DEFENDANT O'CALLAGHAN'S RULE 50(b) RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW

MATTHEW F. KENNELLY, District Judge.

Defendant, David O'Callaghan, by his attorney, Terrence M. Burns of Dykema Gossett, PLLC, for his renewed motion for judgment as a matter of law pursuant to Rule 50(b), states:

INTRODUCTION

Plaintiff failed to present legally sufficient evidence for the jury to find that David O'Callaghan violated plaintiff's due process rights. At the close of plaintiff's case-in-chief on April 22, 2014, Defendant O'Callaghan (in a joint motion with Defendants Murphy and Brannigan) moved for a directed verdict pursuant to Fed. R. Civ. P. 50(a) on all of plaintiff's claims against him. (Dkt. #659). On April 29, 2014, the jury returned a liability verdict in favor of O'Callaghan on plaintiff's conspiracy, malicious prosecution, and intentional infliction of emotional distress claims, and against O'Callaghan on plaintiff's due process claim. Judgment was entered on May 1, 2014 (Dkt. #692), while O'Callaghan's Rule 50(a) motion was still pending. O'Callaghan renews his motion for judgment as a matter of law with respect to the due process claim asserted against him.

STANDARD

A judgment can be entered as a matter of law if a party has been fully heard on an issue during a jury trial and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on an issue. Fed. R. Civ. P. 50(a). The evidence must be viewed in the light most favorable to the non-moving party and the Court must determine whether the evidence is sufficient to sustain a verdict in favor of the non-moving party. Hammond Group, Ltd. v. Spalding & Evenflo Companies, Inc., 69 F.3d 845, 848 (7th Cir. 1995). If the court does not grant a Rule 50(a) motion for judgment as a matter of law, the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised in the motion. Fed. R. Civ. P. 50(b). No later than 28 days after the entry of judgment, the movant may file a renewed motion for judgment as a matter of law. Id.

DISCUSSION

I. Plaintiff Failed to Prove His Due Process Claim Against Defendant O'Callaghan with Respect to the 1986 Trial.

Defendant O'Callaghan is entitled to judgment as a matter of law on the due process claim with respect to the 1986 trial because plaintiff presented no evidence to support his claim that any allegedly withheld or fabricated evidence was material to the outcome of that trial.1

A plaintiff may bring a § 1983 claim based on the denial of a fair trial where material exculpatory or impeachment evidence has been withheld in violation of Brady v. Maryland, 373 U.S. 83 (1963). Newsome v. McCabe, 256 F.3d 747, 752 (7th Cir. 2001). "Favorable evidence is material, and constitutional error results from its suppression by the government, if there is a `reasonable probability' that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v. Whitley, 514 U.S. 419, 433-34 (1995). In this case, the jury was instructed as follows with respect to the due process claim:

(Dkt. #668, p. 11).

Plaintiff's 1986 criminal trial was undisputedly corrupted due to the attempted bribe of Judge Maloney by the El Rukns and William Swano. The uncontested evidence established Judge Maloney was not an arbiter of the facts at all, but was instead acting only in his own self-interest when he found plaintiff guilty. Judge Maloney returned the bribe money and found plaintiff guilty in an effort to protect himself because he believed the FBI suspected him of fixing cases. Plaintiff presented no evidence that Maloney had any other motivation or would have ruled in a manner inconsistent with his significant self-interest in the 1986 trial had he been presented with the allegedly non-disclosed evidence. There was no evidence to suggest, let alone prove, there was a reasonable likelihood Judge Maloney would have found plaintiff not guilty if the subject file had been produced, or if the allegedly fabricated evidence had not been presented. Plaintiff simply could not and did not prove the materiality element of his due process claim with respect to the 1986 trial.

In its Memorandum Opinion and Order on summary judgment, this Court left open the possibility Judge Maloney based his decision to return the bribe money and convict plaintiff on the strength of the prosecution's case. (Dkt. #483, p.10). At trial, however, plaintiff presented no evidence that Judge Maloney returned the bribe money because of the strength of the prosecution's case. To the contrary, the only evidence regarding Judge Maloney's motive to return the bribe money and convict plaintiff established he did so in an attempt to throw the authorities off his trail because he knew the FBI was watching him. (4/11/14 Trial Transcript, attached hereto as Exhibit A, at 537:1-4; 4/18/14 Trial Transcript, attached hereto as Exhibit B, at 1904:16-1905:13). And while this Court characterized an argument that Maloney might have kept the bribe and acquitted plaintiff if the prosecution's case was weaker as "a rather unpalatable backdrop for a due process claim" (Dkt. #483, p.10), plaintiff presented no evidence to support such a theory.

