Prosecutors Drop Charges Against Alton Logan

Prosecutors decided not to retry Alton Logan, who had served 26 years in prison for the murder of a security guard in 1982. Earlier this year attorneys Jamie Kunz and Dale Coventry advised the court that their recently deceased client - Andrew Wilson - had told them he was responsible for the murder. The attorneys kept that information confidential for years until Wilson's recent death, claiming they could not divulge it due to the attorney-client relationship. 

Lawyer Facing Contempt For Contacting Jurors

 Tess Koppelman of Fox 4 News in Kansas City is reporting that one of the defense attorneys in the Ted White case is facing potential contempt sanctions for sending jurors a questionnaire asking them about their findings in the case. The jurors recently awarded White $16 million in his civil rights suit against detective RIchard McKinley. In most jurisdictions, attorneys must obtain the court's permission before contacting jurors. 

Cook County Jury Finds In Favor of Police Detective and City in Police Shooting Lawsuit

            On Thursday, September 4, 2008 a Cook County jury found in favor of Chicago Police Detective Luke Daly and the City of Chicago in a lawsuit stemming from a 2004 police shooting.

On October 27, 2004, plaintiff David Wilson was arrested on the north side of Chicago by the police and was brought to the Area 3 police station pursuant to an arrest warrant for two rapes.  Detective Daly was not one of the officers who arrested Wilson, but was the primary detective investigating the rape cases.  The arresting officers searched plaintiff upon arrest and placed him in an interview room on a bench handcuffed to a ring on the wall.   


The next day, Detective Daly went to Area 3 to receive a Department commendation and to have photographs taken with his family.  At this time, he was informed that Wilson was in custody, and he proceed to interview him about the rapes.  Wilson initially denied the rapes, but after being presented with evidence to the contrary, including DNA evidence, he requested something to eat and a cigarette.  Detective Daly went to the lock up, made Wilson a sandwich, went back to the interview room and gave Wilson the sandwich and a cigarette.  Detective Daly uncuffed Wilson from the ring on the wall so he could use his hands to eat and smoke, leaving one handcuff attached to Wilson’s wrist and the other loose.      


Detective Daly then left the interview room to get the rape victims and arrange for a lineup.  A short time later, Detective Daly heard Wilson yell out from the interview room requesting another cigarette.  When Detective Daly opened the door to the interview room to give him a cigarette, Wilson attacked him with the dangling handcuff and a screwdriver.  Wilson apparently found the screwdriver after moving one of the tiles in the false ceiling in the interview room.  There was evidence presented at the trial that maintenance and installation work had recently been done in the interview room.  After being attacked, Detective Daly then shot Wilson three times, paralyzing him from the waist down.  


Wilson subsequently sued Detective Daly and the City of Chicago on the basis that the shooting was wilful and wanton.  He alleged that he never threatened Detective Daly and that Daly performed street justice and attempted to execute him; or alternatively, he alleged that, even if he had attacked Detective Daly, it was because Daly failed to follow proper procedures, putting Wilson in a position where he was able to attack Daly. The City argued that Daly was justified in shooting since Wilson was trying to kill him.


At the close of the eighty-day trial, Wilson asked the jury to award $28.5 million in damages.  Jurors deliberated for five hours before finding in favor of Detective Daly and the City.  


Scott Jebson and David Selmer of the Corporation Counsel's Officer represented the defendant at trial. 


Steve Muslin and Craig Sanberg of Muslin & Sanberg represented the Plaintiff

Federal Jury Awards Ted White $14 Million

A federal jury in Kansas City has awarded plaintiff Ted White $14 million in compensatory damages in his wrongful conviction trial. White is a former Lee's Summit businessman who was charged with child molestation ten years ago. White sued Lee's Summit police officer Richard McKinley, who was the lead investigator on the case. McKinley had an affair with White's wife shortly after White was arrested, but the affair was not disclosed during White's trial. McKinley wound up marrying White's wife after the two got divorced. White spent almost six years in prison before his conviction was overturned on appeal. White's attorneys convinced the jury that White was denied the right to a fair trial. White's attorneys argued that McKinley failed to disclose a diary of White's daughter - White defended the decision, stating the diary did not contain information relating to sexual abuse. The diary disappeared before White's first criminal trial. White's attorneys also argued that McKinley tainted the investigation by speaking with White's daughter before she submitted to a forensic interview. The jury also awarded $2 million in punitive damages against White. White was represented by Mike Kanovitz of the Chicago law firm of Loevy & Loevy.

