Inside Kevin Fox’s Appellate Court Decision

The sexual assault & murder of three year-old Riley Fox followed by the subsequent arrest and attempted prosecution of her father, Kevin Fox, for the her murder was tragic.  Last week the United States Court of Appeals of the Seventh Circuit handed down their decision in the appeal of Kevin & Melissa (Kevin’s wife and Riley’s mother) Fox’s civil suit regarding the interrogation, arrest, and subsequent prosecution of Kevin.

Read about the case here & here.

In reading this appeal you are instantly hit with the degree to which the officers involved had made a baseless decision to focus on Kevin either out of incompetence or political pressure.  [This appeal does not include the role of the elected prosecutor, which you can read about here.]  The officers clearly ignored some evidence and elevated other evidence that obviously had nothing to do with the crime they were investigating.   Simply put, these officers had no probable cause to arrest Kevin and killed a FBI DNA test before it could be done to make sure that the results would not contradict the false confession they were able to coerce from Kevin.  There are differing accounts from the press and this decision about who exactly stopped the FBI DNA test.  Some press alleged it was stopped by the then Will County State’s Attorney was Jeff Tomczak.  I think only a complete review of the testimony and depositions in this case would clarify this detail.

Will County Sheriff's OfficeThe original civil suit brought in a judgment of $15.5 million dollars.  After striking some of the verdict and other procedural reductions the verdict that was appealed was $12.2 million.  What follows is an analysis of the appellate court decision.  You can download a copy of the decision and read it for yourself, which I highly recommend, below.

“On June 22, 2004, 16 days after Riley’s body was discovered, Swearengen asked the Foxes to take Tyler to a facility that he said offered free counseling. At the facility they met with Mary Jane Pluth, who introduced herself as a counselor and sought the Foxes’ permission to ask Tyler if he woke up at all on the night of Riley’s disappearance.”

They gave their permission and Kevin signed a consent form, which he did not read. If he had, he would have learned that Pluth’s plan was to conduct a videotaped victim sensitive interview (VSI), which Swearengen and another Will County detective, Brad Wachtl, would watch from another room. The goal of a VSI is to extract helpful information from a vulnerable witness to assist in a criminal investigation.

The jury was allowed to watch the video of Tyler’s VSI.  The video shows that Pluth asked Tyler more than 20 times and in myriad ways whether Kevin had left the house on the night of Riley’s disappearance. Tyler answered “no” repetitively, although he became more and more upset and withdrawn over the course of the

interview and ended up giving some answers that were equivocal and contradictory. The video ends with six-year-old Tyler crying and asking for his parents. An expert witness called by the Foxes testified at trial that no useful information could be gained from that interview, and Pluth conceded as much at trial.”   Page. 10-11

Here we have detectives and the “counselor” conspiring to interview a minor child without the informed consent of the adult parents.  This practice is reprehensible and a clear sign of the abusive nature of the investigation.  The facts in this case prove that this was a fishing expedition based on no evidence.  If the parents refuse the interview after they are informed then the cops should go get a court order, not lie to the parents to get it accomplished.

“Around 8:10 p.m., about an hour after he arrived at the station, Swearengen accused Kevin of killing Riley. Kevin was outraged; he started crying, jumped from his seat, yelled that he would never do that, and tried to push his way past the officers to leave. Wachtl intervened and told him to “sit your ass down.” Kevin did so.”  Page 12

Sorry ladies and gentlemen, but this is the ball game.  Clearly the detectives did not care that Kevin was fully within his rights to leave, unless he was under arrest.  Although they testified he was not under arrest, you will see later this refusal to let him leave constituted an arrest.  These detectives knew exactly what they were doing when they walked Kevin & Melissa through 3 locked doors before they were separated.  They were not going to let Kevin or Melissa leave until they got their confession.  Not exactly the finest hour for Illinois law enforcement but then again, sadly, not the lowest either. Kevin Fox

Meanwhile, back in the waiting room, Melissa grew impatient when three hours passed and Guilfoyle didn’t appear as promised. She began kicking on the locked door and yelling for someone to come and talk to her.  Around 11 p.m. Swearengen appeared and took her to an office where Wachtl was waiting. They told her that they thought Kevin killed Riley. They told Melissa, for the first time, that Riley had been sexually assaulted.  They said they thought Kevin killed Riley by accident and then tried to make it look like the motive was sexual assault.  Page 13

Here they kept Melissa isolated in a locked room for three hours without her consent.  When they finally talked to her, they dropped a few bombs on a grieving mother and in the process it seems like they are driving a wedge between the parents.

“Around 1:30 a.m., Kevin took a polygraph examination, and the examiner immediately told him that the results showed he was not being truthful. (At trial, an expert witness testified that the polygraph results were fabricated.)  Kevin could not believe it. Officers brought Melissa into the polygraph room, and the polygraph examiner told her Kevin had failed. Melissa turned to Kevin, told him she loved him, that she believed him, and that she was behind him all the way.

