In police abuse suits, city secrecy has costs
Its lawyers deny obstruction but vow reform as money, trust are lost.
By: Stacy St. Clair, Jeff Coen & Jennifer Smith Richards, Chicago Tribune: June 26th, 2016
Mayor Rahm Emanuel’s administration routinely fights turning over information in federal civil rights lawsuits against Chicago police officers, often leaving a judge to step in and order the city to disclose potential evidence, a Tribune investigation has found.
Although typically not the type of issue that draws attention outside legal circles, the city’s handling of these lawsuits speaks to the police accountability issues that have intensified in recent months and have cost taxpayers tens of millions of dollars. Whether by bureaucratic negligence or stonewalling by city agencies, the Law Department places the interests of the Police Department and its officers above the public good, according to plaintiffs’ lawyers and even some former city attorneys.
It’s an implicit policy, those critics say, that corrodes an already weakened relationship between the city and the people it serves.
A Tribune analysis of nearly 450 lawsuits alleging police misconduct since Emanuel took office found that in more than 19 percent of the cases — nearly 1 in every 5 — a federal judge ordered the city to turn over police reports, personnel files or other potential evidence it withheld from plaintiffs.
In cases involving allegations of wrongful convictions or serious excessive force such as police shootings, where the financial stakes are the highest and the threat to the city’s image are the most serious, the frequency jumped to 27 percent, more than 1 in 4 cases.
And in five cases, the city’s conduct was found to be so inappropriate that federal judges took the unusual step of handing down sanctions. Those sanctions led a judge in two cases to take the even rarer step of throwing out jury verdicts that had favored the city and ordering new trials.
“The (Law Department) believes it has to support the police whether the police are right or wrong,” said Irene Dymkar, a Chicago attorney who represents plaintiffs in civil rights cases. “But if you work for the city, you have an obligation to the public to look at things objectively. You have to protect the truth.”
To be sure, the judicial system depends upon an honest exchange of evidence before trial. The process — known as discovery — allows the two sides in a lawsuit to uncover relevant facts through documents, sworn depositions and other disclosures. When the process breaks down, plaintiffs can find themselves at a disadvantage, their lawyers uncertain they are working with all of the evidence.
Stephen Patton, Emanuel’s hand-picked corporation counsel, rejected any implication of wrongdoing among his staff of about 45 attorneys in the Federal Civil Rights Litigation Division, which handles most lawsuits involving police. In five hours of interviews, he said that his attorneys are vigorous advocates for their clients, but said they do not cross the line into what the courts term misconduct.
“The pattern shows absolutely an absence of any kind of discovery misconduct or abuse, and that if there are patterns it is the kinds of things that happen all the time in litigation,” Patton said.
“That’s part of representing clients’ interests. It’s part of what lawyers do. It doesn’t mean anybody is withholding something or not acting in good faith.”
While Patton disagreed that the Tribune’s findings reflect a systemic issue, he acknowledged that he had identified problems and was taking steps to address them. What’s more, in January, Emanuel asked former U.S. Attorney Dan Webb to examine how the Law Department deals with civil rights claims, and Patton said his office is fully cooperating. Patton said every lawyer in the division had been interviewed by Webb’s team, and he was aware of some 60 cases under review.
The reforms include setting up an in-house document management system to ensure discovery can be better tracked, new policies requiring attorneys to double and triple check which records have been turned over, and hiring outside lawyers to represent individual officers in cases involving the most egregious misconduct allegations. Perhaps most significantly, he said he will drastically reduce the Police Department’s role in collecting documents needed for litigation.
In police misconduct cases, the rules typically require the city to provide plaintiffs with arrest reports, radio transmissions, crime scene videos, witness interviews and other evidence. Plaintiffs and the city can reach informal agreements as to which records to trade, or they can submit formal requests for production. If they cannot agree on which evidence to exchange, they can ask a judge to settle the dispute. They can only take that step, however, after engaging in a “good-faith” effort to reach an agreement.
In 2013, for example, U.S. Judge Milton Shadur ordered the city to turn over documents to John Volland, who had filed a lawsuit claiming two officers beat him during a traffic stop in 2012. Volland’s attorneys wanted, among other things, records involving complaints against the officers.
