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BOURKE v. VILLAGE OF DOWNERS GROVE
March 10, 2004.
DAVTD BOURKE, Plaintiff,
VILLAGE OF DOWNERS GROVE, et al, Defendants
The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
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:
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 § 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,
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 ...
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