According to the Foxes, Hayes was outside the door when Melissa made those comments, and as soon as she did, he went ballistic. He screamed to the officers to “get her the fuck out of that room right now,” and a detective started pulling Melissa out of the room by the arm while Hayes screamed “you’re a fucking murderer” at Kevin. Hayes then met Melissa in the doorway and screamed in her face, “Your husband’s a fucking liar, and he’s a fucking murderer. He never loved you or your fucking daughter, and he killed her, and you need to learn to fucking get over it.” Melissa said that she was terrified and felt like Hayes had “crushed the spirit out of her.”  Page 14

This is a clear example of an unprofessional investigation:  isolating the parents, conspiring to fabricate evidence, and using highly abusive language towards the parents of a murdered child for whom they do not have a scrap of evidence to incriminate them.  I wonder if these detectives realized that this type of behavior will increase the likelihood of eliciting false confessions.  If so, we might have some additional proof that this was done on purpose.

“Shortly after Kevin was jailed, Hayes called the FBI and told them to stop testing the DNA evidence on Riley’s case. Eight months later, the defense team finally got the DNA evidence to a private lab, which tested it within days. The results showed with 100 percent certainty that Kevin was not the donor of the DNA found on a vaginal swab and on the duct tape on Riley’s mouth. On June 17, 2005, the day after the DNA test results were released, the prosecutor dropped the charges and Kevin was released from custody. He had spent 243 days in jail.”  Page 17

Now this seems to be somewhat different from the original story that hit the press back when Kevin was released that said the prosecutor actually called the FBI to stop the test.  Either way, the only reason to stop this test is to guarantee that no contradictory evidence will be available to prove the confession was false.  As it turns out, Kevin talked about how his confession was false from the moment he was allowed to see a lawyer.  Any ethical criminal justice official would have just allowed the FBI to conduct the test and confirm the confessions.  This was not done until after an election of a new prosecutor months down the road.  Why?  Good question.

“It is well-established that an arrest without probable cause violates the Fourth Amendment, see Devenpeck v. Alford, 543 U.S. 146, 152 (2004), so the question is whether the evidence supports the jury’s finding that the officers arrested Kevin without probable cause.  To answer this question we must identify the earliest time at which the jury reasonably could have found that Kevin was under arrest. See United States v. Reed, 443 F.3d 600, 602-03 (7th Cir. 2006). An arrest occurs when, “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Tyler, 512 F.3d 405, 409-10 (7th Cir. 2008) (citations omitted). The Foxes contend that the arrest occurred soon after they arrived at the station, around 8:10 p.m. That is the moment just after Swearengen and Wachtl accused Kevin of killing Riley when Kevin stood up and tried to leave but was told by Wachtl to sit his “ass down.”

The defendants argue that Kevin was not under arrest at this point because he did not ask the officers if he could leave. See Hall v. Bates, 508 F.3d 854, 857 (7th Cir.2007). But whether a person asks permission to leave is but one factor among many in the arrest analysis. The other factors include whether the police inform a person that he is suspected of a crime, whether the person’s movement is limited, whether the officers engage in coercive conduct suggesting that cooperation is required, and whether the person is in a private location. Tyler, 512 F.3d at 410. The majority of the relevant arrest factors fall in Kevin’s favor. At the moment in question, Swearengen and Wachtl accused Kevin of killing Riley. Kevin attempted to leave the interrogation room, but Wachtl prevented him from doing so in no uncertain terms. Under these circumstances, a reasonable person certainly would not think himself free to leave. Actions do speak louder than words. Here, Kevin tried to leave the room and was blocked; he was not required to reiterate his request verbally to establish his seizure for Fourth Amendment purposes. Accordingly, a reasonable jury could conclude that Kevin was arrested at 8:10 p.m., early on during what was to be a very long night of interrogation.”  Pages: 19-20

Riley Fox Wanted PosterInteresting interpretation here from the officers.  You get up to leave an interrogation and you are prevented from doing so.  This does not mean you are not free to leave all you need to do is ask.  If you fail to ask then we can prevent you from leaving without any repercussions.  Ridiculous.  Remember that the parents were walking into an area in the station that they passed through three locked doors.  During much of this time Melissa is also locked in to a room and isolated from calling a lawyer or talking to Kevin.  This is a textbook example of a coercive interrogation.

