                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-1669

C HRISTOPHER P ARISH,
                                                Plaintiff-Appellant,
                                 v.

C ITY OF E LKHART, INDIANA, et al.,
                                             Defendants-Appellees.


             Appeal from the United States District Court
      for the Northern District of Indiana, South Bend Division.
             No. 3:07-cv-00452-RL—Rudy Lozano, Judge.



  A RGUED S EPTEMBER 14, 2012—D ECIDED D ECEMBER 20, 2012




  Before P OSNER, R OVNER, and W ILLIAMS, Circuit Judges.
  R OVNER, Circuit Judge. This appeal concerns a civil
action brought under 42 U.S.C. § 1983 by Christopher
Parish seeking damages for his wrongful conviction
based on a violation of the Due Process Clause. The
appeal, brought by Parish who prevailed in his § 1983
action, focuses on the adequacy of the damages
award and the district court’s restriction of evidence
relating to it.
2                                              No. 11-1669

  Parish’s ordeal began on Halloween 1996, when he
was arrested by Elkhart police officers as he prepared
to take his three children trick-or-treating, and charged
with attempted murder and armed robbery. He was
20 years old at the time. Parish maintained his innocence
of the charge and informed the officers that he was at
home and then at a family gathering in Chicago on the
day that the crime was committed.
  Before trial, Parish was offered a plea deal of one year
in prison to avoid the risk of 50 years’ imprisonment, but
he refused to plead guilty. At the criminal trial, the evi-
dence demonstrated that two African-American males,
one tall and one shorter, had burst into an apartment at
an Elkhart housing project and demanded drugs and
money. When Michael Kershner, an occupant of the
apartment, reached for his AK-47 semiautomatic rifle, a
struggle ensued and eventually one of the intruders
shot Kershner in his abdomen. Although severely
injured, Kershner survived the attack. The assailants
fled with a taser, an FK-19 rifle, and laundry money
possessed by one of the occupants of the apartment.
They left behind a hat that the taller of the two
intruders had been wearing, which was a “custom”
black leather baseball cap with rhinestones in the
pattern of a “J” on it.
  The Elkhart Police Department assigned Detective
Steve Rezutko as the lead investigator of the shooting.
One of the eyewitnesses to the incident was inter-
viewed that night and stated that there were two men
involved, that he had seen them around but did not know
No. 11-1669                                              3

their names, and that one of them looked like a guy he
knew, Chris Parish. Another eyewitness to the incident,
Nona Canell, was provided with a photo book, and she
identified the photo of Parish as one of the intruders,
stating that when she saw his photo she was still in
shock and in a reflex at seeing his photo she “dropped
the book . . . .” No physical evidence at the scene tied
Parish to the crime. Based mainly on the eyewitness
testimony, the jury convicted Parish of the crimes.
  For the next eight years, Parish pursued available
avenues of appeal. Eventually, after eight years of impris-
onment, the Illinois appellate court in 2005 overturned
his conviction and ordered a new trial based on the
failure of his attorney to properly investigate and the
introduction of an improper jury instruction. Parish
was 30 years old at the time of his release from prison.
  The government offered Parish a plea that would have
resolved his case with no additional jail time, but Parish
refused that offer. The government then decided not
to proceed with a new criminal trial and dismissed
the case.
  Parish subsequently brought a civil action against a
number of defendants alleging a deprivation of his consti-
tutional right to due process, ultimately dismissing
all defendants except the City of Elkhart and
Steve Rezutko. The jury found in favor of Parish, and
no challenge has been raised to the finding of liability.
In fact, that determination is well-supported by the evi-
dence introduced at trial.
  Although the jury found in favor of Parish, it awarded
him only $73,125 in compensatory damages and $5,000
4                                              No. 11-1669

