MILTON I. SHADUR, Senior District Judge.
Following the May 28, 2010 approval and issuance of the jointly submitted final pretrial order ("FPTO") in this action, each side has deluged this Court with a host of motions in limine. With defense counsel now having tendered their inadvertently omitted responses to Motions 5 and 6 advanced by plaintiff Larry Scott ("Scott"), Scott's entire set of 15 motions (plus a few subparts) is ready for consideration. This memorandum opinion and order addresses them, with an opinion that will deal with defendants' motions in limine to follow later.
It should be remarked at the outset— and with regret—that too much of defense counsel's work product, both in their positions that triggered some of Scott's motions and in their responses to those motions, seeks to defeat this action by stressing that Scott is a bad man as evidenced by his extensive criminal record. This Court holds no brief for the criminal element in our society—much of its time and effort as a federal judge are devoted to the conviction and sentencing of defendants charged with federal crimes—but this Court also recognizes that criminals too have constitutional rights, as defense counsel seem to question.
We have all witnessed a deterioration in society's regard for law enforcement personnel because of some bad apples who proceed from the premise that suspected or actual criminals have no rights and thus, by their own lawless actions, poison the environment for the large majority of law-abiding law enforcement officers. Although the most notorious example of that phenomenon here in the Chicago area has been provided by the recent conviction of former Police Commander Jon Burge, this case itself shows how shortsighted that premise can be: Scott's conviction on charges of first-degree murder and armed robbery was overturned because the Illinois Appellate Court held that the unlawful conduct of Detective John Fassl ("Fassl," one of the defendants in this action) had violated Scott's Fourth Amendment rights, tainting his confession and requiring its suppression (People v. Scott, 366 Ill.App.3d 638, 304 Ill.Dec. 281, 852 N.E.2d 531 (1st Dist.2006)).
As a society we are entitled to expect more from those who are entrusted with the powers that we accord to law enforcement personnel. And a fortiori we are entitled to expect more from the lawyers in the public law offices. It is no accident that Illinois criminal prosecutions are brought in the name of the "People of the State of Illinois," reflecting the concept that prosecutors are not merely advocates but are rather expected to serve as instruments
Although that language may be viewed as oriented toward the criminal practice, it hardly seems amiss to impose a like standard on the lawyers who represent government agencies or employees in civil matters.
That said, this opinion turns to plaintiff's motions themselves. Mention should first be made of those that are not in dispute (all part of Dkt. 141):
Now on to the contested motions.
Scott's Motion 1 seeks to bar from admission at trial (1) his videotaped confession, (2) the transcript of that confession and (3) what is called "the graphic demonstrative exhibit showing a transcription within the videotaped confession." In essence Scott's counsel argues that such a bar is supported by our Court of Appeals' very recent decision in Fox v. Hayes, 600 F.3d 819 (7th Cir.2010), which upheld the decision by this Court's colleague Honorable Jack Darrah to bar a videotaped confession in a case having great similarity to this one.
Here is what Fox, id. at 840 said on the subject:
And here is Scott's argument as to why Fox should control here (Motion at 4, emphasis in original):
Because defense counsel really cannot dispute the just identified parallels between the two cases, and because it is obvious that the content of the confession is really not relevant (and even it if were, it poses a major danger of unfair prejudice so as to bring Fed.R.Evid. ("Evid. R.") 403 into play), a good deal of defendants' response to the motion is unpersuasive. But on the other hand, there is force to the defense contention that the video's depiction of Scott's physical appearance at the time of the confession could be found probative by the jury.
Accordingly the video (but not the audio or the transcript, or the third item to which Scott objects, which sounds like the equivalent of closed captioning on a TV program) will be a permitted exhibit. For that purpose the bowdlerized tape will have to be submitted to this Court for review and approval materially in advance of trial, so that any other necessary changes may be decided upon.
That degree of access on the part of the jury effectively satisfies the legitimate aspects of defendants' response, while at the same time taking heed of the Rule 403 dangers that would be implicit in full access. Motion 1 is thus denied in principal part but is granted to a limited extent.
