected not to re-try him; he was
released; and 17 months later he filed this suit.
district court winnowed the section 1983 action down to three
allegations that the investigators in the case violated his
due process rights, by (1) subjecting him to an improper
show-up procedure, (2) withholding a videotape showing a
line-up in which several witnesses identified a different
person as the shooter, and (3) withholding interview notes
showing that the other suspect initially had denied any
involvement in the murder, but later switched his story. The
court granted summary judgment for the defendants on all
aspects of the case. We conclude that this was premature:
Goudy presented enough evidence on the second and third
arguments to move forward. We therefore reverse and remand
for further proceedings.
be brief about the underlying incident, which was described
by both the Indiana Supreme Court, in Goudy v.
State, 689 N.E.2d 686 (Ind. 1997), and by this court in
our 2010 opinion. On October 3, 1993, two men fired shots
into a car occupied by several people, including Marvin
McCloud and Damon Nunn. The shooters killed McCloud, who had
been driving, and seriously injured Nunn. A number of people
witnessed these events, including Jill Barclay, Jackie
Barclay (Jill's sister), LaTonya Young, and Kaidi
from Anderson, Indiana, where the shooting had taken place,
picked up Goudy at the Oasis Club on February 5, 1994, after
they received an anonymous tip that one of the shooters was
there. One of the defendants, Detective Rodney Cummings,
contacted Jill Barclay and asked her to come to the police
station to make an identification. When she arrived at the
station, Detective Steve Napier, Cummings's partner and
the other defendant here, told her that they were going to
show her a suspect in the shooting. Cummings then brought
Jill into a room with a one-way mirror and showed her Goudy;
she identified him as one of the shooters. She then talked to
Jackie and told him that the shooter she saw looked like one
of their acquaintances.
focus, however, is on evidence that the jury never heard,
because the state never disclosed it to Goudy. First, the
state had three police reports that contained pertinent
information. We discussed these reports in our 2010 opinion:
The first report describes a phone call to police from Jill
Barclay in which she said she saw one of the gunmen at an
Indianapolis mall. She stated that she thought he kept
looking at her "over his shoulder" and that she
later saw him outside "attempting to look at her license
plate." She later identified this man as [Kaidi] Harvell
and said she was positive he was one of the gunmen.
604 F.3d at 397. The first police report also included
information about a photo spread that Jill Barclay, Jackie
Barclay (Jill's sister), and LaTonya Young viewed. Jackie
and LaTonya saw the shooting from across the street. All
three women "'positively and without hesitation'
identified Harvell as the gunman on the driver's side of
McCloud's car, and said he wore brown clothing."
addition to the photo lineup, there was an in-person lineup
viewed by Nunn, Jill and Jackie Barclay, as well as another
witness, Donzerta Clay (who did not testify at trial). Once
again, the results favored Goudy: "Clay and the Barclay
sisters identified Harvell; Nunn identified a non-suspect as
the shooter." Id. Moreover, Goudy's own
counsel failed to introduce a video confession by Goudy's
lookalike half-brother, Romeo Lee. In that video, Lee
identified himself and Harvell as the two shooters.
noted, after his conviction for murdering McCloud and
attempting to murder Nunn, Goudy sought postconviction
relief. He argued throughout these proceedings that the
state's failure to comply with Brady had
deprived him of a fair trial and that he had received
ineffective assistance of counsel in violation of
Strickland v. Washington, 466 U.S. 668 (1984).
was unsuccessful in the state courts, but in Goudy I
we found that the suppressed evidence was both favorable to
Goudy's defense and material. Accordingly, we found that
Goudy was entitled to a writ of habeas corpus. Goudy
I, 604 F.3d at 401. We found it unnecessary to rule on
Goudy's Strickland claim. Id. at
is now suing two of the investigators on the case, Rodney
Cummings and Steve Napier, for depriving him of due process
in violation of the Fourteenth Amendment. See U.S. Const,
amend. XIV; 42 U.S.C. §1983. Although Cummings wore two
hats-that of an investigator and later that of the County
Prosecutor -our focus is on his investigatory work. The same
is true of Napier. (We refer to them collectively as the
investigators, unless the context requires otherwise.)
general, Goudy's new case asserts the same due-process
theory that formed the basis of the decision to issue the
writ in Goudy I: that he was deprived of a fair
trial in violation of his constitutional rights, as outlined
in the Brady line of cases. But the conduct for
which he seeks to hold the investigators liable is different
from the actions and omissions at issue in Goudy I.
The issue in Goudy I involved material exculpatory
evidence that was not turned over to the defense, but that
was given to the prosecutors trying the case. Police
officers generally discharge their Brady obligations
by turning over such evidence to the prosecutors, who in turn
have a duty to disclose the evidence to the defense.
Beaman v. Freesmeyer, 776 F.3d 500, 512 (7th Cir.
2015). (Notably, "the [Brady] rule encompasses
evidence known only to police investigators and not to the
prosecutor." Strickler v. Greene, 527 U.S. 263,
280-81 (1999) (cleaned up).) Cummings and Napier thus cannot
be held liable in their capacity as investigators for the
failure of the trial prosecutors to turn over the specific
police reports at issue in Goudy I.
three allegations that form the basis of Goudy's section
1983 action are new. We focus on two of the three identified
by the district court. The first is Goudy's assertion
that Cummings withheld a videotape of the lineup in which
multiple witnesses identified Harvell as a shooter and Nunn
identified a non-suspect. The second is his allegation that
the investigators both withheld interview notes-newly
discovered in the course of this litigation-demonstrating
that Harvell initially denied being at the scene at all,
contradicting his trial testimony. Together, we refer to
these arguments as the Brady allegations. We do not
reach Goudy's third theory, which is that the