in punitive damages for the eight years he was wrongly
imprisoned. That verdict is astoundingly low for cases
of wrongful conviction. In a motion for a new trial,
Parish presented the court with evidence indicating that
the average jury award was nearly $950,000 per year
of wrongful imprisonment, with a median of nearly
$790,000 per year. The award here of approximately
$9,000 per year is an extreme outlier. In fact, the
district court accepted that point, noting that the defen-
dants had essentially conceded that the verdict in this
case was “out of line” with many other cases in which
a person was incarcerated due to a violation of the
right to a fair trial.
  Parish argued in his motion for a new trial that as to
the issue of compensatory damages, the damage award
was so low as to lack any rational basis, and that the
trial court erred in improperly limiting the evidence that
Parish could introduce at trial. The court denied that
motion, and we review that denial for abuse of discretion.
Whitehead v. Bond, 680 F.3d 919, 927-28 (7th Cir. 2012).
  The defendants and the court, in response to the
motion for a new trial, asserted as a justification for the
low damages that the jury probably determined that
Parish was guilty of the underlying offense. A jury that
believed the plaintiff was guilty of the crime would
award lower damages because the imprisonment is
attributable to the person’s own actions as well as the
civil defendants’ misbehavior and even a fair prosecu-
tion and trial may well have resulted in the person’s
imprisonment. In light of the relatively uncontested
No. 11-1669                                            5

nature of the damages and the undeniable hardship of
imprisonment, the theory advocated by the defendants
and the court is the only sensible explanation for an
otherwise unfathomably-low damages amount.
  It also is the reason why a reversal of the damages
award is necessary in this case. One of Parish’s argu-
ments for reversal is that the district court refused to
allow him to present significant evidence that he was
not guilty of the offense. Parish sought to introduce
substantial evidence casting doubt on the veracity of
the eyewitness identifications and on the reliability
of the investigation as a whole. That evidence in-
cluded identification of other individuals as possible
perpetrators, and recantations by the eyewitnesses of
their identification of Parish. The trial court’s refusal
to allow such evidence was error. Moreover, the acknowl-
edgment by the defendants and the court of the primacy
of the innocence issue makes clear that the error was
not harmless.
  A look at the evidence allowed and that withheld
from the jury on the question of responsibility for the
crime reveals that the deck was effectively stacked
against Parish. Significant testimony as to Parish’s
guilt of the crime, and particularly the testimony of
eyewitnesses identifying him, was admitted whereas
testimony as to his innocence, including statements
by those same eyewitnesses expressing their doubts as
to that identification, was excluded. The result was that
the jury was deprived of significant probative evidence
as to the issue of Parish’s guilt or innocence. That ap-
6                                              No. 11-1669

pears to have been an unfortunate consequence of a
decision made under the pressure of time, and not subse-
quently altered. The court recognized the potential for
a reversible error when it was presented with extensive
motions in limine on the eve of trial. In fact, the court
encouraged the parties to continue the case to allow
adequate time to delve into the issues presented in
those motions. Parish was willing to do so, but the de-
fendants objected to the option. The defendants, with
their exposure to the case preparation, should have
anticipated that such innocence evidence would be
critical to a fair trial, but they nevertheless sought
and obtained its exclusion. The court’s concern that the
decision might result in reversible error proved prescient.
  As was mentioned, Parish was convicted largely
based on the testimony of eyewitnesses identifying him
as one of the perpetrators. The detective responsible for
the investigation of the crime, Rezutko, had a troubling
history as a lead investigator. At trial, Larry Towns, a
former supervisor of Rezutko as a captain in the Elkhart
Police Department, testified that he decided Rezutko
should no longer be assigned as a lead investigator
in homicide cases prior to October 1996 (when the
Parish investigation occurred.) Towns detailed his
concerns with how Rezutko conducted investigations,
including the repeated use of suggestive photo lineups,
steering of witnesses in identifications, and the uncon-
ventional solicitation of multiple statements from wit-
nesses with additional helpful details included in
the consecutive statements. Despite those concerns,
the Elkhart Police Chief refused to remove Rezutko
No. 11-1669                                             7

from the detective bureau entirely and allowed
him to continue as lead investigator for non-homicide
investigations.
  As a result of Rezutko’s investigation, two persons
were convicted for the crimes of that night—Parish and
Keith Cooper. Cooper was prosecuted and convicted as
the second participant—and shooter. His conviction
was subsequently overturned by the courts as well.
Cooper was then offered a plea deal, that would allow
him to remain free based on time served if he pled
guilty, and he accepted that offer. Accordingly, Cooper
stands convicted as one of the two perpetrators of the
crime. In this § 1983 action, Parish sought to introduce
testimony from Cooper that Cooper had never met
Parish and had never committed any crime with him,
but the court excluded that testimony.
  Parish also had evidence pointing to another possible
perpetrator. One of the assailants was wearing a hat
with a “J” in rhinestones on it that was knocked off in
the fracas. A DNA analysis of the hat matched Johlanis
Ervin, a person who was tall and who was currently
in prison charged along with his brother Michael, who
was of shorter height, with murder. When two of the
eyewitnesses were shown a picture of the Ervin
brothers, they indicated that the brothers looked like
the intruders and that they no longer had confidence
in their identification of Parish.
  The court’s decision regarding the admissibility of
that eyewitness testimony perfectly encapsulates the
problems with this trial, and alone requires reversal. The
8                                               No. 11-1669

