The opinion of the court was delivered by: Nordberg, District Judge.
MEMORANDUM OPINION AND ORDER
This matter is before the court on the defendant City of
Chicago's motion to disqualify plaintiff's counsel. The
underlying case involves a civil rights action against the
City of Chicago, Cook County, the Superintendent of the
Chicago Police Department, various police officers, a lab
technician employed by the Chicago Police Department and
various lawyers from the Cook County State's Attorney office.
The plaintiffs, George Jones and his parents brought this
action following Jones' arrest and prosecution for the murder
of Shelia Pointer and aggravated battery against her brother,
Purvey. Plaintiffs' complaint describes the pertinent events
as follows. On May 4, 1981, Shelia Pointer was raped and
murdered and her brother Purvey was beaten. Purvey, near death
and unable to
breathe on his own, was taken to the hospital. He remained
comatose for seven days, until May 11 when he finally regained
consciousness. Police questioned Purvey and finally on May 12,
police showed Purvey a photo of Jones. Plaintiffs allege that
although Purvey said he recognized Jones, he did not identify
Jones as the perpetrator of the crimes committed against
himself and his sister. Nonetheless, police went to Fenger
High School where Jones was a student and arrested him.
Learning of his son's arrest, Jones' father called attorney
Schmeidel and requested that Schmeidel and Schmeidel's
partner, Haas, represent his son. Schmeidel went to the police
station and then accompanied Jones to a one man show-up at
Purvey Pointer's hospital room. In the presence of Schmeidel,
police asked Purvey if Jones was the man who had struck Purvey
and his sister over the head. In response to this question,
Purvey stated, "No, that's not the man, that's not the man,
no, no, no." (Complaint ¶ 28). Plaintiffs allege that, despite
this unequivocal response, police continued to prompt and
encourage Purvey to change his answer and to identify Jones as
the perpetrator of the crimes. Finally Purvey amended his
answer to "yes, no, yes, no." (Complaint ¶ 29).
Based upon this allegedly improper identification, police
charged Jones with murder, rape and aggravated battery. Jones
was confined to Cook County Jail where he remained for over
one month until his family was able to raise and post bond.
During the pre-trial proceedings and the trial itself,
plaintiffs claim that defendants suppressed much exculpatory
evidence, provided the court with false police reports and
falsely testified under oath. Plaintiffs also allege that
during the trial it was revealed that defendant Furlong of the
Chicago Police Department Crime Lab withheld the results of
lab tests favorable to Jones. (Complaint ¶ 39).
Plaintiffs allege that as a result of the illegal behavior
of the police and prosecutors, the case against Jones
ultimately resulted in a mistrial. The government subsequently
decided not to prosecute Jones any further. Jones then brought
this civil rights action against the City, County and others
involved in his allegedly illegal arrest and prosecution.
Jones' five count complaint charges false arrest, false
imprisonment, malicious prosecution, denial of his right to
due process, equal protection and right to counsel, and
MOTION TO DISQUALIFY COUNSEL
The City moved to disqualify plaintiffs' attorneys Schmeidel
and Haas, their law firm, known as the People's Law Office,
and all partners and associates of that firm, including Flint
Taylor, a firm partner who is currently representing
plaintiffs. The City contends that attorney Schmeidel is an
eyewitness to one of the crucial and certain to be contested
elements of plaintiffs' case, the allegedly illegal show-up
and coercive questioning of Purvey Pointer in Pointer's
hospital room on May 12, 1981. The City also points out that
attorney Haas, while defending Jones against the criminal
charges in state court, had two conversations with defendant
Furlong, a police department lab technician, regarding lab
tests of physical evidence. Since the complaint alleges that
Furlong suppressed the results of these lab tests and falsely
testified or suborned false testimony regarding the
suppression of these tests, the City contends that Haas ought
to be a witness regarding his conversations with defendant
In ruling on the City's motion to disqualify this Court held
a hearing on June 6, 1984 to insure that a sufficient factual
inquiry allowing for subsequent appellate review was
conducted. Fullmer v. Harper, 517 F.2d 20 (10th Cir. 1975);
Analytica v. NPD Research, Inc., 708 F.2d 1263, 1275 (7th Cir.)