“The defendants rely on disputed facts for another somewhat bizarre factor in their probable cause analysis; they contend that the officers reasonably believed that Riley’s injuries “were not consistent with a sexual predator having killed and sexually assaulted her,” thus supporting their theory that Kevin was involved. Swearengen and Sergeant Michael Markowski, who attended the autopsy, testified that the pathologist stated that Riley’s sexual injuries were minor. The defendants argue that Riley’s “minor” injuries, together with the relatively small amount of duct tape found on the body and what they say are a lack of defensive wounds, were inconsistent with the involvement of a sexual predator because, according to them, the trauma was insufficiently brutal. But at trial the pathologist flatly denied ever characterizing Riley’s sexual injuries as minor. He testified that her injuries would have been severe for an adult woman and were absolutely at the top of the scale for a small child.

The autopsy also revealed wounds on Riley’s legs and head which, according to another expert, were defensive. Given this testimony, the jury did not have to believe the officers when they testified that they thought the injuries were “minor.” And even absent the conflict, probable cause must rest on reasonable belief, see Phelan v. Vill. of Lyons, 531 F.3d 484, 489 (7th Cir. 2008), and here the officers’ theory is absolutely unreasonable. The officers knew that Riley, a three-year-old child, had lacerations and bruises in her vagina, that she had been bound with duct tape, and then, following the sexual assault, left for dead in the creek. Under those circumstances it was unreasonable for them to rule out a sexual predator as her attacker. Probable cause may be a loose concept, but it leaves no room for the absurd.”  Page 22-23

I think absurd is a pretty good characterization for the leaps of logic these officers took in an effort to argue that they had probable cause for an arrest.

“Kevin told the officers that he had felt “horny” that evening and had masturbated into a condom. The district court excluded these added details as unduly prejudicial, a ruling that the defendants now challenge on the ground that Kevin’s sexual mood was an important factor in their probable cause determination.  But even the defendants’ own expert witness explained in his offer of proof what should have been obvious to any reasonable police officer: that just “because a man watches adult pornography and masturbates,” does not mean that “he is likely to sexually molest his three-yearold daughter.” We do not second-guess the judgment of the officers lightly, but courts have an obligation to ensure that the reasons supporting an arrest are objectively reasonable. See Devenpeck, 543 U.S. at 152-53; Sornberger, 434 F.3d at 1014-15. To the extent they ask us to conclude that Kevin’s admission to watching an adult video and masturbating lends support to their decision to arrest him for killing his daughter, that suggestion strays beyond the boundaries of reasonableness.”  Page 28

I did not know that every man that masturbates is also now likely to sexually assault and murder his daughter.  The police are relying on one cop’s assumption that the sexual assault was staged.  Is there some unique logic at play here or is it just me?

“Finally (with respect to the evidentiary arguments, that is) the defendants argue that the district court erroneously excluded the videotape memorializing Kevin’s “confession.” The video was the subject of repeated and prolonged side bars during which the defendants argued that it demonstrates that they had probable cause to arrest Kevin. That argument goes out the window with our conclusion that a reasonable jury could have found that the arrest occurred shortly after 8 p.m., 11 hours before the video was made. Recognizing that limitation, on appeal the defendants focus on an argument that they raised below, if only cursorily: that the video is relevant to Kevin’s malicious prosecution and IIED claims.  The defendants argue that viewing the video would have helped the jury decide whether the defendants coerced his confession and whether he was showing signs of severe distress immediately following the alleged coercion. But there are no allegations of physical harm that the video could verify, and all of the allegations of coercion stem from events leading up to the video—events that the defendants chose not to record. Most importantly, the video represents just 23 of the 870 minutes or so of Kevin’s interrogation, and thus cannot provide a complete picture of either the interrogation itself or Kevin’s level of distress. Under those circumstances, we cannot say that the court abused its discretion in concluding that the video’s prejudicial effect and potential for confusing the jury outweighed its probative value with respect to the issue of coercion or Kevin’s demeanor following the interrogation.”  Page 28

23 minutes out of 870 minutes – that should give you a good feeling for how the entire fourteen and half hour interrogation ran. This is a clear example of why just electronic recording of a confession is not itself much of a safeguard against false confessions.

In the end, the judgment was reduced to $8,166,000 (for a variety of legal reasons, which I will leave you to read about on your own). Is this enough? I would say not by a long shot.   What price tag can be put on the multiple levels of victimization that occurred to Kevin, Melissa, and their young son?  They are too numerous to list here but just imagine what it would do to a family to have their daughter / sister raped and murdered, then add into it a false arrest, coerced confession, and subsequent prosecution of the father of the family for that crime.  Unimaginable?  Not in Illinois.  This is just what happens in our criminal justice system here.

Tracy has nearly two decades of experience researching and working within criminal justice systems. When Tracy began pursuing a career dedicate to system reform, he found that no single organization existed to promote evidence-based discussions among law enforcement agencies and the communities they serve. Recognizing that citizens in Chicago deserved the right to demand transparency in their criminal justice system, Siska established the Chicago Justice Project. He received his Master of Arts degree in Criminal Justice at the University of Illinois at Chicago.

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