Indeed, plaintiff himself admitted it was his understanding Judge Maloney gave the money back to protect himself. (Ex. A at 537:1-4). Both plaintiff and his post-conviction attorney, John Stainthorp, testified about and acknowledged the following admissions in their amended post-conviction petition:

(Ex. A at 592:5-25; Ex. B at 1904:24-1905:13). Mr. Stainthorp's testimony confirmed Judge Dooling awarded plaintiff a new trial based on the circumstances concerning the bribe. (Ex. B at 1905:14-16). Finally, plaintiff introduced no evidence that Judge Maloney's decision to return the bribe and convict plaintiff was based on anything other than Maloney's own self-interest in covering up his illegal conduct.

In its summary judgment opinion, the Court advanced the possibility plaintiff could present evidence suggesting that had the prosecution's evidence been weaker, the bribe would not have been perceived as necessary by Hawkins's lawyer. (Dkt. #483, at 10). Plaintiff presented no such evidence at trial. In fact, the evidence plaintiff did present contradicted that possibility. Plaintiff testified his attorney, Jack Smeeton, advised him to take a bench trial before Judge Maloney because the prosecution's "case was so weak." (4/10/14 Trial transcript, attached hereto as Exhibit C, at 410:12-25).

This Court also stated in ruling on summary judgment that plaintiff's proximate cause argument would be stronger if the jury found the bribe was meant to buy only the acquittal of Hawkins and not Fields. (Dkt. #483 at 11). Again, no such evidence was presented at trial. While plaintiff denied knowledge of the bribe, he conceded it was paid for his benefit, and he did not present any evidence to suggest the bribe was intended only for Hawkins. Plaintiff's own brief to the Illinois Supreme Court admitted the bribe was for the acquittal of both him and Hawkins. It unequivocally stated: "Former Judge Thomas Maloney accepted a bribe of $10,000 from William Swano, the attorney for Earl Hawkins, to acquit Hawkins and his co-defendant Nathson Fields of murder." (Ex. A at 593:16-23) (emphasis added). Plaintiff presented no evidence to dispute or rebut this point. And even if there was evidence to suggest the bribe was not meant to benefit plaintiff, the other evidence as discussed above demonstrates Judge Maloney returned the money and found plaintiff guilty in an effort to cover up his own corruption. There is no evidence suggesting Maloney found Hawkins guilty to cover up the bribe, but separately found plaintiff guilty for some evidence-based reason.

In the summary judgment opinion, this Court also suggested the possibility that plaintiff could present evidence his conviction would have been vacated sooner but for the continued concealment of Brady material. (Dkt. #483, p.12). Plaintiff introduced no evidence at trial to establish or support such a theory of causation.

II. Plaintiff Failed to Prove His Due Process Claim Against Defendant O'Callaghan with Respect to the 2009 Trial.

Plaintiff's due process claim pertaining to the 2009 trial cannot succeed because he was acquitted.2 The absence of a conviction forecloses plaintiff's due process claim based on a Brady violation. As the Seventh Circuit stated in Carvajal, "we are doubtful . . . that an acquitted defendant can ever establish the requisite prejudice for a Brady violation." Carvajal v. Dominguez, 542 F.3d 561, 570 (7th Cir. 2008); see also Bielanski v. County of Kane, 550 F.3d 632, 645 (7th Cir. 2008); Mosley v. City of Chicago, 614 F.3d 391, 397 (7th Cir. 2010). The Carvajal court explained that "[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." Carvajal, 542 F.3d at 570, citing Strickler v. Greene, 527 U.S. 263, 289 (1999). Because the verdict at plaintiff's 2009 trial was a "not guilty," he cannot plausibly argue that any favorable evidence, if disclosed, would undermine confidence in the verdict.