Scott's Motion 2 seeks to preclude any trial testimony by Dr. Joel Silberberg, a psychiatrist who is one of defendants' proposed opinion witnesses as to Scott's asserted lack of damages. As Motion at 1 urges, Dr. Silberberg's testimony should be barred:
What is at issue are the parties' competing opinions as to the extent of Scott's current state of depression and the cause of that condition, with defendants proffering Dr. Silberberg as a witness who is supported (he says) by a report authored by psychologist Dr. Robert Hanlon, while Scott relies on the opinions reached by Scott's retained damages witness, psychologist Dr. Paul Pasulka. Dr. Pasulka administered and has interpreted the results of a group of the recognized diagnostic tests to support such opinions, while Dr. Silberberg's deposition testimony admits (1) that he is not qualified to opine on that subject (due to a lack of training to administer or to interpret such tests) and (2) that he chose instead to rely on Dr. Hanlon's review of Dr. Pasulka's testing because "there's a code of practice or code of ethics that only psychologists can comment on another psychologist's report."
This Court has an intimate familiarity with the provisions of Evid. R. 703 as to the bases that are permitted to support witnesses' opinion testimony—in its capacity as a member of the Judicial Conference's Advisory Committee on the Rules of Evidence before it was appointed to chair that Committee, this Court headed the subcommittee specially assigned to review and to recommend to the entire Committee revised versions of (1) Evid. R.s 701, 702 and 703 and (2) the Committee Notes to accompany the new versions of those Rules. In that respect it shared the principal draftsmanship of the new revised versions with the Committee's extraordinarily talented and knowledgeable reporter, Professor Daniel Capra of Fordham Law School. And having considered the current motion in depth, this Court finds
There is of course no quarrel with Dr. Silberberg's qualifications in his field. But in this instance that is a vice rather than a virtue, because it would impermissibly coat Dr. Silberberg's opinion with the patina of expertise, even though he acknowledges that he has chosen to credit Dr. Hanlon's opinions over those of Dr. Pasulka without possessing the professional know-how to do so.
Once again Scott's counsel calls upon a Seventh Circuit decision in support of his argument—one that points up the distinction between (1) an opinion witness' permissible use of another's opinion en route to reaching the witness' own opinion and (2) the flawed methodology employed by Dr. Silberberg (Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609 (7th Cir. 2002)). Because of the comprehensive nature of the analysis there, it bears quotation at length (id. at 613-14, with most citations omitted):
Little more really needs to be said. Dr. Silberberg's deposition testimony has acknowledged his inability to comment on Dr. Pasulka's report, not only as an ethical matter but also because he is not equipped to do so professionally. Yet he goes on to vouch for Dr. Hanlon's contrary opinion, even though, as Dura, 285 F.3d at 613 posits, "the soundness of the underlying expert judgment is in issue." As teed up by defendants, Dr. Silberberg's report flunks the Daubert-Kumho gatekeeping test. Motion 2 is granted.
Here too Scott seeks to bar the testimony of an opinion witness, R. Douglas Rhoads ("Rhoads"). According to Rhoads' Fed.R.Civ.P. ("Civ. R.") 26(a)(2)(B) report, he has concluded, and would expect to testify, as to the conduct of the detective defendants in this case:
Rhoads reaches that conclusion on the basis of his Summary of Facts, which reads like a brief written by defense counsel, accepting in its totality the version of events given by those detectives and all other pro-prosecution witnesses.
It is of course permissible for an opinion witness, in arriving at his or her conclusions, to premise that result on one side's view of contested events—as Magistrate Judge Jeffrey Cole said in Richman v. Sheahan, 415 F.Supp.2d 929, 942 (N.D.Ill.2006):
In that way, if a factfinding jury then determines that the facts are in accordance with those assumptions, it can go on to decide whether to credit the opinions that rest on that foundation.
