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Orange v. Burge

September 25, 2008


The opinion of the court was delivered by: James F. Holderman, Chief Judge


On January10, 2003, plaintiff Leroy Orange ("Orange") was pardoned by then-Governor George H. Ryan, after serving nineteen years on death row for a crime Orange says he did not commit. Orange promptly filed a civil rights lawsuit against numerous defendants, including Cook County State's Attorney Richard A. Devine ("Devine"). Orange claims that Devine is liable under 42 U.S.C. § 1983 for depriving Orange of his right to a fair trial and for Orange's wrongful conviction (Count I). Orange also claims under state law that Devine is responsible for false imprisonment (Count VII), malicious prosecution (Count VIII), intentional infliction of emotional distress (Count IX), and conspiracy (Count X).*fn1 Devine's Second Amended Motion for Summary Judgment (Dkt. No. 481) is now before the court. For reasons set forth in the analysis that follows, Devine's motion is granted and all remaining claims against Devine are dismissed with prejudice.


When ruling on a motion for summary judgment, the court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in the non-movant's favor. Omega Healthcare Investors, Inc. v. Res-Care, Inc., 475 F.3d 853, 857 (7th Cir. 2007). The following facts are construed in the light most favorable to Orange.

1. General Background and Underlying Criminal Case On January 11, 1984, four individuals were murdered at an apartment in Chicago. (Def.'s R. 56.1(a)(3) Stmt. ¶ 12.) Orange was arrested for the murders on January 12, 1984, and transported to Area 2 headquarters for questioning. (Id. ¶ 13.) On January 12 and 13, 1984, while being interrogated, Orange was tortured with electric shock, "bagged," and beaten by Area 2 Commanding Officer Jon Burge ("Burge") and certain police officers serving under Burge, with the knowledge of Assistant State's Attorney Dennis Dernbach ("Dernbach").*fn2 (Pl.'s R. 56.1(b)(3)(C) Stmt. ¶ 47.) Eventually, Orange gave a false statement to Dernbach, confessing to the murders. (Id. ¶ 48; Def.'s R. 56.1(a)(3) Stmt. ¶ 14.)

On May 24, 1985, Orange was convicted on multiple counts arising from the four murders and sentenced to death. (Def.'s R. 56.1(a)(3) Stmt. ¶ 15; 1st Am. Compl. ¶ 39.) On appeal, the Supreme Court of Illinois affirmed the majority of Orange's convictions and his sentence. (Id. ¶ 16; People v. Orange, 521 N.E.2d 69 (1988) ("Orange I").)

Orange filed a petition for post-conviction relief, alleging inter alia that he was the victim of torture at Area 2. (Def.'s R. 56.1(a)(3) Stmt. ¶ 17.) Orange's post-conviction petition was dismissed by the trial court without an evidentiary hearing. (Id. ¶ 18). On appeal, the Supreme Court of Illinois found that Orange's trial counsel was not ineffective for failing to investigate Orange's allegations of torture and, alternatively, that Orange was not prejudiced because the evidence before the court did not corroborate Orange's allegations of torture. (Id.; People v. Orange, 659 N.E.2d 935 (Ill. 1995) ("Orange II").) The court remanded the amended petition for purposes of determining whether Orange received ineffective assistance of counsel during his capital sentencing hearing. (Def.'s R. 56.1(a)(3) Stmt. ¶ 19.) Before the proceedings in the trial court were concluded, Governor Ryan pardoned Orange on January 10, 2003.*fn3

2. Devine's Involvement with the Orange Case Devine served as First Assistant State's Attorney of Cook County from 1980 to 1983

(Def.'s R. 56.1(a)(3) Stmt. ¶ 10.) In 1983, Devine left the Cook County State's Attorney's Office. (Id. ¶ 11.) During the period of 1984 through 1988, the time of Orange's arrest, interrogation, trials, and direct appeal, Devine was not employed by the Cook Count State's Attorney's Office. (Id. ¶¶ 11, 32.)

