Michael Evans

The 7th U.S. Circuit Court of Appeals has added another injustice to those already suffered by a man who spent 27 years in prison for the rape and murder of a 9-year-old girl before DNA tests exonerated him.

Michael Evans had appealed a jury's defense verdict in his $60 million civil-rights suit against eight Chicago police officers whom he accused of framing him. The appeal challenged the trial judge's decision to allow seven of them to waive their Fifth Amendment rights and testify at trial while barring Evans from impeaching them with their prior silence.

The officers all worked at Area 2, a notorious Chicago police station where suspects were allegedly tortured. Citing a special prosecutor's investigation of Area 2, they took the Fifth at their original depositions in Evans's case.

A 2-1 majority of the 7th Circuit admitted “some concerns that ordering redepositions 5 weeks before the scheduled start of the trial was not enough to cure the prejudice in this case.” But it concluded that U.S. District Judge David H. Coar did not abuse his discretion, saying he “reasonably could have determined that ordering additional discovery cured any prejudice.”

“It does not appear to us that the defendants were gaming the system,” Judge Terrence T. Evans (no relation) wrote in the majority opinion.

The seven officers actually were not deposed until the nine days immediately preceding the trial and several walked out of their depositions to protest the participation of a plaintiff's attorney who they claimed would “harass and intimidate” them.

Judge Evans suggested the plaintiff was at fault for not requesting a continuance when Coar ruled on the first day of trial that the officers would be allowed to testify.

But in a dissent, Judge Ann Claire Williams said the defendants had “created this mess” with the late waiver of their rights but have “suffered no consequences at all: they effectively dodged discovery, got to testify at trial, and kept the whole thing from the jury.”

“Today’s opinion ratifies that neat maneuver,” she continued,

teaching that when a party waives the privilege so late that its opponent suffers prejudice, it is the opponent, rather than the waiving party, that has to fix the situation. That ... is a bad rule -- it encourages gamesmanship, puts the district court in a difficult situation, and undercuts the goal of timely and fair discovery.

Michael Evans was convicted of the slaying of Lisa Cabassa on Chicago's South Side in 1976. He was released in 2003 based on DNA tests that showed he was not the source of semen recovered from the victim.

At the time the officers chose to waive their rights, the special prosecutor's investigation was winding down. “[W]hen used tactically a late waiver of the privilege can wreak havoc on an opposing party and create a fundamentally unfair trial.” Williams noted.

Evans has so far received only the maximum $161,000 under Illinois' wrongful imprisonment law -- a pitiful amount considering the injury he suffered. His attorney, Jon Loevy (Loevy & Loevy, Chicago), says he will petition the 7th Circuit for en banc review.