Seventh Circuit Rules - Acquittal Bars a Due Process Civil Brady Claim

Today the Seventh Circuit has finally made clear that an acquittal bars a Due Process Brady Claim and has rejected the "prospective approach" to Brady analysis taken by a majority of the District Court Judges.

“The constitutional violation alleged in this case was a violation of due process for failure to turn over exculpatory/impeaching evidence to the defendant as constitutionally requireda so-called Brady violation. Brady v. Maryland, 373 U.S. 83 (1963).”

A Brady violation can be broken down into three basic elements: (1) the evidence at issue is favorable to the accused, either being exculpatory or impeaching; (2) the evidence must have been suppressed by the government, either willfully or inadvertently; and (3) there is a reasonable probability that prejudice ensuedin other words, “materiality.” 

Two Important discussions on this:

“A lying witness is certainly not a Brady violation. It is already established law that Brady does not extend so far as to provide relief in a situation where “a police officer makes a false statement to a prosecutor.” Harris v. Kuba, 486 F.3d 1010, 1017 (7th Cir. 2007) (“Harris essentially seeks an extension of Brady to provide relief if a police officer makes a false statement to a prosecutor by arguing that an officer is ‘suppressing’ evidence of the truth by making the false statement. This court has already fore- closed this extension.”); see also Sornberger v. City of Knox- 

ville, 434 F.3d 1006, 1029 (7th Cir. 2006) (“The Constitution does not require that police testify truthfully; rather the constitutional rule is that the defendant is entitled to a trial that will enable jurors to determine where the truth lies.” (citations omitted)). 

Moreover, both Hunter and Dominguez were accessible to the defense for the hearing on the motion to suppress the identification in the criminal case. It is Carvajal’s responsibility to probe the witnesses and investigate their versions of the relevant events. There was nothing preventing Carvajal from discovering and drawing out this discrepancy between the officers’ stories during the suppression hearing. 


On the Kennelly Prospective Approach:

The district court’s “prospective” test does not seem to accurately capture what Brady protects and misunderstands  the “materiality” requirement in a true Brady violation.

[T]he term “Brady violation” is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidencethat is, to any suppression of so-called “Brady material”although strictly speaking, there is never a real “Brady violation” unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. 


 “[T]he question is whether the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id. at 289. Therefore, while a prosecutor has to make decisions about what is Brady material prospectively, so to speak, a true constitutional violation is measured with the outcome in mind.2


We are equally doubtful, given the considerations in deciding whether to recognize a Bivens cause of action that such an action exists for a Brady violation. Most specifically it seems that there is an “alternative, existing process for protecting the interest”: namely, the disclosure obligation put on the prosecution under Brady itself protects the defendant’s interest in a fair trial, and, the fact that if a criminal defendant does establish a Brady violation he already has a remedy in getting his conviction overturned (of course, an acquittal from the outset, as the defendant received here, is even better). 

Key Footnote:

The plaintiff, as well as Illinois district judges in similar cases, pointed to Carey v. Piphus, 435 U.S. 247 (1978), in support. We find this reliance misplaced. In addressing a high school stu- dent’s suspension without a hearing, the Court concluded that “the denial of procedural due process should be actionable for nominal damages without proof of actual injury.” Id. at 266. In doing so, the Court was focusing on fair process and was not holding that there was any actual damage or harm resulting from the insufficient process. Therefore, there is not a parallel from Carey’s holding to the materiality/prejudice requirement of Brady, which requires more in order to establish the constitutional violation at issue. Additionally, unlike the instant case, Carey was a § 1983 action.

Carvajal v. Dominquez

Judge Hibbler Rules No Constitutional Violation in Loevy's Car Accident Case

"On May 19, 2004, 8 year old Gregory Jones and 11 sufficent year old Dantondra Mitchell were struck by an unmarked police car.  Both children were gravely injured and Jones died the next day.  The plaintiffs - parents of the children - allege the officers' reckless driving deprived the victims of their substantive due process rights.  In response, the officers moved for summary judgment and assert vehicular accidents cannot support a finding of constitutional liability. " Judge Hibbler, citing US Supreme Court and Seventh Circuit cases, agreed.  