court allowed the defendants to read the deposition
testimony of eyewitness Canell identifying Parish as
the perpetrator of the crime, including the dramatic
testimony that she dropped the photo book when she
saw Parish’s picture. The court redacted, however, the
deposition testimony in which Canell stated that Johlanis
Ervin’s brother Michael looks like Christopher Parish’s
twin, and that she is now unsure as to the identifica-
tion. Similarly, the jury heard Kershner’s testimony that
he easily picked out Parish from the lineup and could
have sworn it was him, but the court refused to allow
the testimony that Kershner has since been shown
pictures of the Ervin brothers and believes he may have
misidentified Parish, and would no longer testify that
Parish was the intruder. In addition, the jury did not
hear their deposition testimony that—at Rezutko’s
urging—they had lied at the criminal trial about being
certain of their identification of Parish as the perpetrator.
That decision to redact only the exculpatory portions of
the eyewitness testimony skewed the testimony to such
an extent that it no longer resembled its true nature.
It fundamentally misrepresented what the eyewitnesses
actually believe, and it deprived the jury of critical in-
formation.
  In choosing to so limit the evidence, the district court
stated that the prejudice outweighed the probative
value. A district court may exclude relevant evidence if
the court determines that “its probative value is sub-
stantially outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or need-
No. 11-1669                                             9

lessly presenting cumulative evidence.” Federal Rules
of Evidence 403; Whitehead v. Bond, 680 F.3d 919, 930 (7th
Cir. 2012). The most relevant evidence is, by its nature,
prejudicial, but it is only unfair prejudice that requires
exclusion. Id.; United States v. Boros, 668 F.3d 901, 909
(7th Cir. 2012). Evidence is unfairly prejudicial if it
would cause the jury to decide the case on an improper
or irrational basis, such as by appealing to the jury’s
emotions. United States v. Miller, 688 F.3d 322, 327 (7th
Cir. 2012). Both probative value and prejudice must be
determined in context, and as the probative value in-
creases, so does our tolerance of the risk of prejudice.
Boros, 668 F.3d at 909; Whitehead, 680 F.3d at 930. We
review a district court’s Rule 403 determination for
abuse of discretion. If we determine that the court
abused its discretion in admitting or excluding evi-
dence under Rule 403, we will reverse only if the
error was not harmless. Boros, 668 F.3d at 910; Whitehead,
680 F.3d at 930.
   In excluding the evidence of innocence here, the
court provided little explanation as to what prejudicial
impact such testimony could present. The court at times
focused on what evidence was known at the time of
the crime, limiting the ability of Parish to produce
evidence that was not known at that time. That limita-
tion, however, is relevant only regarding the issue of
liability for wrongful conviction. In assessing the
adequacy of the damages amount, the trial court itself
recognized that Parish’s guilt or innocence was a signifi-
cant issue for the jury in determining the appropriate
damage award, and that issue is not dependent on
10                                            No. 11-1669

what information was available at the time of the
original trial.
  At oral argument, the defendants stated that allowing
the evidence would be prejudicial because it would
entail two or three mini-trials as to the guilt of Cooper,
the Ervins and Parish. The mini-trials of which the de-
fendants complain, however, are merely the necessary
engagements on the critical issues of the trial. As the
court acknowledged, Parish’s guilt or innocence was
an issue in determining the appropriate damages. In
preventing Parish from introducing evidence pointing
to the guilt of others for the crime, and in prohibiting
evidence establishing the unreliability of the eyewitness
identification as to the perpetrators of the crime, the
court did not avoid mini-trials on Parish’s innocence—
it simply guaranteed that the mini-trial on the issue
would include only evidence supporting one side. Nor
did it apparently consider a more nuanced limitation
on the evidence that could be introduced. For instance,
even if the court believed that references to Cooper and
Ervin were prejudicial—a position for which we find
no support—the court could have allowed the jury to
hear that the eyewitnesses no longer believe that Parish
is the perpetrator and would no longer testify to that
effect, and excised references to the Ervins.
  The defendants inexplicably argue that the evidence
that Parish sought to introduce did not establish
Parish’s innocence, but rather addressed only the guilt
or innocence of other persons—specifically Cooper and
the Ervins. There is no merit to this facile argument.
No. 11-1669                                              11