When Shadur expressed his displeasure with how long the city was taking to turn over records, assistant corporation counsel Brendan Moore blamed the Police Department for the delay. He suggested the Law Department was just “the middle man” between the plaintiff and the police — an excuse that Shadur suggested shirked the Law Department’s responsibility.
“You can’t say, well, I am the… messenger, don’t execute me,” Shadur said during a September 2013 hearing.
Shadur gave the city two weeks to turn over the records. The city provided some of the requested records by the deadline — but not all of them — so Volland’s attorneys asked Shadur to intervene a second time.
The judge sanctioned the city for not turning over the documents in a timely manner. The city had to pay a relatively modest amount, $5,175 — the attorneys’ fees associated with filing the request. But the fact that there was a sanction at all was rare.
In the end, Shadur said, plaintiffs are at a financial disadvantage when they have to fight for records because it costs the attorneys time and money.
“I just don’t see the fairness of having a party being required to expend funds for purposes of getting discovery that is appropriate in the ordinary course,” Shadur said, according to a December 2013 court transcript.
Patton acknowledged that having to deal with the Police Department’s legal staff has long been an issue for his office, but he said it should be mitigated by his lawyers collecting documents themselves. After a recent change of police leadership, Patton said there was less resistance to giving his assistants access to police records.
“We wear the jacket in the courts,” Patton said, “so give us the authority to fulfill the responsibility.”
The Police Department has agreed to give city lawyers access to its records “to ensure efficiency,” a spokesman said. Police Superintendent Eddie Johnson on June 13 issued a directive ordering all officers to cooperate with the new policy, more than two weeks after the Tribune presented its findings to the city.
The prompt exchange of documents is considered so sacrosanct, and so crucial to unearthing the truth, a Law Department policy manual includes a “Golden Rule on Discovery.”
“When in doubt whether to produce a document, your decision should almost always be to disclose the document,” the manual states. “It is better to overproduce than underproduce. If you have a question whether or not to produce a document, speak to your supervisor. If you are leaning towards a belief that the rules don’t require you to produce a document, picture yourself explaining your position in front of the judge and make sure you are on solid ground under the rules to not produce a document. Don’t play semantic games in an attempt not to produce a document.”
Yet the Tribune found repeated instances in which the city resisted turning over even the most basic documents or did little to force the cooperation of the Police Department or its other municipal agencies, leading to legal skirmishes that sometimes dragged on for years.
Time and again, the city blamed its own agencies as it tried to explain incomplete or missing records. Though they all fall under Emanuel’s control, records show the Law Department often has difficulty obtaining cooperation from the Police Department and the Independent Police Review Authority, the city-run agency that investigates police-involved shootings and other allegations of excessive force.
The Police Department often resists releasing personnel records without a judge’s order, though it is well established that plaintiffs are due that material. IPRA, meanwhile, sometimes opposes the release of videos and documents that it deems sensitive to investigations.
The city also routinely fights releasing records from officers’ complaint histories, a decision Patton described as often a strategic one because judges typically settle the dispute by giving plaintiffs fewer complaints than they requested but more than the city wanted to turn over.
The Law Department’s practices rankle plaintiff’s lawyers, including several attorneys who have been interviewed by Webb’s team. They say they believe Patton’s office tacitly supports the so-called code of silence that protects police by allowing other departments to call the shots.
When evidence is not turned over, they said in Tribune interviews, it can be difficult to tell if city lawyers have purposely flouted the rules of discovery or have been stymied by the Police Department or IPRA — or if the lawyers are merely hiding behind those agencies.
In those cases, their only recourse is to fight the city’s denials with motions to compel, formal requests that ask a judge to order another party to produce evidence.
“I don’t think the Law Department intentionally tries to hide evidence,” said plaintiff’s attorney Antonio Romanucci, who has spent more than four years waging a discovery battle in a lawsuit involving a shooting with an off-duty officer’s gun. “But they don’t do their due diligence and demand that discoverable items get turned over. When they turn a blind eye, they become part of the blue shield that protects officers.”
