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Mosley v. City of Chicago

September 22, 2009


The opinion of the court was delivered by: Honorable David H. Coar


Jovan Mosley was arrested and tried for the murder of Howard Thomas. After five years and eight months in the maximum-security wing of Cook County Jail, Mosley was acquitted. He filed this lawsuit under 42 U.S.C. § 1983, arguing, among other things, that the police violated his due-process rights by removing and destroying a lineup report recounting an exculpatory statement by the lineup witness, and by concealing evidence that an onlooker who had identified Mosley as a participant in the attack on Thomas had been intoxicated at the time. The police officer defendants and the City have filed a motion for summary judgment on his § 1983 claims and his claims under Illinois law. For the reasons stated below, the court grants the motion for summary judgment.

I. FACTS*fn1

On August 6, 1999, at approximately 12:45 a.m., Officer Lionel Dunem responded to a battery in progress at 7330 South Calumet Avenue in Chicago, Illinois. Upon arrival, Officer Dunem observed a man (later identified as Howard Thomas) lying motionless in a pool of blood in the parkway outside that address. (R.80, Facts ¶5.) Based on the subsequent August 1999 investigation, the police concluded that Thomas had been beaten to death by a group of three to five black men in their late teens to mid-20s. The investigation led to the arrest and prosecution of the following persons: Frad Muhammad a/k/a Big Muhammad; Lawrence Wideman a/k/a Red; Marvin Treadwell a/k/a Leno and Marlon; and Jovan Mosley a/k/a Jason, Jovizzle, "My Guy," and "Frad's friend." (Id. ¶3.)

Eyewitnesses gave partial physical descriptions of three of the offenders who had beaten Thomas with a baseball bat. (Id. ¶6.) Among the witnesses were Jori Garth and Anton Williams, both teenagers, who had been sitting on the porch of Garth's mother's house at 7324 South Calumet and had seen the attack. (Id. ¶8.) More than six months after the attack, Detectives Clarence Hill and Charles Williams interviewed Garth and Williams. (Id. ¶7.) Detectives Hill and Williams, along with Edward Howard, Jr., Maverick Porter*fn2 , and Derail Easter, were working in the Area 2 violent crimes unit in February and March 2000; they were homicide detectives in the Chicago police department at the time. (Id. ¶2.)

Statements and Testimony of Jori Garth and Anton Williams

In Garth's February 16, 2000 interview, she said that while she and Anton sat on the porch a group of between five and seven men arrived. She recognized one of the men as "Fetta" (Gregory Reed) who came up to the porch and spoke with Garth and Williams. According to Garth, the rest of the group stayed at the foot of the stairs, including a man she recognized as "Marlon" and a light-skinned, tall black man. (Id. ¶9; R. 98, Resp. to Facts ¶9.) Garth told the detectives that while Reed was on the porch, Thomas walked by on the street. Someone said, "there go that motherf---er right there," and members of the group ran toward him and began to attack him. A light-skinned, tall, black man had a baseball bat; he struck Thomas several times on the head. (R. 80, Facts ¶10; R. 98, Resp. to Facts ¶10.) Garth testified by deposition in 2008 that she told the police at some point (it's unclear when) that the man with the bat, along with two black men with braided hair, were the only members of the group who had attacked Thomas.

(R. 98, Resp. to Facts ¶10; Pl.'s Ex. 3 at 30:17-24.)

In Williams's February 16, 2000 interview, he said five men had come to the porch, and that he recognized three of them as Reed, Marlon, and "Big Muhammad." He said he did not recognize the other two. (R. 80, Facts ¶11.) Williams said that when Thomas walked by, members of the group rushed toward Thomas and began attacking him. (Id. ¶12.) Detective Williams testified by deposition, and Detectives Hill and Howard testified by affidavit, that Anton Williams had said that everyone in the group except Fetta had attacked Thomas. (R. 80, Ex. 2 ¶¶17-18; Ex. 3 ¶¶17-25.)

According to Anton Williams's deposition testimony, during the interview he told the detectives that five men, including Mosley, were beating Thomas during the attack. (R. 80, Ex. 15 at 17:20-19:22, 38:22-40:11.) Williams testified that he consistently told detectives that Mosley was part of the group that attacked Thomas, although he could not say exactly what he saw Mosley do. (Id. at 40:22-41:14.) Although he testified that it was possible that he told the detectives that Mosley did not do anything during the attack, he was certain that he did not tell the detectives that Mosley had not participated in any way in the murder; nor did he remember saying that Mosley had not participated in the attack. (Id.; Id. at 43:9-17.) And at his grand-jury appearance and at Mosley's criminal trial, Williams repeatedly testified that Mosley was present at the attack but that Williams did not see Mosley attack Thomas. At his grand-jury testimony, he said that "he didn't see [Mosley] beat [Thomas], but [Mosley] was around the area." (R. 98, Pl.'s Ex. 4 at 9.) At Mosley's trial, he said, "I don't remember [Mosley] really hitting [Thomas] or nothing" (R. 98, Pl.'s Ex.3 at 43) and "I don't remember [Mosley] doing something." (Id. at 81.) However, when Mosley's defense attorney asked him a leading question about his identification of Mosley at a police lineup-"That's the person you identified as having been out there but not having done anything, correct?"-Williams answered, "Correct." (Id.)

Both Garth and Anton Williams said that Fetta ran toward Thomas but came back to the porch, complaining of having been struck by a baseball bat. (R. 80, Facts ¶14.)

