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Palmer v. City of Chicago

February 15, 1985

REUBEN PALMER, ET AL., SUBCLASS A PLAINTIFFS-APPELLEES, AND EDWARD NEGRON, ET AL., SUBCLASS B PLAINTIFFS-APPELLEES,
v.
CITY OF CHICAGO, RICHARD BRZECZEK, COMMANDER MILTON DEAS, AND RICHARD M. DALEY, ET AL., DEFENDANTS-APPELLANTS



Author: Coffey

Before WOOD, CUDAHY, and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

The City of Chicago and the County of Cook, Illinois appeal the entry of a preliminary injunction requiring the Chicago Police Department and the Cook County State's Attorney's Office to revamp their internal procedures for the recording, maintaining, and production of investigative files. We reverse and remand this case to the district court with instructions to limit the preliminary injunctive relief to the preservation of "street files" now in existence for criminal defendants convicted of felonies in the Cook County Circuit Court.

I

The record reveals that in May 1981, the Cook County State's Attorney's Office charged George Jones, an eighteen year old high school honor student, with the rape and first-degree murder of thirteen year old Sheila Pointer and the aggravated battery of Sheila's ten year old brother Purvey Pointer. Jones pled not guilty, and in preparation for trial, the defense counsel served four separate subpoenas upon the Recordkeeper of the Chicago Police Department ("CPD"). One subpoena, in particular, requested:

"Any and all police reports, arrest reports, photos, supplementary reports, witness statements, inventory slips, reports of the results and any scientific tests conducted on any physical evidence, or written memorandum of any kind concerning an incident that took place at 702 West 117th Street, Chicago, Ill. on May 4,1981 wherein Purvey Pointer, Jr., was allegedly beaten and Sheila Pointer was killed." In addition, the defense filed a motion for discovery with the Cook County State's Attorney's Office, asking that it produce, inter alia:

"Any material or information which tends to negate the guilt of the accused as to the offense charged or would tend to reduce his punishment therefor, and any other material or information favorable to the accused which should be produced according to Brady v. Maryland, 3737 [sic] U.S. 83 [373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 ] (1963), and subsequent cases."

The defense counsel received oral assurances from the members of the CPD and the State's Attorney's Office that their respective offices had complied with the subpoenas and discovery request. The record reveals, however, that when the defense counsel subpoenaed Purvey Pointer's hospital record, he learned for the first time that on May 11, 1981, CPD officers Kelly and Binkowski had shown Purvey a picture of George Jones, while Purvey was confined in his hospital room. The following day, Purvey, while still confined, positively identified Jones as the assailant.*fn1 Upon discovery of this photo display, the defense counsel immediately filed another motion, requesting the complete production of "all statements, notes of interviews, memorandums, reports or written records of any kind regarding any and all interviews conducted of any person in connection with the investigation of this case." In response, the Cook County State's Attorney's Office transmitted a one-page memo obtained from the CPD's files, describing Purvey Pointer's reaction to the photograph of George Jones. According to the memo:

"The photo of George Jones was also shown to Purvey [sic] and when asked if he knew this person he said yes but gave no response when asked if he were [sic] the offender. . . . He kept trying to say a last name but no one was able to ascertain what it was. It sounded like Anderson-Henderson-Harrison."

When Jones' murder trial commenced in April 1982, the prosecution expressed an intent to seek the death penalty for Jones. As the trial unfolded, the prosecution called Purvey Pointer to the witness stand and he positively identified George Jones as the assailant. This testimony concerning the identification of Jones appeared in the Chicago Tribune and caught the attention of Detective Frank Laverty, a member of the CPD's violent crimes unit who participated in the original investigation of the Sheila Pointer homicide. Purvey's testimony directly conflicted with Laverty's theory of the case, which he had presented to his supervisors in October 1981, that a Lester Pique was the assailant. After reading the newspaper article, Laverty immediately contacted the defense counsel and informed him that "he had written . . . two reports -- two separate memos on two separate occasions" concerning the investigation of Sheila Pointer's death. The defense counsel had not received either of these reports in response to the subpoenas served upon the CPD or the discovery motions filed with the Cook County State's Attorney's Office. As a result, the defense counsel not only subpoenaed the specific reports, but called Laverty to the witness stand and examined him in the presence of the state court judge.