In one case, city lawyers stood by as IPRA lawyers refused to turn over records involving Randy Dorsey Jr.’s claim that he had been punched in the mouth by a Chicago police officer at a gas station in March 2012. IPRA said that sharing the file, which included video of the incident, would compromise its investigation of the officers, according to court documents.
But public records suggest there wasn’t much of an investigation. IPRA acknowledged that it had not interviewed the officers or other witnesses as of June 2013, more than a year after Dorsey had filed his complaint.
U.S. District Judge Ronald Guzman sided with Dorsey, in part, and ordered IPRA to immediately turn over a portion of the Dorsey file, including the video.
The city settled the case shortly after for $37,000.
“When it helps the city, things get turned over to us quickly,” said attorney Ed Fox, who represented Dorsey. “When it supports the other side, IPRA and the law and police departments become obstructionists. And the city is OK with that.”
Patton said IPRA often is represented by its own counsel, so his department can do only so much to influence what it discloses. But he acknowledged his department’s policy is to err on the side of disclosure and not tolerate discovery violations by any city entity, including IPRA.
A spokeswoman for IPRA, which has new leadership, said she could not explain how cases were handled in the past. Under new Chief Administrator Sharon Fairley, the decision on what to release in civil rights cases is made on a case-by-case basis by Fairley, her general counsel and her chief investigators, spokeswoman Mia Sissac said.
The Tribune investigation comes as the Emanuel administration continues to reel from disclosures about the city’s troubled oversight of its Police Department, much of it sparked by the November release of a video showing Officer Jason Van Dyke shooting Laquan McDonald 16 times in 2014.
The Law Department was pulled into the fray in January, when U.S. District Judge Edmond Chang sanctioned one city attorney for intentionally concealing evidence in a fatal police shooting case and another for failing to make a reasonable effort to locate key records.
Less than a week later, Emanuel asked Webb to begin his review.
Webb’s findings have not yet been released, but the Tribune found a Law Department staff carrying a heavy workload and receiving minimal training on proper discovery practices until after Chang’s sanctions. City officials said a senior counsel typically juggles about two dozen active cases at any given moment and many attorneys had delegated discovery responsibilities to paralegals or the Police Department’s office of legal affairs to keep themselves from drowning in paperwork.
In anticipation of Webb’s report, Patton has ordered the division lawyers to attend a half-dozen discovery and ethics-related training sessions since January, with more scheduled. He also has added three new attorney positions to cut the workload and has hired more paralegals.
“As I said when we announced Dan Webb’s review of that division earlier this year, we intended to treat this as an opportunity to improve policies and procedures, provide additional training and commit additional resources, and that is exactly what we have done,” Patton said.
The Tribune spoke to about a dozen present and former city attorneys, most of whom described a department that faces another challenge: serving taxpayers while representing officers.
“The attorneys in (the police litigation division) believe they represent the individual police officer being sued, and they are not wrong,” said former assistant corporation counsel Marcelle LeCompte, who also spent time as a Cook County prosecutor and is now a plaintiff’s lawyer. “The problem is they are so blinded by the white hat syndrome that they think getting the officer out of liability is the same as representing the city and the public good.”
As part of its investigation, the Tribune reviewed 445 police-related lawsuits filed in federal court in which discovery was conducted during the mayor’s tenure and while the Federal Civil Rights Litigation Division has been under Patton’s leadership.
About 70 percent of the reviewed cases were handled by members of the unit. The other 30 percent were given to outside lawyers, whom the city pays an hourly rate of up to $295.
In the lawsuits reviewed by the Tribune, plaintiffs’ attorneys raised discovery issues in 109 cases, or about 25 percent of the time. Those concerns were upheld by judges, at least in part, 75 percent of the time.
In many cases, the judges only partially granted the requests, meaning the plaintiffs received only some of the records they wanted. Patton said that proves his office was at least partly right to push back.
The city also files its share of motions to compel, though not as frequently as the plaintiffs.
The problems did not begin with Emanuel’s administration. The Tribune identified dozens of discovery issues toward the end of Mayor Richard M. Daley’s last term, as he bequeathed Emanuel a Law Department that allowed agencies to shape what records would be turned over in civil rights cases.