But here Rhoads has impermissibly flouted the definitive and controlling rejection of his above-quoted opinion by no less than the Illinois Appellate Court. Here is the way in which that court described Fassl's testimony in Scott's criminal trial (People v. Scott, 366 Ill.App.3d at 643-44, 304 Ill.Dec. at 286, 852 N.E.2d at 536):
And the court then found that Fassl's conduct (rather misconduct) had rendered Scott's arrest illegal, so that Scott's subsequent confession had been fatally tainted by the violation of his Fourth Amendment rights—and in turn that Scott's conviction was likewise fatally tainted.
In that light the Appellate Court, after conducting a comprehensive review (1) of all the evidence in the case, prosecution and defense alike, and (2) of relevant legal authority, stated (id. at 290, 852 N.E.2d at 540 (citations omitted)):
All of this flatly contradicts Rhoads' opinion that Fassl's conduct—which violated Scott's federal constitutional rights— was "consistent with reasonable and appropriate law enforcement practices and training generally." It is more than worth noting that Rhoads has not even included, among the case-related documents that he details as having reviewed en route to reaching his opinion, the decision of the Appellate Court. Indeed, all that he says on that score is contained in this brief snippet at the conclusion of his one-sided Summary of Facts:
Needless to say, Rhoads cannot set himself up as a super-appellate court entitled to overturn the state Appellate Court's legal reasoning and conclusion with a contrary opinion of his own. That too flunks the Daubert-Kumho analysis, and Scott's Motion 3 is also granted.
This time Scott's counsel challenges another proposed witness, Assistant State's Attorney James Papa ("Papa"), either by barring or by limiting his trial testimony. This time defendants have the better of the argument, subject to some qualifications.
Although Scott's counsel argues a lack of relevancy or, if not, that Papa's testimony "would be overly prejudicial and cumulative," that cannot be said as to what Papa asserts that he observed of Scott's appearance, demeanor and conduct—matters that the factfinding jury could view as bearing on Scott's claims regarding the treatment to which he was subjected and the effect on his physical condition. There are of course some plain qualifications on such testimony by Papa:
It is obvious that this Court's advance expression of views cannot anticipate questions in this area that may arise at trial. Hence Scott's Motion 4 is conditionally denied, subject to review as to individual matters that may arise at trial.
Here Scott seeks a ruling that a document reflecting a polygraph examination of Estella Gonzales (the woman who found the murder victim), conducted by Chicago Police Department Forensics Services Officer Robert Bartik ("Bartik"), is admissible in evidence. Defendants' objections, advanced on foundation and hearsay grounds, must be and are rejected.
As for the former objection, questions as to "foundation" may of course have a proper place in evidentiary determinations. But that does not support the overly pious proclamation by defense counsel in their Dkt. 164 Response at 1:
It would be one thing if there were any suspicion that a document was bogus, or if for example there was some question about the chain of custody of some physical evidence (a drug sample, for example), or something of the sort. But it is frankly offensive for defense counsel to object to official police documents that defense counsel themselves provided to Scott's counsel.
If under those circumstances defense counsel were to insist that Scott's counsel must hale into court a witness to testify as to those documents that admittedly pose no real foundation problem, that demand might appropriately be viewed as "multipl[ying] the proceedings in a case unreasonably and vexatiously," so as to impose personal liability on defense counsel under 28 U.S.C. § 1927. This Court has no desire to be heavy handed, but lawyers ought to exercise some sensible judgment in interposing such objections.
As for defense counsel's claimed hearsay objection, the Bartik-generated document itself is admissible because it is within the hearsay exceptions provided by both Evid. R. 803(6) and 803(8). And as for defense counsel's objection that the document contains an internal hearsay statement that is accordingly inadmissible, that position does not withstand analysis either.
On that score the asserted objection targets the document's inclusion of a plus sign (Bartik's symbol for an affirmative answer given by the subject of a polygraph examination) in response to the question "Did u stab Conrado?" But it is plain that the
Thus neither objection to the Bartik report is persuasive. Scott's Motion 5 is granted.
Scott's counsel "moves this Honorable Court to bar the Defendants from suggesting to the Jury that they could have legally held the Plaintiff for longer than 48 hours without a probable cause hearing, and also moves this Court to instruct the Jury regarding the legality of holding individuals arrested without a warrant or probable cause." Defense counsel's response (Dkt. 161) demonstrates persuasively that the motion is really premature, because its subject can best be addressed in the environment of trial, when the issues will have been sharpened and an informed ruling can be made. Accordingly Motion 6 is denied without prejudice.
