                              In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 16-3291
REGINALD PITTMAN, by his guardian ROBIN M. HAMILTON,
                                        Plaintiff-Appellant,

                                v.

COUNTY OF MADISON, ILLINOIS, et al.,
                                            Defendants-Appellees.
                    ____________________

        Appeal from the United States District Court for the
                     Southern District of Illinois.
       No. 3:08-cv-00890-SMY-DGW — Staci M. Yandle, Judge.
                    ____________________

       ARGUED MAY 24, 2017 — DECIDED JULY 14, 2017
                    ____________________

   Before POSNER, MANION, and KANNE, Circuit Judges.
     POSNER, Circuit Judge. On the 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, charg-
es deliberate indifference by guards and other jail staff to the
2                                                  No. 16-3291


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 atten-
tion 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 ap-
peal, if any.
     Pittman 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 Jus-
tice 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).
    Although Madison County was among the defendants
named in Pittman’s complaint, along with two of the coun-
ty’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 fa-
vor 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 deliber-
ately indifferent to the risk that Pittman would attempt sui-
cide. Pittman ex. rel. Hamilton v. County of Madison, 746 F.3d
No. 16-3291                                                    3


766, 777–78 (7th Cir. 2014). The case was then tried to a jury,
which returned a verdict in favor of both defendants, precip-
itating this appeal by Pittman’s guardian.
    The key witness for Pittman was a man named Bradley
Banovz (pronounced “Banoviz”), who occupied a cell adja-
cent 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 crisis staff.
    Some three hours after the suicide attempt a county de-
tective obtained, in an interview room in the jail, a 25-minute
interview with Banovz about the attempt, which was cap-
tured 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 inter-
view; 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.
    The trial transcript shows that defense counsel had stipu-
lated on the second day of the trial that if the plaintiff’s law-
yer put Banovz on the stand, the defense would not object to
the admission of the 2007 video in evidence, the parties hav-
ing 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
4                                                   No. 16-3291


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 plain-
tiff’s case and the defendants had stipulated to the showing
of the video.
    The judge’s ground for sustaining the objections to show-
ing the video was that the video was hearsay because it rec-
orded a statement that Banovz had made out of court (i.e., in
the interview room at the jail in 2007). But of course the de-
fendants’ 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 cli-
ents had changed their minds—but so what? Stipulations are
not so easily set aside. See Fed. R. Civ. P. 36(b), 16(e).
    Even if the video testimony was hearsay of the sort nor-
mally 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 er-
ror. 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 en-
force the agreement, but “agreements to waive hearsay ob-
jections are enforceable.” United States v. Mezzanatto, 513 U.S.
196, 202 (1995).
No. 16-3291                                                  5


    True, a judge can exclude evidence under Fed. R. Evid.
403 even if the parties have stipulated its admissibility, pro-
vided 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, coun-
sel’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.
   The district judge brushed aside all the reasons why the
video should have been allowed in evidence, and excluded it
without giving any reason why it should be excluded.
    Now it might seem that because Banovz testified at trial,
the video would have added nothing. But no; as Banovz
acknowledged at the trial, the passage of seven years had
dimmed his recollection to a considerable extent—and as
we’ve said, his demeanor at trial was notably different from
his demeanor in the video. But with his memory refreshed
by a transcript of the video recording, at the trial he remem-
bered that in the days leading up to the suicide attempt
Pittman had been depressed and worried and, Banovz be-
lieved, could not “handle the solitary confinement,” and
Pittman had asked defendant (as he is in this lawsuit) Wer-
ner to contact crisis so that crisis would examine Pittman for
“mental stability.” That conversation took place on a Friday,
6                                                  No. 16-3291