Plaintiff’s attorneys say the evidence exchange has improved somewhat under Emanuel and Patton, especially since the McDonald video became public. Yet they remain concerned about the city’s overall approach to civil rights lawsuits.
“These lawyers have been getting away with this stuff and pleading ignorance for years,” said plaintiff’s attorney Jared Kosoglad. “They treat it all like a game, but it’s not a game to the citizens of Chicago.”
Added plaintiff’s attorney Jon Loevy: “They have set up a system that’s designed not to work.”
While gamesmanship sometimes is involved in discovery conflicts, legal experts say such tactics can tarnish the judicial process and undermine the city’s credibility. The city has been fined five times for discovery violations since Emanuel took office in 2011, though one of those cases straddled the Daley and Emanuel administrations.
By comparison, during Daley’s last decade in office, his Law Department was sanctioned eight times for discovery violations.
“If you have five sanctions in five years, it suggests you have an institutional problem,” said Suja Thomas, a professor at the University of Illinois Law School and an expert in discovery issues.
Patton disagreed with that analysis, calling five cases out of the hundreds of cases handled by his office a low number, and saying the sanctions were for “usually relatively insignificant things.”
The city, however, has received two sanctions in the past year that prompted two new trials and ultimately could end up costing the city hundreds of thousands of dollars more in fines. The first sanction stemmed from a 2007 lawsuit filed by a local art teacher, Jonathan Hadnott, who accused police of stopping him on the street for no reason and, after he showed them his firearm ownership card as identification, of illegally searching his mother’s home to seize his gun.
The city’s defense of the officers, who denied searching the home, depended on a complicated timeline; the officers, the city argued, could not have searched the house because they never had the time to stop Hadnott, run his name through a database to determine if he had an arrest warrant, search the home, and then return to the station at the time shown on records. The database run alone, they said, could have taken 20 minutes.
After Hadnott’s case ended in a partially hung jury in June 2011, with Hadnott losing all but one count, his lawyers began preparing for a retrial on the remaining count. Three years later, city attorneys said they “rediscovered” a coded log that showed the database search was done in 11 seconds, rather than 20 minutes, upending the timeline as well as a central argument the city’s lawyers used to win the case.
In court documents, the city called the error “inadvertent,” but acknowledged it likely had the log since before the first trial. In court documents, it described the log as “gobbledygook” that would be difficult for the Law Department’s “untrained eyes” to decipher.
“It was like a slap in the face,” Hadnott said of learning about the log. “I was just an average citizen trying to make a grievance against the police and then this happened. … A regular Joe shouldn’t have to go through that kind of insult.”
Although some of the city’s conduct occurred before Emanuel took office in the case, and Patton said the Emanuel administration should not be blamed, Chang ruled that the discovery violation ran through the 2011 trial, shortly after Emanuel took office. Eventually, Hadnott and the city settled the lawsuit for $200,000. The city paid an additional $350,000 for its discovery violations — more than the settlement itself.
The city attorneys involved in the violation were not disciplined after the violation was discovered.
Patton said steps have been taken to ensure such a mistake could not happen again, including a new policy requiring evidence to be scanned and logged before it gets placed in a case file.
The Tribune found that, in the 362 cases where a judge found no discovery problems, the city paid more than $56.6 million in damages and legal fees. In the 83 cases where a judge had to force the city to turn over evidence, the city’s bill was more than $59 million, suggesting the city’s resistance came in the cases where the financial peril was greatest.
That total does not include the hundreds of thousands of dollars the city stands to be fined for sanctions in the Darius Pinex case, an excessive force lawsuit stemming from a fatal shooting in 2011.
In January, Chang sanctioned a city attorney for intentionally withholding evidence and chastised the Law Department’s sloppy discovery practices. He has ordered the city to pay attorneys fees, though the amount has not yet been determined.
In a bruising ruling, Chang ordered a new trial and detailed significant flaws in how the Law Department responds to civil rights cases. He described a byzantine system in which city attorneys don’t understand how police records are kept — and make little effort to find out.
