The opinion of the court was delivered by: Judge Joan H. Lefkow
John Burge, once a Commander within the Chicago Police Department, has been charged with one count of perjury in violation of 15 U.S.C. § 1621(1)andtwo counts of obstruction of justice in violation of 18 U.S.C.§ 1512(c)(2), arising from submitting allegedly false answers to interrogatories propounded in a civil rights case tried in this court, Hobley v. Jon Burge, et al., No. 03 C 3678. In Hobley, the plaintiff alleged that Burge and others physically coerced, abused and tortured him to extract a confession from him in a criminal case. Burge submitted interrogatories denying torture and the knowledge of torture by others under his command at Area Two. This Opinion assumes familiarity with the facts surrounding the case, as set out in this court's Memorandum Opinion and Order dated April 23, 2009 (Dkt. No. 31).
In the April 23 ruling, the court granted the government's motion to admit the testimony of Andrew Wilson, now deceased, who had testified in prior proceedings that Burge had physically coerced, abused and tortured him and knew that other Chicago police officers had done the same.*fn1 The ruling was based on Federal Rule of Evidence 804(b)(1), which permits the admission of qualifying sworn testimony of an unavailable witness. Seeking what he perceives as fair reciprocity, Burge has moved to admit the testimony of two now deceased police detectives, John Yucaitis and Patrick O'Hara, who testified in prior proceedings involving Wilson at which they denied knowledge of torture inflicted on Wilson and at which Yucaitis denied engaging in such conduct (O'Hara was not charged with engaging in torture of Wilson). Burge relies on the residual exception to the hearsay rule, Federal Rule of Evidence 807. The government opposes the motion on the basis that the proffered evidence does not meet the threshold qualifications of admissibility under the rule. For the reasons stated below, Burge's motion  will be denied.
Rule 807, as pertinent here, provides as follows:
A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
Fed. R. Evid. 807. The threshold requirement of Rule 807 is a determination that the statement is not specifically covered by Rules 803 or 804. This testimony is specifically within the ambit of Rule 804(a)(4) as both witnesses are "[u]nable to be present or to testify at the hearing because of death." Burge cannot argue, however, that the testimony is admissible under 804(b)(1) because the testimony does not meet the requirement that the party against whom it is now offered (the government) "had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." Fed. R. Evid. 804(b)(1). Although this missing link is intended to protect the right of confrontation, a right the government does not have, the government argues it is entitled to the protections of the hearsay rules in order to ensure a fair trial, and admission of this testimony would cause an unfair trial. See United States v. Doerr, 886 F.2d 944, 957 ("Although the hearsay rules and the confrontation clause stem from the same root, the two are not equivalent." (citations omitted) (internal quotation marks omitted)); United States v. Bradley, 145 F.3d 889, 896 (7th Cir. 1998) (reasoning that the trial court's admission of hearsay under the residual exception of Rule 804(b)(5), now Rule 807, was not an abuse of discretion; admission served the general purposes of the Rules of Evidence and the interests of justice because it "help[ed] to assure theintegrity of the fact-finding process and secure the public's interest in the disclosure of reliable, probative evidence . . . ."); United States v. Hooks, 848 F.2d 785, 796 (7th Cir. 1988)("Out-of-court statements are generally inadmissible because they are presumed to be unreliable."); Akrabawi v. Carnes, Co., 152 F.3d 688, 697 (7th Cir. 1998) (District courts are to "narrowly constru[e] the residual provision to prevent it from becoming the exception that swallows the hearsay rule." (citations omitted)).
The criterion primarily in dispute is trustworthiness, that is, "whether the proffered hearsay possesses indicia of reliability 'equivalent' to the indicia of reliability supporting the traditional exceptions. . . ." Doe v. United States, 976 F.2d 1071, 1075 (7th Cir. 1992). Burge relies on United States v. Hall, 165 F.3d 1095 (7th Cir. 1999), to identify relevant criteria in evaluating trustworthiness. There, the court stated the proponent of the hearsay evidence must rebut the presumption of unreliability by appropriate proof of trustworthiness, id. at 1110, and enumerated some non-exclusive factors a district court should take into account when evaluating the trustworthiness of a hearsay statement:
In determining whether a statement is sufficiently reliable for purposes of [the residual exception], a court should examine, among other factors: (1) the probable motivation of the declarant in making the statement; (2) the circumstances under which it was made; and (3) the knowledge and qualifications of the declarant. [Other relevant factors may include] (1) the character of the declarant for truthfulness and honesty and the availability of evidence on the issue; (2) whether the testimony was given voluntarily, under oath, subject to cross examination and a penalty for perjury; (3) the extent to which the witness' testimony reflects his personal knowledge; (4) whether the witness ever recanted his testimony; and (5) whether the declarant's statement was insufficiently corroborated.
Id. at 1110-11 (citations omitted) (internal quotation marks omitted). It goes without saying that the witnesses had personal knowledge and, if available, would be qualified to testify on Burge's behalf. There is no evidence in the record as to the witnesses' respective character for truthfulness or the availability of evidence to establish such character, so this factor is disregarded here.
Concerning their motivation and the circumstances surrounding the testimony, Burge concedes that O'Hara and Yucaitis knew they would lose their jobs if they admitted the wrongdoing alleged but argues that the oath and cross-examination counterbalance this negative factor. He points out that the witnesses were consistent in their testimony throughout five separate examinations and were robustly cross-examined each time by individuals who had the same motive to test the veracity of the testimony as does the prosecutor here. Moreover, two juries returned a defense verdict in favor of O'Hara and Yucaitis in the Wilson trials, which Burge contends indicate that they were credible witnesses. He adds that the witnesses were career police officers without criminal records.
The government cites United States v. Wright, 363 F.3d 237, 246 (3d Cir. 2004), as an illustration that courts should be skeptical of exculpatory statements made by alleged co-schemers. There the defendant sought admission under Rule 807 of a co-schemer's statement to his attorney that tended to exonerate the defendant. The court of appeals upheld the district court's determination that although an unavailable witness's confidential statements to his attorney indicated reliability, other circumstances were contrary, including that the statements were not under oath, there was no penalty for his lying to his attorney, and the witness's self-serving statements were made at a time when he knew he was under investigation and had a motive not to tell the truth. Id. at 245-46. The district court had further stated, "Human nature is to deny committing crimes, especially for a public figure who is held in high esteem by the community and knows he is under investigation." Id. at 246. See also United States v. Hunt, 521 F.3d 636, 643-44 (6th Cir. 2008) (upholding determination that statement of a co-worker was untrustworthy, stating, "It would not be bizarre for an individual to lie in order to protect another individual with whom he has a business relationship.").
O'Hara and Yucaitis each testified under circumstances such that they were strongly motivated to deny they or Burge had tortured and abused Wilson or other arrestees or knew of such occurrences. At the hearing on the motion to suppress evidence in Wilson's criminal case, such an admission would have undermined the prosecution of Wilson, who was charged with the murders of two police officers. In the civil rights cases, it cannot be said that they testified voluntarily because their refusal to testify would have permitted an adverse inference and increased their risk of being disciplined or prosecuted. Moreover, it could have subjected them to substantial damages, including punitive damages for which they would not have been indemnified. At the Police Board hearing, their jobs and ranks were at stake. Yucaitis and O'Hara were under Burge's command in Area 2,*fn2 further motivating them not to implicate Burge.
In this scenario, that they corroborated one another adds no measurable weight to the testimony. Where so much was at stake for the officers, this motivation to lie is not outweighed by ...