Banovz testified, and Werner had promised to refer Pittman
to crisis on Monday—but did not do so, because he didn’t
work that Monday. Pittman hanged himself two days later
without having been referred to crisis. Banovz also testified
that defendant Eaton had told Pittman the night before he
hanged himself that he could consult a crisis counselor, and
that Pittman had been crying for hours that night. But Eaton
hadn’t followed through by referring Pittman to crisis, and
that failure, if Banovz is believed, constituted deliberate in-
difference to a danger that Eaton had reason to know was
real.
     Some details mentioned in the video interview were not
included in Banovz’s trial testimony. On the videotape
Banovz says that Werner thought Pittman was just joking
about needing to see crisis; but at the trial, Werner’s deposi-
tion cast doubt on whether he was able to make such a
judgment. For it turned out that he’d never been told by his
superiors (or at least couldn’t recall having been told by
them) what to do if he thought an inmate was at risk of
committing suicide, what a “suicide crisis” was, or what the
jail’s suicide prevention policy was—if there was such a pol-
icy.
    It was senseless to think that testimony by Banovz seven
years after Pittman’s suicide attempt was as or more reliable
than his recorded testimony made three hours after the at-
tempt. And anyway the stipulation between the parties enti-
tled the plaintiff to play the tape at the trial. The case being
close, showing the video to the jury could have resulted in a
verdict for the plaintiff—and so the judge’s error was not
harmless. The defendants and other witnesses (including
other jail personnel besides Werner and Eaton) testified that
No. 16-3291                                                   7


it was the jail’s policy for any reference to suicide by an in-
mate of the jail to require an immediate referral to crisis even
if the reference appeared to be a joking one. Although Wer-
ner and Eaton testified that Pittman hadn’t mentioned sui-
cide or asked to be referred to crisis on the nights in ques-
tion, they admitted not remembering any of the conversa-
tions they’d had with Pittman on those nights, so their tes-
timony was worthless. And Werner admitted in a pretrial
deposition that he didn’t believe he’d ever been “given any
information about the signs and symptoms of suicide in [his]
training” at the jail.
   Pittman’s brief raises several other issues relating to how
the judge conducted the trial. None of these arguments has
merit.
    Having for the reasons stated no assurance that Pittman’s
claim was fairly tried, we hereby vacate the judgment and
remand the case for a retrial conducted in conformity with
the analysis in this opinion.
8                                                  No. 16-3291


    MANION, Circuit Judge, dissenting.
    In today’s decision, this court holds that when a party
seeking to admit evidence asserts the existence of an out-of-
court agreement to allow that evidence, it is an abuse of dis-
cretion for district judge to exclude that evidence, even when
the judge believes that evidence is inadmissible hearsay and
the moving party has made no showing to the contrary. Be-
cause I disagree, I dissent. Given that today’s decision for the
court lacks some detail, I write separately to examine what
this court has done, and to raise concerns about the burden-
shifting we have imposed.
    In order to reverse the judgment below, this court must
first find that it was an abuse of discretion for the judge in
this case to have excluded Banovz’s video testimony from
trial. The district court held that Banovz was available as a
witness and the plaintiffs had “failed to lay a proper founda-
tion that Banovz lacked the appropriate recollection under
F.R.E. 803(5) … Nevertheless, Banovz was able to review the
[videotaped] statement on the stand and testify to its con-
tents.” Pittman v. County of Madison, No. 3:08-cv-890-SMY-
DGW, slip op. at 12 (S.D. Ill. July 28, 2016). Critically, the
court today makes two factual findings. First, it finds that
“the passage of seven years had dimmed [Banovz’s] recollec-
tion to a considerable extent.” Second, it finds that there was
a stipulation for admitting the video testimony. The court
does not specify why and how it makes these determina-
tions, neither of which is supported by the record. In the
process, the court shifts the burden from the party moving to
admit evidence (to prove foundation for that evidence) to
the party seeking to exclude the evidence (to prove lack of
foundation). See Fed. R. Evid. 103(a)(2).
No. 16-3291                                                   9