The ruling reversed a March 2015 decision in which a federal jury found in favor of Officers Raoul Mosqueda and Gildardo Sierra, concluding they were justified in killing Pinex during a January 2011 traffic stop on Chicago’s South Side. Both officers testified at trial that they had pulled over Pinex’s Oldsmobile because it was similar to a description they’d heard over their police radios of a car wanted in an earlier shooting.
Before the lawsuit was filed, a Law Department paralegal asked the city’s Office of Emergency Management and Communications to save radio calls from the night of the shooting. OEMC provided a call about a pursuit in Zone 8, but did not turn over any such audio from Zone 6, where the officers were working, court records show.
During the middle of the trial, though, city attorney Jordan Marsh told Chang he had learned a week before trial that 30 minutes of Zone 6 audio had been sent to a police sergeant in 2011. Marsh said he did not know what was on the recording and had never possessed it.
But when it was turned over, the Zone 6 audio described a different Oldsmobile Aurora and did not mention a shooting.
After months of post-trial discovery, Chang found Marsh “intentionally concealed” knowledge of the radio call and misled the court about it.
“The federal court system cannot achieve its goal of fair, just and accurate judgments without requiring that good faith be instilled into the discovery decision-making of every attorney,” Chang wrote.
Records show Marsh was not disciplined by his supervisors after acknowledging the radio call’s existence in court — a period of nine months in which he was the lead lawyer in two major civil rights trials. He resigned his position on the day Chang granted Pinex’s family a new trial and attorneys’ fees.
Patton said he had outside lawyers review about 60 cases handled by Marsh and other attorneys involved in the Pinex and Hadnott cases. So far, the cases all have received a “clean bill of health” on discovery matters, he said.
Marsh, now in private practice, declined to comment.
In the Pinex case, Chang also found that Marsh’s co-counsel, city attorney Thomas Aumann, had failed to make a reasonable effort to find the dispatch recording during the discovery process. Aumann signed a document stating that all evidence had been turned over to the plaintiffs, but court records show he only looked for documents in the Law Department’s file. He didn’t know how the documents were compiled, where they came from or even who gathered them, Chang wrote.
Aumann, who left the Law Department shortly after the Pinex trial, could not be reached for comment.
Gloria Pinex, who filed the lawsuit on behalf of her son’s estate, said she was stunned to learn of the Law Department’s conduct.
“I knew the police officers protected each other. But I didn’t know that the mayor’s lawyers would hide the truth,” she said. “I thought it would be different in a courthouse, but it wasn’t. It’s the same conspiracy, the same code of silence.”
The city recently agreed to settle the case for more than $2 million, a source with knowledge of the agreement said.
Patton would not comment on a possible settlement but said the mistakes in the Pinex case were “isolated” and “unacceptable.”
Even when the city does turn over records, the Tribune found, they can be incomplete. This puts plaintiffs’ attorneys at a disadvantage, as they must guess at what facts are missing or move blindly ahead with the legal process.
In February 2014, attorney Candace Gorman asked the city to turn over videos of witness statements as part of a lawsuit stemming from Divonte Young’s fatal shooting by a Chicago police officer. She asked again in September. And again in December.
Each time, court records show, the city said it had turned over all the records provided by the Police Department — a position that would have held if Gorman had not noticed a reference to a witness statement buried in the records she did receive. The statement was given at a police station, which meant it was likely recorded on video.
The Police Department eventually provided that video of the witness’ statement, but Gorman wanted more. She asked for a summary of all interviews with another witness and that witness’ last-known address.
City lawyers made several requests for the information, but the Police Department never responded, according to a Law Department memo obtained by the Tribune.
A month later, the Police Department turned over a document showing the witness had given another statement seven months after the shooting and had backed off his initial claims that he saw Young, 20, shooting a gun shortly before an officer fired on him.
City officials said “the failures to timely provide responsive materials in this case” would be avoided in the future through plans to give the division attorneys direct access to CPD records.
Young’s lawsuit was briefly halted earlier this year after the Law Department earmarked the case for an outside review of discovery practices following Judge Chang’s ruling. An outside firm found no irregularities in its review, officials said.
While Gorman welcomes the outside review and promises of reform, she still has doubts as to whether the Law Department wants to improve.
“The things they do are mind-boggling,” she said. “There won’t be any real change until the city truly wants change.”