Laverty related the content of one report in which Purvey Pointer stated, "George's name is George Anderson, . . . he is the leader or a member of the "Pirate" gang, because he wears the cap with the P on it, and . . . he lurks in the vicinity of the Pullman School with other gang members." In the other report, Laverty asked Lester Pique, who had confessed to the murder and rape of a Sharon Hudson in July 1981, "if he was the offender in the Pointer homicide and he stated that he might have been but that he blacked out and couldn't remember." Laverty's report further noted that according to lab tests, Pique's hair was "similar" to the hair samples found in the Pointer home and that Pique was able to accurately describe the lead pipe murder weapon used in the Pointer homicide. Based upon this information, Laverty's report concluded that Lester Pique "is the offender with a 2nd person in [the] Pointer homicide and that the person charged is a case of mistaken identity." Laverty presented this information to his commanding officers in October 1981, requesting that Pique be placed in a lineup, but the supervisors responded that "Purvey Pointer's condition would not be such that he could view a lineup. . . ."

Following Laverty's testimony in the state trial court, the defense counsel served a subpoena in the Area 2 Watch Commander of the CPD,*fn2 this time requesting:

"Any and all record reports, supplementary reports, notes, memos and written reports, records of any kind, including but not limited to any watch investigator file or area #2 file or area #2 general files or reports concerning the Sheila Pointer homicide. R.D. #C-160031. Said homicide occurred on 5-4-81 at 702 W. 117th St., Chgo, Illinois."

In response, the CPD produced a "street file" consisting additional memos not previously submitted to the defense counsel in response to their earlier subpoenas and discovery motions. In light of this previously undiscovered evidence contained in the CPD's "street file," the state trial judge granted the defendant's motion for a mistrial and the Cook County State's Attorney's Office entered a plea of nolle prosequi (Lat: "will no further prosecute").*fn3

On April 16, 1982, following the uncovering of the CPD's alleged practice in the Jones case -- to maintain unofficial "street files" that were not transmitted to defendants in response to subpoenas or discovery requests -- the plaintiffs filed a class action, civil rights lawsuit under 42 U.S.C. ยง 1983 against the City of Chicago and Cook County, Illinois.*fn4 The plaintiff class consisted of seven named plaintiffs in subclass A, in their individual capacity and on behalf of those similarly situated, that were "convicted [of felonies] after trial or plea of guilty in Cook County and sentenced to probation or imprisonment in the custody of the Illinois Department of Corrections." n.5 (footnote omitted) The plaintiff class also included eleven named plaintiffs in subclass B who were "charged with felonies and awaiting trial in the Circuit Court of Cook County, Criminal Division." The plaintiffs alleged that the defendants, acting through the CPD and the Cook County State's Attorney's Office, were:

"continuing their policy and practices of concealing basic investigative working files, known as "street files," "running files," or "office files," in order to restrict and prevent the flow of exculpatory evidence to criminal defendants, in spite of the Constitutional requirements of Brady v. Maryland, 373 U.S. 83 [83 S. Ct. 1194, 10 L. Ed. 2d 215] (1963) and the discovery rules of the Illinois Supreme Court (Ill.Rev.Stat. ch. 38, Sec. 110-A, S. Ct. Rules 412, et seq.)."

According to the plaintiffs' complaint:

"This intentional double file system maintained by the Defendants as a matter of policy violated the discovery rules of the Illinois Supreme Court, and, additionally, deprived the Plaintiffs and the sub-classes they represent of their rights to a fair trial and to be free from a deprivation of life, liberty and property without due process of law as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. Sec. 1983, et seq."