If Parish can establish that another individual is responsi-
ble for the crime, that certainly is evidence that Parish
is not the one responsible—rather strong evidence at
that. The evidence regarding Cooper indicated that the
investigation and prosecution of the case was prob-
lematic and the eyewitness identification unreliable.
DNA linking the “J” hat to Johlanis Ervin cast doubt
on the Cooper conviction, as Johlanis was taller like
Cooper. Although that might call into question the eye-
witness identification regarding Cooper, the defendants
argue that invalidating the eyewitness testimony as to
Cooper has no relevance as to the identification
of Parish as the other assailant. The eyewitnesses that
identified Cooper, however, are the same persons
who identified Parish, and the testimony involved
their recollection and observation of the same event. It
is disingenuous to assert that evidence indicating that
their identification was wrong as to Cooper does not
call into question the reliability of their identifications
for the crime as a whole. Therefore, that evidence
was not “unfairly” prejudicial. The evidence as to the
reliability of the eyewitness identification as to the
events of the night was relevant to Parish’s guilt as well
as Cooper’s, and any danger that the jury would
be swayed by emotion or bias upon hearing of the mis-
identification of Cooper is minimal at best.
  As Cooper is the only person who stands convicted of
the offense, his testimony that Parish did not commit
any crimes with him is of obvious relevance. The court,
however, refused to allow Parish to introduce Cooper’s
statement that he did not know Parish and that Parish
12                                             No. 11-1669

had never committed any crime with him. In fact, it is
difficult to see how that testimony would be unfairly
prejudicial at all. The reluctance to allow such evidence
appears to reflect the court’s concern with the reliability
of the evidence that Cooper was involved in the crime.
Such doubts may well exist in light of the potential con-
nection to the Ervins, although the Ervins have never
been charged. But if the court doubted Cooper’s guilt
because of the potential involvement of the Ervins,
then there is no justification for also preventing Parish
from introducing the statement by Johlanis that he had
never met Parish. Like Cooper, Johlanis Ervin would
have testified that he did not know Parish and never
committed any crimes with him. Therefore, both the
person convicted of the offense and the person
implicated by the DNA evidence would have testified
that they did not know Parish and that he did not
commit any crime with them, and neither was allowed.
That evidence was relevant to Parish’s innocence, and
there is no basis for holding it unfairly prejudicial.
  Finally, the defendants also contend that the low jury
damages award was justified because Parish was never
exonerated of the charge, and therefore the jury could
properly take that into account in determining that he
was responsible for the crime. Given the procedural
progression of the case, this argument is insincere.
Parish refused to enter into a plea bargain at every op-
portunity in the criminal case, choosing to assert his
innocence at trial. Even after serving eight years in
prison, when the government offered him a plea deal
that would have allowed him to serve no additional
No. 11-1669                                               13

time if he pled guilty to the charge, Parish declined the
offer. The government then decided to dismiss the
case, depriving Parish of the ability to obtain that “exoner-
ation” that the defendants now claim he lacks. There can
be no adverse inference of guilt from such a history.
Moreover, even if the jury could consider that, it
would not render the exclusion of the other evidence
harmless. The testimony allowed as to the issue of
Parish’s guilt or innocence was overwhelmingly
skewed; there is no question that the evidentiary errors
were not harmless.
  Because the district court’s rulings improperly
limited the introduction of evidence relating to
Parish’s innocence, and that evidence was critical to the
damages issue, the award of damages cannot stand. The
excluded evidence did not impact the jury’s considera-
tion of the liability issue and that issue is not before us
on appeal, and therefore a new trial is required only as
to the damages issue. See Cobige v. City of Chicago, IL, 651
F.3d 780, 785 (7th Cir. 2011). Accordingly, the jury’s
determination of liability is affirmed, the award of dam-
ages is vacated, and the case remanded for a new trial
as to the issue of damages only. Circuit Rule 36 shall
apply on remand. Costs on appeal are to be taxed against
appellees.




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