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December 12, 1984


The opinion of the court was delivered by: Nordberg, District Judge.



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 conspiracy claims.


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 Furlong.

In addition, the City points to another reason indicating that plaintiffs' attorney Schmeidel should testify for Jones. The plaintiffs' attorneys are currently prosecuting a Monell policy and practice claim against the City, Palmer v. City of Chicago, No. 82 C 2349. Plaintiffs unsuccessfully tried to have the Palmer case related to the Jones case, stating that the Monell policies, practices and customs claim and the malicious prosecution claim of Palmer are factually and legally similar to those same claims as raised in Jones. In Palmer, attorney Schmeidel testified as a witness to the Monell policy claims and the malicious prosecution claim. The City suggests that, since the same issues that Schmeidel testified to in Palmer are now raised again in Jones, Schmeidel ought to testify to these same issues in Jones. The City argues that because Schmeidel and Haas are witnesses to all of the foregoing events, they are barred from also acting as attorneys in the case under the advocate-witness rule. The rule generally prohibits a lawyer from appearing as a witness and advocate in the same proceeding.

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 show-up.

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, Sr.)

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 room.


Disqualification of Testifying ...

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