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United States District Court, N.D. Illinois

March 10, 2004.

DAVTD BOURKE, Plaintiff,

The opinion of the court was delivered by: JAMES ZAGEL, District Judge


On April 16, 1998, plaintiff David Bourke shot and killed Roger Johnson within the Village of Downers Grove, Illinois. Bourke was arrested that same day, and thereafter was formally charged with murder, Defendants Wayne Brucar and N, Scott Conger represented Bourke at his state court criminal jury trial in the Circuit Court of DuPage County, Illinois, The jury found Bourke guilty of first degree murder, and judgment was entered on the verdict on April 27, 1999.

Bourke appealed his conviction to the Illinois Appellate Court through new counsel, and asserted three grounds on appeal: (1) the State had failed to disprove his affirmative defenses of self-defense and prove the elements of first degree murder beyond a reasonable doubt; (2) his conviction should have been reduced to second degree murder; and (3) Brucar and Conger provided ineffetive assistance of counsel. By its order entered August 21, 2001, the Illinois Appellate Court "reverse[d] because [it] conclude[d] that the State did not prove defendant guilty of first degree murder."*fn1 The Court summarized its decision as follows: Page 2


In conclusion, we hold that the State did not disprove beyond a reasonable doubt defendant's claim that he killed Johnson in defense of his person and his dwelling. The State did not prove as unreasonable defendant's account of his struggle with Johnson inside the motel room. Rather, the account was reasonably consistent with the condition of Johnson's and defendant's bodies. Ruling as we do on this issue, we do not reach defendant's remaining arguments that his conviction should be reduced to second degree murder and that his trial counsel was ineffective.
  Bourke now brings this lawsuit, in which he asserts a ยง 1983 claim against the Village of Downers Grove and various of its police officers, alleging that those defendants caused him to have been deprived of a fair trial in the murder case by suppressing exculpatory evidence. Bourke also brings legal malpractice claims against Brucar and Conger, According to Bourke's complaint, he "was erroneously found guilty of murder as a result of one or more of the following acts of malpractice by [Brucar and Conger]"; their "fail[ure] to confer with and present testimony from a crime scene expert;' their "fail[ure] to recognize that a tape recording produced by the prosecution contained gaps of apparent erasures that excluded material that would have been helpful to the defense case," and their "conduct[of the] trial in an incompetent manner in failing to exercise reasonable professional judgment during jury selection, in failing to make any objection to the admission into evidence of unfairly prejudicial photographs, and in failing to make any objection to the use of a tape recording that contained apparent erasures that excluded material that would have persuaded the jury to find plaintiff not guilty." Brucar and Conger move to dismiss the Complaint as to them pursuant to Federal Rule of Civil Procedure 12(b)(6).

  Under Illinois law, a cause of action for legal malpractice arising from representation in a criminal case accrues when the plaintiff's conviction is overturned. Griffin v. Goldenhersh, Page 3 752 N.E.2d 1232, 1239 (Ill. App, Ct. 2001). A plaintiff must plead and prove the following: "(1) an attorney-client relationship; (2) a duty arising from that relationship; (3) a breach of that duty; and (4) actual damages or injury proximately caused by that breach." Woidtke v. St. Clair County, 335 F.3d 558, 562 (7th Cir. 2003). Brucar and Conger argue that Bourke's legal malpractice claim fails because he cannot establish that any purported negligence by his criminal defense counsel proximately caused his first degree murder conviction.

  In his appeal, Bourke advanced an "ineffective assistance of counsel" argument equivalent to his instant claim that movants committed malpractice in representing him.*fn2 However, the Appellate Court never reached the question of whether Bourke's counsel negligently represented him at trial. Instead, after exhaustively recounting the testimony and other evidence introduced at the criminal trial, the Court found that the State had failed to prove Bourke guilty beyond a reasonable doubt because it had failed to disprove that he had killed in self-defense, and that the trial court had erred by not dismissing the charge against him. Accordingly, Brucar and Conger argue that any alleged malpractice, even if true, was not the proximate cause of Bourke's conviction. Instead, they argue, the cause of the conviction was the trial court's error in not dismissing the case based on the State's insufficient case.

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