This motion seeks to bar photographs of the murder scene and of the murder victim's autopsy. Although defense counsel seek to resist the characterization of those photographs as "grotesque and ... clearly intended to distract the Jury from the issues and to inflame its passions" (Scott's Mem. 1), the response (Dkt. 154 at 1-3) really glosses over what appears to be a lack of relevance, as well as failing to cope effectively with obvious Evid. R. 403 problems.
It should be remembered, as defense counsel themselves point out, just what the parties' dispute really comes down to—whether to credit the scenario testified to by Detective Fassl or the very different version of events by Scott, as summarized briefly this way by defense counsel (Dkt. 154 Response at 3):
That being so, nothing but a diversion (and an overly prejudicial diversion at that) would appear to be created by introduction of the disputed photographs—they make it neither more nor less probable that the version by one side or the other is credible. Motion 8 is therefore granted.
Scott's counsel characterizes this motion as one "to Bar References to Arrests with no Conviction, to Convictions more than 10 years old, and to the Specifics of Prior Convictions other than the Charge, Date and Disposition of the Conviction." In response defense counsel disclaims any intention to offer such evidence "to show bad behavior, character or a propensity to commit crimes" (Dkt. 154 Response at 4), arguing instead that Scott's "prolific life of crime, however, is relevant to the issue of lost income" and also "to his damages" (id.).
As for defense counsel's efforts to introduce evidence of Scott's prior arrests that did not lead to convictions, it is ironic how vigorously the selfsame defense counsel seek to call Evid. R. 404(b) and 403 into play when it comes to Scott's effort to
As for criminal convictions, a limitation that would minimize (if not eliminate entirely) the risk that the factfinding jury could decide the case on a "bad man" basis rather than on the merits is the route that this Court will take. Evid. R. 609 will provide the standards for impeachment of Scott, and the same approach should suffice to allow the proper use of the same evidence for substantive purposes.
In summary, at this point Motion 9, as described in the capsule description quoted at the outset of this section, is granted. This ruling is potentially subject to refinement and particularized consideration at the time of trial.
Scott testified in his deposition that he received a "bad conduct" discharge from the military some 28 years ago (!), resulting in his being confined to his barracks with a requirement of hard labor for some six months. Defense counsel urge that evidence of that fact should be admitted, once again because it is purportedly relevant to Scott's damages claim.
That strikes this Court as no better than a blatant effort to dirty up Scott in every conceivable manner—an effort that does no credit to defense counsel. Any incremental probative value that might arguably be ascribed to that evidence, if it were to be admitted in addition to Scott's criminal record that is properly admissible under Evid. R. 609, is far outweighed by the unfair prejudice it would generate for Evid. R. 403 balancing purposes. Accordingly Motion 11 is granted.
Scott's counsel describes this motion as one seeking "to Bar Suggestion that Plaintiff or Lori Ciesiun Were/Are Bad Parents due to their Drug Addictions/Habits." As so framed, that motion is granted in principle—but here, as with Motion 9, this Court would be prepared to take a fresh look at the potential use of evidence in that area as it may bear on the issue of damages (an argument that is advanced in defendants' Dkt. 154 Response at 5-6).
Scott's summary description of this motion is that it asks "to Bar Reference to Plaintiff Attempting Suicide with a Gun in 1999." Here too defense counsel trot out the oft-ridden "damages" horse as a ground for admissibility. In that respect defendants' response (Dkt. 154 at 6) refers in part to Scott's deposition testimony that he attempted suicide while incarcerated in Cook County Jail following his October 2000 arrest on the charge that gave rise to the current lawsuit.