Even if the Seventh Circuit decided to recognize the viability of the "doubtful" cause of action discussed in Carvajal, plaintiff's claim would fail here with respect to the "materiality" element. Using language culled from Carvajal, Bielanski, and Mosley, this Court framed the issue as "whether the plaintiff could show that `the decision to go to trial would have been altered by the desired disclosure.'" (Mem. Op. Order 13.) The jury in this case was instructed as follows: "With regard to plaintiff's 2009 criminal trial, exculpatory or impeachment evidence, or fabricated evidence, is considered `material' if there is a reasonable likelihood that it would have altered the prosecutors' decision to proceed to trial." (Dkt. #668, p.11). Fatal to his claim, plaintiff did not introduce any evidence that the prosecutor's decision to retry him in 2009 would have been altered by the production of the subject file or any other alleged Brady material.

The only evidence relating to the materiality element of the due process claim with respect to plaintiff's 2009 trial was introduced by the defense. The 2009 prosecutor, Assistant State's Attorney Brian Sexton, testified he personally reviewed the subject file (plaintiff's Trial Exhibit #1), and had it been produced earlier, there was nothing in it that would have altered his decision to proceed to the 2009 trial. Mr. Sexton was asked the following questions and gave the following answers at trial:

(4/23/14 Trial Testimony, attached hereto as Exhibit D, at 2753:14-21). Mr. Sexton explained the basis for that conclusion and described to the jury the other evidence of which he was aware that implicated plaintiff in the Smith and Hickman murders. (Ex. D at 2735:15-2736:17; 2748:3-9). Plaintiff presented no evidence to refute Mr. Sexton on this issue and failed to meet his burden in proving materiality concerning the 2009 trial.

As the Court's due process jury instruction (see p. 7, supra) reflected, plaintiff also attempted a "fabricated evidence" component in his due process claim.3 Immediately before trial, plaintiff's counsel, at the request of the Court, clarified the due process claim as related to the 2009 trial. According to plaintiff's counsel, the claim was based on the non-production of the so-called "street file" (plaintiff's Trial Exhibit #1), and the alleged manipulation/coercion of witnesses Randy Langston, Gerald Morris, and Earl Hawkins. (4/3/14 Trial Transcript, attached hereto as Exhibit E, at 39:3-42:20). As discussed above, plaintiff failed to present evidence at trial establishing the element of materiality with respect to the Brady aspect of his due process claim. Plaintiff likewise failed to meet his burden of presenting evidence to support a jury finding that any allegedly "fabricated evidence" was material to the prosecutors' decision to proceed to the 2009 trial.

To repeat, the due process claim concerning the 2009 trial, as clarified by plaintiff's counsel, involved the alleged manipulation/coercion of witnesses Randy Langston, Gerald Morris, and Earl Hawkins. There is no allegation or evidence O'Callaghan coerced or manipulated Earl Hawkins with respect to the 2009 prosecution.4 With respect to witnesses Randy Langston and Gerald Morris, the evidence at trial established that their recantations, and issues regarding their identifications of plaintiff as a perpetrator, were known to prosecutors long before the 2009 trial, either through testimony from the 1986 sentencing hearing or from affidavits. The evidence also established prosecutors met with both Randy Langston and Gerald Morris prior to presenting them as witnesses at the 2009 trial. (4/16/14 Trial Testimony, attached hereto as Exhibit F, at 1366:1-3; Ex. D at 2737:16-21). The prosecutors knew about O'Callaghan's alleged manipulation/coercion of these witnesses, and they still decided to proceed to trial in 2009. In other words, the alleged manipulation/coercion of these witnesses did not alter the prosecutors' decision to proceed to the 2009 trial. Plaintiff introduced no contrary evidence on this issue.

Whether assessing the 1986 trial or the prosecutor's decision to proceed to the 2009 trial, plaintiff failed to establish a legally sufficient evidentiary basis on the element of materiality to sustain a jury verdict in his favor on the due process claim.