The plaintiffs requested that the district court enter a declaratory judgment, finding that the defendants' alleged policy and practices violate the plaintiffs' due process rights under the Fifth and Fourteenth Amendments and their right to a fair trial under the Sixth and Fourteenth Amendments of the United States Constitution. In addition, the plaintiffs asked the district court to permanently:

"enjoin the policy and practice of Defendants of suppressing exculpatory and discoverable material through the maintenance of a double file system and manipulation of lab reports and illicit restrictions on police interviews, and order that all reports and memorandum be made part of one permanent file subject to proper discovery and production."

The plaintiffs further asked that the district court enter an order preserving the CPD's existing "street files" for future production in the plaintiffs' state court post-conviction actions and award damages to compensate the plaintiffs for their alleged injuries.

On April 20, 1982, some four days after the filing of the plaintiffs' complaint, Judge McMillen of the United States District Court for the Northern District of Illinois, granted the plaintiffs' request for a temporary restraining order. Judge McMillen ruled that the "defendants . . . shall preserve intact all police departments investigative, office or working files, some known as "street files," together with all of the contents of such file, and all other papers and documents belonging in such files. . . ." That same day, CPD Superintendent Richard Brzeczek issued a teletype order to all his commanding officers:

"Effective immediately as a result of a temporary restraining order issued by federal district court judge Thomas R. McMillen, the contents of all police department investigative files known as office, unit, or working files and sometimes referred to as "street or running" files will be kept intact. No documents, materials, or notes shall be removed from these files."

In addition, the CPD issued Detective Division Notice 82-2, which, by its express terms:

"mandates that all current unit investigative files be preserved intact.

prohibits the permanent removal, destruction, or alteration of any unit investigative report or file by any sworn or civilian member of the Department.

establishes procedures for Detective Division members to insure unit investigative files are properly preserved and controlled."

Although the CPD complied with the court's order and preserved the "street files" in existence at the time of the temporary restraining order, the evidence revealed that detectives were considering certain notes and "to-from" memos, drafted in cases still under investigation, "as their personal property . . . and therefore as outside the preservation requirements of Notice 82-2." Palmer v. City of Chicago, 562 F. Supp. 1067, 1072 (N.D.Ill.1983). As a result, on September 27, 1982, Judge McMillen amended the temporary restraining order and directed that "the defendants . . . shall preserve intact all police investigative, office or working files, some known as "street files," together with all of the contents of such files, and all other papers and documents formally put in such files. . . ." (Emphasis added.)

The following day, September 28, 1982, Judge McMillen withdrew from the case due to a docketing conflict and the case was reassigned to Judge Shadur, who scheduled a hearing on the plaintiffs' motion for a preliminary injunction.*fn6 The plaintiffs requested that the district court grant preliminary injunctive relief:

"restraining the Defendants from continuing the policy and practice of maintaining and using separate, confidential police investigative files, sometimes known as "street files," for the purpose of withholding or inhibiting the flow of reports, documents and other materials which are exculpatory or otherwise useful or favorable to the Defendants in criminal cases in Cook County; and directing preservation, inventory and production where necessary of all such investigative or "street files."

In sum, the plaintiffs sought preliminary injunctive relief to (a) prevent the defendants from continuing their alleged practice of withholding exculpatory evidence contained in "street files"; and (b) preserve all existing "street files." A six-day evidentiary hearing was conducted in the district court and based upon the evidence presented, Judge Shadur found that the detectives within the CPD's violent crimes unit "record the results of their investigations in documents that may be classified in two categories, "Unofficial Reports' and "Official Reports." Id. at 1069. According to the court, the unofficial reports consist of detectives' notes, typewritten witness statements or interviews, and major crime incident work sheets, all prepared contemporaneous with the detectives' obtaining of the information. These unofficial reports are commonly referred to as "street files," "running files," or "office files." In contrast, the official reports consist of "standardized incident, opening, supplementary and closing reports" that are typed, marked with the Record Division number assigned to the investigation, and subsequently transmitted to the CPD's Record Division headquarters. Id. at 1070.

At the preliminary injunction hearing, the City of Chicago contended that:

"The policy of the Chicago Police Department has been that all official reports prepared in accord with a violent felony investigation must be complete and accurate; that is, such reports must contain all information known to the preparer(s) ...


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