Statements of Gregory Reed (a/k/a Fetta)

Detectives and Assistant State's Attorney Victoria Ciszek interviewed Reed on February 18 and 20, 2000. Reed implicated "Red," "Marvin," Muhammad, and "Jason" in the attack. Reed said Jason had hit Thomas a couple of times. (R. 80, Facts ¶16.) Reed testified by deposition in 2008 that he had been "drunk as hell" on the night of the attack and could not recall exactly what had happened. (R. 98, Pl.'s Ex. 7 at 12:16-20.) And he testified that he told the police that he had been drunk on the night of the attack on Thomas. (Id. at 25:2-9, 27:1-6, 29:8-19, 35:1-24.) But Reed testified that the detectives did not tell him what to say or threaten him. (Id. at 28:4-12, 36:5-12, 46:5-7.) According to Reed, he told the detectives what he had heard had happened from other people (including Farad, Red, Marvin Treadwell, Anton Williams, and Garth). (Id. at 29:10-11, 33:17-34:23; 46: 8-15, 47:2-19.) And he told them that his statements were not independent recollections of the events. (Id. at 45:6-11.) He also testified that the detectives told him a version of events before he wrote down his own statement. (Id. at 33:17-34:16.) Specifically, he said that Treadwell had told him that Mosley had been there, and that he had assumed that Mosley had thrown a punch or a kick. (Id. at 47:23-48:12.) And he testified that Red had said that Mosley hit Thomas, and that Anton had said that Mosley threw a punch. (Id. at 49:2-50:10.) Reed testified in his deposition that his written statement contains no mention of the fact that he was too drunk on the night to recall what had happened later, nor that what he was writing he had learned from other people. (Id. at 46:22-51:2.) Reed told the detectives that Red, Marvin, Muhammad, and "Jason" (whom he later identified as Mosley) were involved, and that Jason had hit Thomas a couple of times. (R. 80, Facts ¶16.)

On February 19, 2000, Reed wrote out a detailed account of the attack, identifying "Jason" as the attacker who delivered the "third, fourth, and fifth blows" against Thomas. (Id. ¶17.) Reed was not intoxicated when he was interviewed, nor when he implicated "Jason" in his statement. (Id. ¶18.)

In late October or early November 2005, as Mosley's criminal trial approached, Reed told Assistant State's Attorney Andrew Varga that he had been drinking the night of the Thomas murder, that his written statement had not been based on personal knowledge, and that he could not testify at trial on the basis of personal knowledge. (R. 80, Ex. 12 ¶¶24-26.) ASA Varga did not call Reed to testify at Mosley's trial. (Id.) The record does not indicate whether or not ASA Varga disclosed this information to Mosley's defense attorney before trial.

The Arrests and Prosecutions

Detectives Easter and Williams arrested Frad Muhammad on February 17, 2000. (R. 80, Facts¶15.) On February 20, 2000, in an interview with the detectives, Frad Muhammad implicated Jovan Mosley as a participant in the robbery and beating of Thomas. (Id. ¶21.) In his handwritten statement to ASA Ciszek, Muhammad said Mosley was part of the group but did not say what, specifically, Mosley did during the beating. (R. 98, Pl.'s Ex. 8.)

Lawrence Wideman, a/k/a Red, was arrested on February 19, 2000. (R.80, Facts ¶20.) The next day, in his statement to ASA Ciszek, Wideman said that Mosley had been present during the group's discussions about robbing someone and beating someone up prior to the attack on Thomas, that Mosley was present at the scene of the beating of Thomas, and that he left the scene with the group after the attack and drank a bottle of pop that had been taken from Thomas. (Id. ¶22; Ex. 10 ¶38; Ex. 10b at 5.)

On March 5, 2000, Marvin Treadwell was arrested. (R.80, Facts ¶23.) In interviews with detectives and in a videotaped statement given to Assistant State's Attorney Jeffrey Levine, Treadwell implicated an individual he referred to as "My Guy" and "Frad's friend" as the fifth member of the group involved in the attack on Thomas. Treadwell said that "My Guy," a/k/a "Frad's friend" was one of the men who had hit Thomas. (R.80, Facts ¶24; Ex. 4, ¶¶15-25.)

Mosley was arrested at approximately 4:00 p.m on March 6, 2000. (R. 80, Facts ¶24.) At approximately 11:30 p.m. that same day, Mosley was viewed in a lineup by Garth and Williams, with Detective Hill present. (Id. ¶25). Garth did not identify anyone; Williams positively identified Mosley. (Id.; Ex. 20 ¶¶3-7; Ex. 20a.) At approximately midnight, Detective Hill brought Mosley to the lockup, and this was the last contact, other than in-court appearances, that Mosley had with any of the Defendant Detectives. (R. 80, Facts ¶72.)

On June 19, 2001, Detective Hill prepared a Case Supplementary Report ("the Report") documenting the results of the March 6, 2000 lineup, after discovering that one had not been prepared contemporaneously to the lineup. (Id. ¶¶31, 36; Ex. 3 ¶¶61-64; Ex. 3c.) No other lineup report was prepared by any of the Defendant Detectives. (R. 80, Facts ¶36; Ex. 3 ¶64.) The Report states, "The investigation into the beating, robbery and murder of Thomas [,] Howard revealed that Jovan Mosley participated in that incident." (R. 98, Pl.'s Ex. 3c.) It did not say precisely what Williams identified Mosley as having done. (R. 98, Resp. to Facts, ¶31.) At his deposition, however, Williams agreed that this was a "fair characterization of the results of the lineup." (R. 80, Ex. 15 at 42:3-13.)

By agreement of the parties, Mosley's criminal case was continued from April 2000 to November 2005, while Mosley remained in the ...

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