Devine was in private practice at the Foran law firm from late 1983 through 1985, when he joined the law firm of Phelan, Pope & John as a partner. (Pl.'s R. 56.1(b)(3)(C) Stmt. ¶ 53.) William Kunkle ("Kunkle"), who served as Chief Deputy of the Cook County State's Attorney's Office during the time Devine was First Assistant State's Attorney, also joined Phelan, Pope & John as a partner in 1985. (Id. ¶¶ 3, 53.) While at Phelan, Pope & John, Kunkle was retained as a special state's attorney to retry the Wilson criminal case.*fn4 (Id. ¶ 55.) Kunkle was also engaged, in 1988, as special corporation counsel by the City of Chicago to defend the individual Area 2 defendants, including Burge, against Wilson's allegations of civil rights violations arising from his alleged torture at Area 2. (Id. ¶ 60; Def.'s R. 56.1(a)(3) Stmt. ¶ 41.) Kunkle later represented Burge and other Area 2 officers in administrative proceedings before the Police Board. (Pl.'s R. 56.1(b)(3)(C) Stmt. ¶ 81.) The money billed by Kunkle for these services went into a general fund at Phelan, Pope & John, from which the partner's draws were paid. (Id. ¶¶ 56, 79, 81.)

Kunkle was the lead attorney for Phelan, Pope & John on the Wilson civil case. (Def.'s R. 56.1(a)(3) Stmt. ¶ 43.) In his capacity as lead attorney, Kunkle supervised a team of approximately twenty-five lawyers and paralegals. (Id.) Kunkle's team billed a total of 4,960.75 hours over a period of more than four years for work performed on the Wilson civil case. (Def.'s R. 56.1(a)(3) Stmt. ¶ 61.) Devine did not file a written appearance as an attorney of record in the Wilson civil case, nor did he sign or file any pleadings, motions, or memoranda with the court in connection with the Wilson civil case. (Id. ¶¶ 45, 49, 57, 58.) With regard to the Wilson civil case, Devine did not:

(1) take part in any confidential client meetings with the City of Chicago or any Area 2 police defendants, (Id. ¶ 51), (2) have any phone conversations with Burge,*fn5 (Id. ¶ 52), or (3) attend the trial. (Id. ¶ 53.) Kunkle testified at his deposition that he did not discuss confidential or privileged matters relating to the underlying facts or allegations of the Wilson civil case with Devine. (Id. ¶ 54.)

Even so, Devine did have some involvement with the Wilson civil case. On one occasion, when Kunkle was out of town, Devine appeared in court to secure a continuance in the case. (Id. ¶ 60.) Devine also discussed "matters to be filed," federal court procedures, and jury selection with members of the trial team. (Pl.'s R. 56.1(b)(3)(C) Stmt. ¶ 63.) Devine and Kunkle both stated that Devine's participation in the Wilson civil case was limited to procedural issues, and Devine recalled reviewing and commenting on court filings. (Def.'s R. 56.1(a)(3) Stmt. ¶¶ 59, 60.) Kunkle recalled that he discussed strategy with Devine insofar as it related to federal procedures such as 404(b) prior bad acts and severance, and Phelan, Pope & John's timesheets reflect that Kunkle met with Devine to discuss "handling and strategy." (Pl.'s R. 56.1(b)(3)(C) Stmt. ¶¶ 70-71.) In total, over an 11-month period, Devine billed 24.5 hours on the Wilson civil case.*fn6 (Id. ¶ 63.)

From 1993 to 1996, Phelan, Pope & John was also paid by the City of Chicago to represent Area 2 police officers in three other lawsuits brought by victims of alleged police torture. (Id. ¶ 86.)

Although Kunkle was the billing partner for Phelan, Pope & John on the Wilson civil case, (Def.'s R. 56.1(a)(3) Stmt. ¶ 43), in February of 1995, the City sent several fee checks for services rendered in defending the Area 2 civil rights cases directly to Devine. (Pl.'s R. 56.1(b)(3)(C) Stmt. ¶ 87.)

In December 1996, Devine left Phelan, Pope & John to become the elected State's Attorney for Cook County. (Def.'s R. 56.1(a)(3) Stmt. ¶ 9.) As State's Attorney, Devine initiated a review of all claims alleging abuse at Area 2. (Id. ¶ 75.) Devine's assistants and an outside consultant (whom Devine retained to perform a separate review) concluded that the statute of limitations would bar any prosecution of these claims. (Id.) Because of the time bar, Devine did not initiate a substantive investigation into whether a pattern of torture existed at Area 2. (Pl.'s R. 56.1(b)(3)(C) Stmt. ¶ 91.)

At the time Devine became State's Attorney, Orange's second post-conviction petition was pending in the Illinois courts, and Orange had not yet been pardoned. Devine discussed Orange's case, as well as other cases in which criminal defendants claimed to have been tortured at Area 2, with his assistants and supervisors. (Pl.'s R. 56.1(b)(3)(C) Stmt. ΒΆ 91.) Ultimately, based on the advice he received, Devine concluded that there was insufficient evidence showing that Orange, or any other defendant in the ongoing matters, had been tortured. (Id.) Devine had ...

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