The Court explained:
"The threshold question of any substantive due process challenge is whether the behavior of a state actor 'is so egregious, so outrageous that it may fairly be said to shock the contemporary conscience.'"
"Ultimately the [Supreme Court] held the police officers' conduct did not deprive the plaintiff of substantive due process: 'high speed chases with no intent to not give rise to liability under the Fourteenth Amendment" ...As there was no time for reflection or deliberation it cannot be said the officer's conduct was deliberately indifferent.
The Court also discussed the relevant Seventh Case on point, Hill v. Schobe:
In Hill, the officer - who was not chasing a suspect or responding to an emergency call - was driving over the speed limit, and failed to turn on his lights or sirens even though it was after midnight.  Subsequently, the officer ran a red light and struck and killed Robert Hill.  The Seventh Circuit held, "the officer must have knowledge of the danger so the court can "infer he intended to inflict the injury" - He must have known it "was imminent but consciously and culpably refused to prevent it." The key word is accident - "if the vehicular collision was accidental - there is no constitutional liability. "
As such, summary judgment was granted in favor of defendants.  
Jon Loevy, Arthur Loevy, Douglas Shreffler, Amanda Antholt, Michael Kanovitz, Samantha Liskow, Loevy & Loevy for plaintiffs 
Liza Franklin, Steve Borkan, Stellato & Schwatrz, George John Yamin, Jr., Jordan Marsh, Scott Jebson, City of Chicago , for Defendants.

Jones v. City of Chicago 04 C 3742




Judge Kendall Rejects Plaintiff's "Class of One" Equal Protection Claim

Plaintiff was arrested on February 18, 2005 and charged with unlawful use of a weapon... According to plaintiff, "Holden, he was frightened when a male police officer pulled up behind him in a police car while he was urinating in an alley and yelled a racial epithet at him. He ran, scaled two gates, ran through a gangway and jumped onto Pulaski Avenue where he surrendered to two male police officers who arrived in a second marked police car.  Plaintiff further claims, "[o]ne of the two arresting officers grabbed Holden's leg and “snapped it in half,” making an audible noise, while Holden was lying on the sidewalk. The officer then threw him into the open door of the police car, slammed the car door against his head several times and punched his injured leg and eye.  Plaintiff claims that the officers "decided to falsely accuse him of a robbery."  The Officers deny any force and claim they "apprehended Holden and transported him to the police station."
At issue on Summary Judgment was "Holden's claim that he was treated differently than other individuals who have had interaction with police officers. However, at his deposition, he could not identify another person treated differently. Holden, however, suggests that some of the actions taken against him and statements made by the officers to him establish differential treatment.
Specifically, "Holden argues that he suffered discrimination as a “class of one” in violation of the Equal Protection Clause. He asserts that he was discriminated against because the officers abused him, did not send the allegedly recovered weapon for fingerprinting, and did not file a tactical report even though Department regulations require that weapons be fingerprinted and officers file tactical reports when they use force."
The Court rejected this claim and ruled: 
"To succeed on a "class of one" equal protection claim, the plaintiff must prove that: 1) he was intentionally treated differently from other individuals similarly situated; and 2) there was no rational basis for the difference in treatment or the cause of the differential treatment was “totally illegitimate animus” by the defendant." 
The Defense argued "that this case is ill-suited to Equal Protection analysis and that in any case, Holden has failed to adequately demonstrate that similarly situated individuals were treated differently. Generally, whether individuals are similarly situated is a question of fact for the jury, but courts may grant summary judgment when no reasonable jury could find that this requirement has been met.  To meet the similarly situated requirement, plaintiffs must prove “that they were treated differently than someone who is prima facie identical in all relevant respects.”
The Court held that "[s]pecific evidence of similarly situated individuals is necessary in class of one claims because individuals must be compared on a very detailed level to determine if they are in fact prima facie identical."  As such, the Court granted defendants' partial motion for summary judgment.  
Abbas Badruddin Merchant, Amanda Sunshine Yarusso, Blake Wolfe Horwitz, Horwitz, Richardson & Baker LLC, Chicago, IL, for Plaintiff.
Christopher A. Wallace, Liza Marie Franklin, Thomas Howard Freitag, George John Yamin, Jr., Thomas Jon Aumann, City of Chicago , for Defendant.

Holden v. A. Carey 2008 WL 4006753 N.D.Ill.,2008 (Kendall, J).