CONCLUSION

Plaintiff failed to meet his burden in proving the materiality element of his due process claim. Plaintiff's 1986 conviction directly resulted from the failed attempt by William Swano and the El Rukns to bribe Judge Maloney. There is no evidence to suggest that had different evidence been presented at the 1986 trial, there was a reasonable likelihood Judge Maloney would have acted contrary to his own self-interest and acquitted plaintiff. As to the 2009 trial, a due process claim is not viable in the Seventh Circuit because plaintiff was acquitted. But even if the Seventh Circuit were to recognize the cause of action attempted by plaintiff, O'Callaghan is still entitled to judgment as a matter of law. Plaintiff failed to establish the materiality element with respect to the 2009 trial. Plaintiff did not present any evidence the prosecutors' decision to proceed to the 2009 trial would have been altered if the subject file had been produced, and the evidence was unrebutted they knew of the recantation issues concerning witnesses Randy Langston and Gerald Morris and still proceeded to trial. Because plaintiff failed to present evidence to support the materiality element of his due process claim, Defendant O'Callaghan is entitled to judgment as a matter of law.

WHEREFORE, Defendant, David O'Callaghan, respectfully requests this Court grant judgment in his favor as a matter of law on plaintiff's due process claim against him.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

VOLUME 3

TRANSCRIPT OF TRIAL

BEFORE THE HONORABLE MATTHEW F. KENNELLY, and a jury

Q. You believe Judge Maloney found you guilty after he returned the money that had been given to him, the $10,000? He gave it back to protect himself, true?

A. I believe that's true.

Q. In fact, you filed a post-conviction petition saying that the judge corrupted your trial, denied you a fair trial, by taking a bribe; isn't that true?

A. That's true.

Q. And you filed that before Judge — is it Deborah Mary Dooling?

A. Yes.

Q. And Judge Dooling, in response to your claim that the trial had been corrupted by the actions of Judge Maloney taking $10,000, set aside that verdict and gave you a new trial, correct?

A. Correct.

Q. I'd like to ask you a few questions about yourself, given some of the testimony that we've heard about you from 1971. Do you recall that?

A. Yes.

Q. In fact, you have a good memory about a great deal of things since 1971 through 1986 through 2009, don't you?

A. Not really.

Q. Not really?

A. Not really.

BY MR. BURNS:

Q. I'm going to refer then to paragraph 53. Do you see that, Mr. Fields?

A. Yes, I do.

Q. And it says "The initial acceptance of the bribe, its subsequent return, and the judge's knowledge of the FBI investigation created a conflict of interest for Judge Maloney. After he learned of the FBI's suspicions concerning the fix, Judge Maloney had a significant self-interest in finding Fields guilty since he could then claim the case had never been fixed and could point to the guilty verdict as evidence of this. This conflict of interest denied Fields a fair trial." Did I read that accurately?

A. Yes, you did.

Q. Then this is, in fact, what you set forth, amongst other things, in your post-conviction petition, correct?

A. Correct.

Q. I'm going to refer you now to paragraph 54. Do you see paragraph 54?

A. Yes, I do.

Q. It says, "Judge Maloney was not an impartial judge of the facts in this matter by reason of his agreement to take a bribe, his knowledge of the FBI investigation, and his subsequent return of the bribe." Did I also read that correctly?

A. Yes, you did.

Q. And this was contained in your petition to Judge Deborah Mary Dooling. Is that the name?

A. Deborah Dooling. I don't know her middle.

Q. Deborah Dooling, who granted your petition and gave you a new trial, correct?

A. Yes, she did.

Q. And then there was an appeal to the Illinois Supreme Court, correct?

A. Correct.

Q. And you filed a petition in response, correct?

A. Yes.

Q. And, if I may, I'm going to refer you to that brief. In fact, to the opening sentence of the brief that was filed with the Supreme Court on your behalf. Can you see it?

A. Yes, I see it.

Q. It says, "Former Judge Thomas Maloney accepted a bribe of $10,000 from William Swano, the attorney for Earl Hawkins, to acquit Hawkins and his codefendant Nathson Fields of murder." Did I read that correctly?

A. Yes, you did.

Q. And that is what was filed on your behalf to the Illinois Supreme Court; am I correct?

A. You are correct.

Q. You told us during your testimony that Randy Langston testified against you during your 1986 and 2009 trials; am I

EXHIBIT B

VOLUME 8

TRANSCRIPT OF TRIAL BEFORE THE HONORABLE MATTHEW F. KENNELLY, and a jury

Dooling?