(Coffey, J., dissenting). The Court reviewed the pleadings and
heard opening statements by counsel for the parties, the
testimony of witnesses, the final arguments of counsel, and
considered all of the evidence and law presented, including the
exhibits received in evidence and the Court's extensive hearing
notes, as well as researched the law applicable to the case.
Flint Taylor, plaintiffs' current attorney was present on
behalf of the plaintiffs. Robert Fioretti, Assistant
Corporation Counsel and Jon Simon were present on behalf of the
City. James Houtsma, a Chicago police officer was also present.
The attorneys stipulated that all statements made by them were
made as under oath in their role as officers of the court. The
attorneys also agreed that all information contained in their
pleadings was similarly made as if under oath, in affidavit
form. The Court hereby makes the following findings of fact and
conclusions of law in accordance with Rule 52(a) of the Federal
Rules of Civil Procedure.
1. In addition to George Jones and Purvey Pointer, the
following persons were present on May 12, 1981 when George
Jones was brought to an identification show-up at Purvey
Pointer's hospital room: Police officer Houtsma, attorney
Schmeidel, two unidentified nurses, Sister Maureen, a chaplain
with the children's hospital and States' Attorneys Brian
Schultz and Kevin Moore. Brian Schultz conducted the show-up
and Kevin Moore stood in the hall outside the hospital room or
in the doorway of Pointer's room. Officer Houtsma and Brian
Schultz will testify that Purvey Pointer conclusively
identified George Jones as the person who killed his sister.
Purvey Pointer testified in the criminal case against Jones
that Jones was the person who killed his sister. Sister
Maureen presently resides in Australia. There is no record
identifying the two nurses present at the show-up as hospital
employees and it is believed that they were interns.
2. It was agreed at the hearing that the City would file
with this Court a portion of the transcript in Palmer v. City
of Chicago, 82 C 2349, which related to conversations between
lab technician Furlong and attorney Haas. After examining the
transcript, this Court finds that Furlong testified in Palmer
about procedures for opening a file, maintaining notes and
making reports when evidence is received and examined by the
Chicago Police Department Crime Lab. She also testified about
two tests she made upon evidence submitted in conjunction with
Shelia Pointer's rape and murder and reports made in connection
with these notes. She testified that she had a conversation
with attorney Haas in November, 1981 regarding one of the tests
she had performed and that Haas requested that she write a
report about the test. She further testified that in response
to Haas' request, she supplied a report to the state's
attorney's office and told Haas she had done so. She testified
she later had several conversations with attorney Haas
regarding tests made in connection with the Pointer case. In
one of those conversations, in December, 1981, Haas indicated
that he had not received a copy of the report. In response,
Furlong told Haas to ask the state's attorney if the state's
attorney had received the report and if not, she would send
additional copies. She testified
that she never concealed or attempted to conceal any
information from Mr. Haas.
Attorney Haas does not dispute the substance of his
conversations with Furlong, and, in fact, agrees with
Furlong's testimony regarding those conversations. (Affidavit
of Jeffrey Haas In Support of Plaintiffs' Opposition to the
City Defendants' Motion to Disqualify).
3. Plaintiffs' counsel admits that proving plaintiffs'
allegation that police improperly prompted and encouraged
Purvey Pointer to identify Jones as the perpetrator of the
crimes at the show-up is an "important" issue in the trial.
4. If plaintiffs' counsel can prove the allegations
regarding the show-up identification, plaintiffs' counsel will
not necessarily call Schmeidel to testify regarding the
5. Attorney Schmeidel is a law partner of Taylor and Haas
and will share in any fees earned in this case.
6. Attorney Taylor replaced attorney Schmeidel as one of
plaintiffs' attorneys. (Affidavits of George A. Jones and
George A. Jones, Sr.). Attorney Haas and Attorney Taylor are
currently handling plaintiffs' case for plaintiffs.
(Affidavits of George A. Jones and George A. Jones, Sr.).
7. Plaintiffs have been told about the city's motion to
disqualify plaintiffs' attorneys, yet nonetheless desire
attorneys Haas and Taylor to continue to represent them in
this case. (Affidavits of George A. Jones and George A. Jones,
8. Schmeidel testified in Palmer regarding Monell claims
similar to the claims raised in the instant case. Some of the
testimony was routine and some of the testimony related to the
Jones' identification show-up in Purvey Pointer's hospital
Disqualification of Testifying ...