In candor, the manner in which this issue has been posed by the parties "is a puzzlement" (as Yul Brynner put it in The King and I). Scott's earlier suicide effort
Thus if Scott's earlier attempt reflects a fragile mental state, so that he would be more susceptible to repeating the suicide effort in reaction to the trauma assertedly inflicted on him by defendants, that could potentially increase rather than necessarily decreasing any recovery of damages. In any case, the fact of Scott's earlier attempted suicide appears to be relevant if evidence as to Scott's October 2000 attempt is introduced into the case. Motion 13, except for the already-mentioned limitation as to the means employed by Scott in 1999, is denied.
Here Scott moves "to Bar Suggestion that Plaintiff was Violent while Under the Influence of Drugs or when going through Withdrawal." Defendants respond (Dkt. 154 at 8) that because there is no evidence of a history of such violence, "it would be inappropriate for Defendants to argue that any such history existed, and Defendants have no intention of doing so in this case."
But defendants then go on to discuss the potential admissibility of Scott's drug use or withdrawal or both in connection with the murder of Jesus Villalobos. That however suggests that the truthfulness or falsity of Scott's confession would be played out before the jury, and it has already been explained that such should not be the case—that instead that subject is quite beside the mark.
So defense counsel have essentially conceded that Motion 14 should be granted as Scott's counsel has framed it. Any other potential uses of testimony in that area have not been identified. Motion 14 is indeed granted.
Scott attempts to keep out of the case any evidence about defendants' financial condition or their ability to pay damages. Defense counsel properly respond (Dkt. 154 at 10-11) that such evidence is relevant to the potential imposition of punitive damages (though Dkt. 154 at 10 states incorrectly that the motion "is contrary to the Seventh Circuit's pattern jury instructions on punitive damages").
This of course is an issue that is regularly confronted by district judges. This Court has had occasion to speak to the issue in Galvan v. Norberg, No. 04 C 4003, 2006 WL 1343680, at *2 (N.D. Ill. May 10):
Accordingly Motion 15(a) is denied, subject to the possible exception identified in Galvan.
On the flipside of the issue just discussed, Scott seeks "to Bar Reference to Plaintiff's Financial Condition." Although defendants do not oppose that motion as such, their counsel contend correctly that they should be permitted to argue that Scott's motive for suing was to obtain money
This motion seeks (Dkt. 141 at 10) "to Bar Suggestion that a Particular Defendant should be found not Liable Because the Plaintiff does not Personally Know why he should be found Liable." On that motion the parties are like ships that pass in the night. Defense counsel contend that Scott should be subject to questioning "regarding who allegedly wronged him and the actions of each individual Defendant," while Scott's counsel complains of the unfairness of seeking to elicit from their lay client what amount to legal opinions on liability.
As framed, Motion 15(d) is granted. Scott may of course be interrogated as to his contacts with each defendant and the asserted effect those actions had on him. It will then be left to counsel to argue the individual defendants' liability or lack of liability on legal grounds under appropriate jury instructions. Motion 15(d), as framed, is granted.
Here Motion 15(e) asks "to Bar Suggestion that the Plaintiff Is Asking for more Compensation than he Expects to be Awarded." For reasons that this Court has difficulty in understanding, Dkt. 154 at 13-14 responds that such a motion is premature and should be denied—or alternatively that the ruling should be reserved until trial.
That response really makes no sense. Scott's counsel is not asking that defense counsel be precluded from arguing that the damages that Scott's counsel request at trial are excessive or that no damages should be awarded at all—as in every lawsuit, defense counsel are free to do that. That is quite different from the motion as framed, and it should be—and is—granted.
Finally, this motion asks to bar any reference to how Scott's counsel is being compensated. Defense counsel disavow any intention to do so, but they intend to ask for a jury instruction that Scott's attorney's fees are not to be included in any damages award. This Court regularly includes such an instruction in Section 1983 cases. As with other motions, Scott's Motion 15(g) is granted in the manner framed, although the jury instructions will include a provision to the effect just indicated.
This will summarize the results of the extended analysis that has gone before:
As stated at the outset of this opinion, this disposition of Scott's motions in limine enables this Court to proceed with defendants' motions. Although this Court's prior commitments in other cases will delay that process somewhat, it is expected that the opinion will be forthcoming shortly.
Hence the pattern instruction reflects no view on the subject of admissibility vel non.