A. That's correct.

Q. And that matter was considered by Judge Dooling, and eventually Judge Dooling made a ruling based upon the corruption Judge Maloney to give Mr. Fields a new trial, correct?

A. That is correct.

Q. I'd like to ask you. In the petition that you filed — and this is the one now, for reference, to September the 8th, 1992. You filed this petition, and in there you included — and I'm going to read to you. I'm going to put it up so you'll be able to see it, if you'd bear with me for one moment.

(Brief pause.)

BY MR. BURNS:

Q. There. Can you see that?

A. I can.

Q. Those are paragraphs 53 and 54 of the amended petition for post-conviction relief. Do you see those?

A. I do.

Q. Those are what you prepared on behalf of Mr. Fields and that was filed in the petition assigned to Judge Dooling, correct?

A. That is correct.

Q. Let me read and tell me if I have accurately read what you set forth in the petition beginning with paragraph 53.

"The initial acceptance of the bribe, its subsequent return, and the judge's knowledge of the FBI investigation created a conflict of interest for Judge Maloney. After he learned of the FBI's suspicions concerning the fix, Judge Maloney had a significant self-interest in finding Fields guilty, since he could then claim the case had never been fixed and could point to the guilty verdict as evidence of this. This conflict of interest denied Fields a fair trial."

Is that what you set forth in that petition?

A. Yes.

Q. Reading paragraph 54. "Judge Maloney was not an impartial judge of the facts in this matter by reason of his agreement to take a bribe, his knowledge of the FBI investigation, and his subsequent return of the bribe." Did you also set that forth?

A. Yes.

Q. And based upon this, Judge Dooling granted Mr. Fields a new trial?

A. Correct.

Q. Now, was there an appeal taken by the State after Judge Dooling's ruling?

A. Yes, there was.

Q. And did you represent Mr. Fields in regard to that appeal?

A. I did.

Q. Did you actually prepare on his behalf a brief?

A. I did.

Q. Is that a brief that was filed with the Illinois Supreme Court?

EXHIBIT C

VOLUME 2

TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE MATTHEW F. KENNELLY, AND A JURY

month or a half a month before the trial that they was going go with the Smith-Hickman first.

Q. And was this going to be a jury trial?

A. Yes. At that time, yes.

Q. And did you talk with your attorney about wanting to have a jury trial?

A He just told me that's what we was going to go with, but later he told me why we should not have a jury.

Q Later he talked to you about why you should have a bench trial instead?

A Yes, he did.

Q And do you recall why he recommended a bench trial at that time?

A Well, he told me he was — he was a Cook County state's attorney about a year before, you know, my trial came up, and said he was a state's attorney before this judge, Thomas Maloney. He said that the case was so weak, he said he felt that the judge would not believe the story that the witnesses were saying, that the mens committed the crime in broad daylight and took they masks off and stood there for 20, 30 seconds on the busy 39th Street. He felt the judge would not believe that, that he wouldn't believe it and that if I took a jury trial I might run into the prejudice of the fact that I was in a gang at the time and that the jury might just find me guilty because I'm in a gang.

EXHIBIT D

VOLUME 11

TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE MATTHEW F. KENNELLY AND A JURY

A The bribery of Judge Maloney.

Q And did that ruling have anything whatsoever to do with the issue of Vaughn-White and Anthony Sumner's lie with respect to that?

A No.

Q When the case came back from the Supreme Court, you were assigned to the case?

A Yes, I was one of the prosecutors assigned.

Q And who was the other prosecutor?

A Dave Kelly.

Q And just generally speaking, what did you do when the case came back to familiarize yourself with the matter?

A Basically ordered the old file and just tried to start looking for witnesses.

Q And at some point did you also have a conversation —

And when you ordered the old file, did you read through the 1986 trial transcript?

A Yeah.

Q And when you — did you also have occasion to reach out for a federal prosecutor?

A Yeah. We reached out to Bill Hogan, who was the federal prosecutor assigned to the El Rukns. That would be sometime later in '98, just to get a feel for some of the other cooperators in the El Rukn case, in the federal case.

Q And did Mr. Hogan provide you information about some specific El Rukn cooperating witnesses who had previously testified about the Smith-Hickman case?

