The opinion of the court was delivered by: ROBERT W. GETTLEMAN
This matter is before the court on defendants' petition for a rule to show cause why plaintiff Willie Wilson should not be held in contempt of court for procuring and suborning alleged perjured deposition testimony and an alleged perjured affidavit. The court has reviewed the papers submitted by the parties and has held an evidentiary hearing on the petition. Because of the serious nature of the charges raised by defendants, and the fact that these charges involve alleged complicity by one or more of plaintiffs' attorneys, the court will address the issue in detail.
On February 2, 1993, plaintiffs Willie and Barbara Wilson filed this action against the defendant police officers, claiming damages arising from an alleged unlawful detention of Willie Wilson by the officers and others (the "Incident"). As alleged by plaintiffs, Mr. Wilson, who is African American and a correctional officer at the Federal Metropolitan Correctional Center in Chicago, was driving his late model Cadillac through Tinley Park, Illinois, when he was stopped by the police and detained while the police determined whether Mr. Wilson's car was stolen. It is uncontested that Mr. Wilson was in fact stopped, weapons were drawn, and Mr. Wilson was handcuffed, put in a squad car and detained while the check was made. Mr. Wilson claims that he was injured while being handcuffed, and that officer Steven Vaccaro put a gun to his head during the process. Mrs. Wilson joins the claim, alleging loss of consortium.
In July 1994, defendants' attorneys took Mr. Wilson's deposition. Based in part on Wilson's inability to identify the individual officers involved in the Incident and on alleged admissions made at this deposition, as well as legal arguments justifying the defendants' conduct, defendants filed a motion for summary judgment. In an effort to respond to that motion, Wilson moved to compel the production of photographs of the individual officers named in the complaint so he could show them to an alleged witness. In support of the motion to compel, Wilson submitted an affidavit by Steven Kocsak, the person who allegedly witnessed the Incident, and whose name had been disclosed in plaintiffs' answers to defendants' interrogatories filed in December 1993. Kocsak's affidavit stated that he witnessed the Incident and that he believed that could identify officers Nykaza and Kachlik and Sergeant Koschinitzky as being present and participating in the Incident.
The motion to compel was denied by Judge Lindberg (to whom this case was originally assigned), but defendants took Kocsak's deposition prior to any further briefing on the summary judgment motion. At this deposition, Kocsak again confirmed plaintiffs' version of the Incident, and identified various police officers who allegedly took part in the Incident through the identification of a series of photographs provided by defendants. During this deposition, Kocsak also testified that one Christopher Messina was with Kocsak at the time he witnessed the Incident, and further stated that he (Kocsak) did not know the whereabouts of Mr. Messina, but would attempt to locate him. (It is undisputed that this testimony was false, as will be discussed in more detail below.) Wilson relied upon Kocsak's deposition in his response to the motion for summary judgment.
The motion for summary judgment was referred to Magistrate Judge Bobrick for a report and recommendation. Judge Bobrick, after reviewing the motion papers in the light most favorable to plaintiffs (i.e., accepting plaintiff's version of the facts as true), recommended that the motion be granted as a matter of law. Plaintiffs timely filed objections to Judge Bobrick's report and recommendations. Those objections were again based in part upon Kocsak's deposition testimony.
MOTILL'S AND MESSINA'S STORY
Motill and Messina had been living together as platonic roommates since at least August 1994. Kocsak, who was a close childhood friend of Messina, also lived with them for at least part of this time. Kocsak and Messina, both of whom are in their mid-twenties, have been in trouble with the law throughout most of their lives, and have had numerous run-ins with the Tinley Park police. They often worked together as mechanics for various employers on the suburban southwest side of the Chicago area, and in the late summer and early fall of 1994 were living together (along with Motill) in Cicero, Illinois. Messina was at that time on probation, having pled guilty to a possession of cannabis charge in state court. In or around December 1994, the three moved to Schererville, Indiana, apparently in order to get away from the problems that plagued them while they were living in Cicero and other Illinois venues.
According to Motill and Messina, in June 1994 Kocsak told Messina that he (Kocsak) had been cooperating with plaintiff Willie Wilson to help Mr. Wilson in this case. Kocsak, who allegedly admitted to Motill and Messina that he had not been present or otherwise witnessed the Incident, told them that he was going to testify that he witnessed the Incident, in return for which Wilson would share part of the proceeds that Mr. Wilson expected to recover in this action. Kocsak also solicited Messina to join him as a witness so that they could share in these expected proceeds together.
Messina has testified that he never agreed to become a false witness in this case, and continually "blew off" Kocsak's, and later Mr. Wilson's, attempts to conscript him into the scheme. Nevertheless, Messina claims to have had many conversations with both Kocsak and Wilson, including a number of meetings at Mr. Wilson's house, at which the alleged scheme was discussed. According to Messina and Motill, Kocsak talked about this matter constantly. At one point Mr. Wilson requested Motill also to become a false witness, which proposal she flatly rejected.
Messina also testified that on several occasions Mr. Wilson promised to buy Messina and Kocsak a garage from the proceeds he expected to receive as a result of this case (Motill remembers one such conversation). Kocsak also mentioned this promise on a number of occasions in attempting to solicit Messina to join the conspiracy. Messina and Motill also testified that prior to Kocsak's deposition Mr. Wilson told Kocsak in their presence how to identify the defendant police officers from photographs Mr. Wilson expected to be produced at Kocsak's deposition, and that Mr. Wilson, who would attend the deposition, would use hand signals to help Kocsak in this regard.
In September 1994 Messina and Motill accompanied Kocsak to downtown Chicago where he gave his deposition at the offices of Martin Dolan, attorney for some of the defendants. The three first went to the offices of plaintiffs' counsel, Gordon & Gordon, Ltd., where Kocsak met briefly with attorney Robert Gordon outside of Motill's and Messina's presence. Mr. Wilson was also present at Gordon's office. David Centracchio, an associate at Gordon & Gordon, ...