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Bourke v. Village of Downers Grove

May 29, 2009


The opinion of the court was delivered by: James B. Zagel United States District Judge

Judge James B. Zagel



Plaintiff filed a complaint for a civil action arising under 42 U.S.C. § 1983 against employees of the Village of Downers Grove Illinois for allegedly suppressing exculpatory evidence in a criminal homicide trial that resulted with a jury finding Plaintiff guilty of first degree murder. In his complaint, Plaintiff also asserted a supplemental state law claim of legal malpractice against Defendants, attorneys who represented him at trial. Defendants now move for summary judgment. For the following reasons, Defendants' Motion for Summary Judgment is granted.


The facts in this case are largely undisputed. On April 16, 1998, in the Village of Downers Grove, Plaintiff Bourke shot and killed Roger Johnson. He was arrested that same day and was later charged with murder. Plaintiff retained Defendants to represent him at trial. During the week-long jury trial, on behalf of Bourke, Defendants presented affirmative defenses of use of force in defense of a person, 720 ILCS 5/7-1 (West 1998) and use of force in defense of a dwelling (720 ILCS 5/7-2). Bourke was found guilty of first-degree murder and sentenced to twenty-five years in jail. The presiding judge denied his motion for a new trial stating "I don't feel there is any basis for me to usurp the jury's finding of fact in this case[.]" Bourke appealed his conviction, arguing that (1) the State failed to disprove his affirmative defense and prove the elements of first-degree murder beyond a reasonable doubt, (2) his conviction should be reduced to second-degree murder, (3) he received ineffective assistance of counsel where counsel failed to strike two prospective jurors, move to exclude photos and recordings, and object to several of the State's remarks during closing argument. The Illinois Appellate Court reversed Plaintiff's conviction on the ground that the State failed to disprove Plaintiff's affirmative defense claim beyond a reasonable doubt. The court did not reach the other arguments put forth by Bourke.

In his civil complaint, Plaintiff alleges that he was wrongly convicted as a result of Defendants' (1) failure to present testimony from a crime scene expert who would have rebutted the State's reading of the evidence, (2) stipulation to the admission of a tape recording that contained "gaps of apparent erasure," and excluded evidence that would have helped Plaintiff's case, (3) failure to exercise professional judgment in selecting the jury, to object to the admission of prejudicial photographs, and to object to the use of the aforementioned tape recording. Plaintiff has since limited his case to the single claim of malpractice arising from allegations that Defendants failed to exercise reasonable professional judgment in choosing a jury.

The voir dire and jury selection took place on April 20, 1999. Defendant was present and seated with his attorneys. Before Defendants questioned the jury pool, the State exercised two peremptory challenges, and asked to strike Juror No. 193 for cause -- a request that was denied. The court conducted its own voir dire and as a result excused two prospective jurors.

During their own voir dire, Defendants introduced several issues relevant to Bourke's case -- the case involved self-defense, a gun was involved in the homicide, Bourke was the cause of a violent death, and that he lived in a "transient motel." Juror No. 9, a chemist, expressed concerns about firearms. Defendants asked the juror if he felt he could put those feelings aside and judge Bourke fairly, to which he responded "I think so." Juror No. 193 had some difficulty understanding English, and had trouble with one of the questions Defendants posed to her -- whether she would be able to judge Bourke fairly and hold the State to its burden, notwithstanding the violent nature of the crime. Defendants repeated the question in a different form and asked if the juror understood. She replied that she did, and then answered positively.

Defendants consulted with Bourke and decided not to exercise any peremptory challenges. Jurors No. 9 and No. 193 were chosen as part of the panel, although Juror No. 193 was excluded during the trial and replaced by an alternate. Plaintiff makes no allegations of any jury misconduct, nor does Plaintiff claim to know what would have resulted had any of the jurors been eliminated by peremptory challenge.


Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of triable fact exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Pugh v. City of Attica, Ind., 259 F.3d 619, 625 (7th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

Once the moving party has set forth the basis for summary judgment, the burden then shifts to the nonmoving party who must go beyond mere allegations and offer specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The nonmoving party must offer more than "[c]onclusory allegations, unsupported by specific facts" in order to establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)). A party will be successful in opposing summary judgment only if it presents "definite, competent evidence to rebut the motion." EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000). I consider the record in the light most favorable to the nonmoving party, and draw all reasonable inferences in the non-movant's favor. Lesch v. Crown Cork & Seal ...

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