A Yes.

Q And would some of those individuals have been Earl Hawkins and Tramell Davis and Eugene Hunter and Jackie Clay and Derrick Kees?

A Yes.

Q And among others; is that right?

A That's correct.

Q And did — was the information provided to you had to do with, all of it, with Mr. Fields' involvement in the homicides Smith and Hickman?

A Yes.

Q And did, collectively and with other information, did that factor into your probable cause to continue the prosecution of Mr. Fields?

A Absolutely.

Q In — sometime in 1999, Mr. Sexton, did you become —

Well, there were a couple of eyewitnesses to the Smith and Hickman homicides that you became aware of from reading the first trial?

A Yes.

Q And who were those?

A Randy Langston and Gerald Morris.

Q And sometime in 1999 did you become aware of a recant affidavit that Gerald Morris had provided?

A Yes.

Q And do you recall he had provided that to the attorneys for Mr. Fields?

A Yeah. They're the ones that gave it to us.

Q So Mr. Fields took — Mr. Fields' attorneys took the recant from Mr. Morris and tendered it to you?

A Yeah, at some point in the discovery process we got it from the attorneys.

Q And then what did you do after you got that recant of Mr. Morris's trial testimony with respect to Mr. Morris?

A Basically we just tried to reach out to Gerald to figure out what the situation was.

Q And what happened after that?

A We were eventually able to locate him in Milwaukee.

Q And did you actually — after you located him, did you interview Gerald Morris?

A Yes. We interviewed him in early I want to say January of 2000. He didn't want to talk at his home, so we interviewed him at a restaurant. It was a kind of like a Greek diner. I think it was Mykonos or something in Milwaukee.

Q And who went up to Milwaukee or who was present for this interview of Mr. Morris in approximately January of 2000?

A Myself, my partner Dave Kelly, it was our investigator, state's attorney investigator Bob Prawiec, that's

Q And because he was deceased?

A Yes.

Q And who did you call as witnesses on your behalf who identified Mr. Fields as involved in the Smith and Hickman case?

A Randy Langston, Gerald Morris, and Earl Hawkins testified against him as well.

Q And you —

A And I belive Richard — I believe Mr. Buckles as well.

Q And you made an argument in closing argument; is that right?

A Yes.

Q And please explain to the ladies and gentlemen of the jury the argument you made, just synopsis, with respect to Mr. Fields' involvement and the other shooter?

A That basically —

MS. GORMAN: Objection, your Honor.

THE COURT: Let me just talk to the lawyers briefly at side bar.

(The following proceedings were had at sidebar in the presence but out of the hearing of the jury:)

THE COURT: I just want to know what he's going to say.

MR. NOLAND: He's going to say that he argued that all the witnesses had identified Fields and so that was the the case should be turned over to the criminal defense during prosecution; is that right?

A Sure.

Q And what's your — what's the policy at the State's Attorney's Office with respect to documents in your file?

A We turn everything over. I know as far as my practice, and this is what I did with Mr. Fields' attorneys in 2009, it was about a month or so before. We set up a date. We had the — Herschella and Jean Snyder come over. We just opened up our whole files and said, listen, if you're missing anything, go through the whole thing and make a copy of whatever you're missing. And I do that for every trial just so there's no issue.

Q Mr. Sexton, you've had an opportunity since the 2009 trial to review the stuff you didn't have in this Exhibit 1; is that true?

A Yeah.

Q And, Mr. Sexton, had you had this file at any time between '98 and 2009, would you have dropped the prosecution against Mr. Fields for killing Smith and Hickman?

A Absolutely not.

Q And why is that?

A Because it's not exculpatory. It's not — it's all anonymous tips. It's not any evidence. There's no impeachment of any of the State's eyewitnesses. And much of

EXHIBIT E

TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE MATTHEW F. KENNELLY

So any time in the morning would be good.

MR. MICHALIK: Thank you.

THE COURT: Okay. The next thing I want to talk about is the motion to withdraw — well, it's not really called that. It's called the withdrawal of claim or something like that. And I think I entered a little order saying I wanted to talk about this. Let me just get it.