    At trial, the district judge excluded the video as lacking a
proper foundation. When pressed, plaintiff’s counsel had no
explanation for why the video ought to have been allowed
other than a reference to a prior, out-of-court informal
agreement with defense counsel. The court also explicitly
asked what harm would come of excluding the video, and
counsel stated simply that the harm was that “the proper
regulation of the Court requires [admitting the videotape]”
based upon the purported prior agreement of the defense
counsel. Transcript of Jury Trial Proceedings Day 2 of 8 at
146:12–147:2, Pittman v. County of Madison, No. 3:08-cv-890-
SMY (S.D. Ill. March 3, 2015), ECF No. 233. Plaintiff’s coun-
sel did not attempt to make any showing that Banovz did
not adequately recall the events about which he was testify-
ing.
     Counsel also failed to make any additional offer of proof
other than to rely upon what he termed a “stipulation,” but
which the trial court explicitly noted was not a stipulation.
At best, the parties had an informal agreement relating to
admission of evidence, the precise contours of which is dis-
puted, and which was never presented to the district judge
until day two of the trial. This court should not elevate that
agreement to the status of a stipulation absent fact-finding
below. Moreover, the so-called stipulation first arose when
plaintiff’s counsel was pressed for an offer of proof for the
video testimony. The trial court explicitly noted that the re-
peated references by plaintiff’s counsel to an agreement was
“not an offer of proof.” Id. at 143:16. In the hearing below re-
lied upon by this court today, the district judge summarized
what was before her: “[T]he offer of proof … as I understand
it [is] some agreement that you allege existed whereby [de-
fense counsel] agreed to allow a hearsay statement to come
10                                                   No. 16-3291


into evidence without proper foundation … . I believe what
you are asking the Court to do is to somehow enforce an
agreement that you say existed [to admit a] statement
[which] is clearly hearsay. It is clearly hearsay.” Id. at 144:22–
145:13.
    Yet even supposing Banovz’s videotaped statement were
improperly excluded, as a court of appeals we would be
obliged to make a further determination: was this improper
exclusion so prejudicial as to require disturbing the judg-
ment below? Specifically, we would be obliged to determine
whether the erroneous exclusion had “a substantial and inju-
rious effect or influence on the determination of a jury and
the result is inconsistent with substantial justice … [E]ven if
a judge’s decision is found to be erroneous, it may be
deemed harmless if the record indicates the trial result
would have been the same.” Lewis v. City of Chicago Police
Dept., 590 F.3d 427, 440 (7th Cir. 2009). As noted above,
plaintiff’s counsel was unable to provide any reason why
exclusion of the videotape would prejudice his client. Fur-
thermore, Banovz was allowed to quietly read the pertinent
parts of the transcript of his videotaped statement in the
presence of the jury before testifying about the aftermath of
Pittman’s suicide attempt. There is no indication that this
was insufficient to jog Banovz’s memory, because he himself
noted: “I’m a very fast reader.” Id. at 151:22. After being
provided with time to read the whole transcript, the judge
verified that Banovz had read the entire thing. Banovz also
stated that the transcript was accurate. During his testimony,
counsel even directed Banovz back to the statement, to re-
fresh his recollection in real time. Id. at 161:4.
No. 16-3291                                                              11


    There is no indication Banovz omitted any information
included in the video: the only complaint that the plaintiff
has is that Banovz was a cagey and unreliable witness in
person. As plaintiff’s trial counsel noted at oral argument,
the entire reason he took the case was the videotape. But
Banovz was still available as a witness. Over eight days of
trial, the jury clearly concluded that the prison guards were
credible when they claimed that they followed prison proce-
dure to the letter. There is no indication that Banovz’s essen-
tially identical video testimony would have changed their
minds. In other words, any error in excluding the video was
harmless. 1
    The district judge in this case was not persuaded that the
videotape was admissible under any of the hearsay excep-
tions and made a reasonable decision to exclude it. This was
not an abuse of discretion, and I therefore dissent.




1
   I also dissent to note that the remedy in this case does not settle two
other, undetermined issues on appeal not addressed by the court. When
this case is retried, the district court will presumably again exclude the
testimony of the bank representative with the financial interest in this
litigation as irrelevant, and will again retain venue in Benton, Illinois. I
find no error in either of these two determinations.