Notice of claim removal. Okay. So what I understand you to be saying here is that you're intending to withdraw your claim for malicious prosecution relating to the 2009 trial.

MS. GORMAN: Correct, your Honor.

THE COURT: Does that mean that you are —

What does that do with the Brady claim relating to the 2009 trial? That's still in?

MS. GORMAN: Correct.

THE COURT: All right. And remind me what the Brady claim is relating to the 2009 trial. In other words, what is that is contended that was withheld, not disclosed, fabricated, whatever, regarding 2009?

MS. GORMAN: The Brady claim is the street file, your Honor, because that was still not tendered for the 2009 trial.

THE COURT: Is it just that or is there more than that?

MS. GORMAN: Well, originally there was more than that, but I think we would be withdrawing it.

THE COURT: Now, I want to be clear on this. So if you need to talk to somebody out there before answering this question definitively, I want you to do that. But are you telling me that the Brady claim, the federal claim, in other words, to the extent it concerns the 2009 trial, is only going include — it's only going to involve the nondisclosure of the street file?

MS. GORMAN: Yes. And could I talk to Mr. Goodman?

THE COURT: Yes, okay.

(Brief interruption.)

MS. GORMAN: Your Honor, I just talked with my co-counsel, and we do believe there's another aspect of the Brady claim.

THE COURT: For 2009.

MS. GORMAN: For 2009. And that's the manipulation of witnesses, that they had not disclosed the fact that these witnesses were shown just individual photos, so it was —

THE COURT: Which witnesses are we talking about?

MS. GORMAN: Randy Langston and Gerald Morris.

THE COURT: And it has to do with their identification —

MS. GORMAN: Correct.

THE COURT: — of people?

MS. GORMAN: And the coercion that they were subjected to.

THE COURT: Okay. So just to be real clear about it, so the Brady claim as it relates to 2009 is the street file and I'll just call it generically, generally speaking, misconduct vis-a-vis Randy Langston and Gerald Morris.

MS. GORMAN: Correct.

THE COURT: Anything else?

MS. GORMAN: No.

THE COURT: Okay. All right. And your contention is, then, that as the result of withdrawing the malicious prosecution claim, which has an element of probable cause in it, that a number of the witnesses that the defendants were planning to call would not be relevant because there isn't any issue about probable cause for that trial anymore?

MS. GORMAN: Your Honor, I'm sorry. I just was reminded that Earl Hawkins' manipulation was also part of the 2009 trial. And I'm sorry.

THE COURT: So, you know, I guess I'm not going to use the metaphor again because it got replayed in the Chicago Tribune, okay, but I'm just going to sit here silently until you're prepared to give me a complete answer to my question.

MS. GORMAN: The manipulation of the witnesses that we're maintaining continued into the 2009 trial was Earl Hawkins, Gerald Morris and Randy Langston.

THE COURT: Pretend this is a deposition. Anything else?

MS. GORMAN: No, your Honor.

THE COURT: Are you sure?

MS. GORMAN: Yes, your Honor.

THE COURT: Are you a hundred percent sure?

MS. GORMAN: I'll stand quiet.

THE COURT: All right. So your contention, then, is that, among other things, that because you've withdrawn the malicious prosecution claim, there isn't any issue of probable cause, and so you're saying that the testimony of certain people wouldn't be relevant. So I have a follow-up question

EXHIBIT F

VOLUME 6 TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE MATTHEW F. KENNELLY AND A JURY

Q You remember visits from Assistant State's Attorney Dave Kelly?

A Yeah.

Q And he told you that Nate Fields had got a new trial and was going to go to trial again. Isn't that what he told you?

A Yeah.

Q And they wanted you to come back and testify again, didn't they?

A Yeah.

Q You didn't want to come back and testify again, did you?

A No.

MR. GOODMAN: I think we have objections.

THE COURT: Why don't you check first before we —

MR. GOODMAN: Okay.

THE COURT: Just show it to them.

What's the exhibit number and —

MR. GOODMAN: 126 and 130, the letter.

MR. BURNS: No objection on our part, your Honor.

MR. PECHOUS: No objection.

THE COURT: Okay.

BY MR. GOODMAN:

Q I'm going to show you —

You have a screen in front of you, right?

A Yeah.

Q I'm going to show you —