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Marcus Lyons v. Village of Woodridge

June 8, 2011


The opinion of the court was delivered by: Judge Ronald A. Guzman


Marcus Lyons has sued Woodridge Police Officer James Grady, who is the only remaining defendant, for depriving him of his constitutional right to due process under the Fourteenth Amendment pursuant to 42 U.S.C. § 1983, as well as for malicious prosecution and intentional infliction of emotional distress in violation of state law. Officer Grady has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, the Court denies the motion.


Unless otherwise noted, the following facts are undisputed. On November 30, 1987 at 8:15 p.m., a man, who twenty years later would be identified as Carl Anderson, obtained entry to Rebecca Auten's apartment by means of a ruse. (Pl.'s LR 56.1(b)(3)(B) Stmt. ¶ 1.) Once inside, Anderson forced Rebecca to remove her robe, bra and underpants and to lie down on her living room floor. (Id.) He then forcibly performed oral sex on her, had intercourse with her and ejaculated onto her torso and chest. (Id. ¶ 2.) Anderson used a kitchen towel to wipe offRebecca's stomach and between her thighs, but not her chest or inside her vagina, and then left, taking the towel with him. (Id. ¶ 3.)

Immediately after the rape, Rebecca put on the silver-beige underpants (the "post-rape underpants"), bra and robe that she had been wearing before the attack. (Id. ¶ 4; Def.'s LR 56.1(a)(3) Stmt. ¶ 17; Def.'s Ex. X, Photo of Post-Rape Underpants.) After she put on the post-rape underpants and moved a cedar chest to block her front door, her underpants felt wet. (Def.'s LR 56.1(a)(3) Stmt. ¶ 17; Pl.'s LR 56.1(b)(3)(B) Stmt. ¶ 23.) Rebecca then disrobed, leaving the post-rape underpants, bra and robe on the bathroom rug, and showered. (Def.'s LR 56.1(a)(3) Stmt.¶ 18.) After showering, Rebecca put on a clean pair of blue underpants (the "hospital underpants") and clothes, and at approximately 9:00 p.m., she called her friend, Karen Jenicek. (Id.;Pl.'s LR 56.1(b)(3)(B) Stmt. ¶ 46.) Rebecca and Karen talked for about two and a half hours prior to Karen's calling the police at 11:20 p.m. (Def.'s LR 56.1(a)(3) Stmt. ¶ 18.)

Officers Hoogland, Pugsley and Andrewski were first to arrive at the scene. (Pl.'s LR 56.1(b)(3)(B) Stmt. ¶ 26.) Rebecca told the officers about the rape, including the fact that the rape had occurred on the living room floor by the couch, not in the bathroom. (Id.) Rebecca took Officer Pugsley into the bathroom, where she identified a pile of clothing on the bathroom rug as the items of clothing she had worn after the rape until she had taken them off in order to shower. (Id. ¶ 27.) Officer Pugsley photographed the pile containing the post-rape underpants, bra and robe on the bathroom rug and then collected these items in a single paper bag. (Id. ¶ 28.)

Detective Grady arrived at the scene and spoke to Officers Hooglan and Pugsley, who briefed Grady on the details of what had happened before he arrived. (Id. ¶ 29.) Officer Hooglan, who had interviewed Rebecca, described the details of what Rebecca saw and did before, during and after the rape. (Pl.'s Ex. 11, Grady Dep. 73, June 3, 2009.) Officer Pugsley told Detective Grady that the evidence had been collected, and Detective Grady was aware that Pugsley had collected Rebecca's undergarments and clothing from the bathroom. (Def.'s Resp. Pl.'s LR 56.1(b)(3)(B) Stmt. ¶ 30; Pl.'s Ex. 11, Grady Dep. 194 ("[T]he undergarments and all that were removed by the time I got there . . . ."); Pl.'s Ex. 25, Woodridge Police Department Report at 000797; Pl.'s Ex. 26, Grady Dep. 64, Mar. 8, 2010 ("I was aware that Pugsley collected items there. . . . I knew that he collected some clothing in the washroom.").)

Officer Pugsley returned to the Woodridge police station, where he deposited the paper bag containing the post-rape underpants, bra and robe into a property control locker. (Pl.'s LR 56.1(b)(3)(B) Stmt. ¶ 31.) In his evidence technician's report, dated November 30, 1987, Pugsley stated that he had gathered the victim's "bathrobe and clothing which were on a bath mat in bathroom" in a brown bag. (Id.; see Pl.'s Ex. 23, Evidence (describing bags).) According to the property control locker inventory sheet, this evidence was labeled as "#7 bag with clothes" and was located in Bin U-3. (Pl.'s LR 56.1(b)(3)(B) Stmt. ¶¶ 32.) Other than for court purposes, that same report shows that the "#7 bag with clothes" was never checked out from Bin U-3. (Pl.'s Ex. 22, 12/1/87 Evidence Description & Sign Out/In Sheet, at 000698.)

Detective Grady drove Rebecca and Karen from the apartment to Edward Hospital, where Rebecca was examined by a doctor. (Def.'s LR 56.1(a)(3) Stmt. ¶ 24.) Detective Grady collected the sexual assault kit from the nurse at the hospital, in addition to the blue hospital underpants that Rebecca had worn after her shower. (Id. ¶¶ 26-27.) The hospital underpants were placed in a white bag separate from the kit. (Id.) Detective Grady took custody of the white bag and the rape kit. (Id.; Pl.'s LR 56.1(b)(3)(B) Stmt. ¶ 34.) The white bag and rape kitwere turned over to the property control locker. (Def.'s LR 56.1(a)(3) Stmt. ¶ 26; Def.'s Ex. K, at P178; Pl.'s Ex. 22, 12/1/87 Evidence Description and Sign Out/In Sheet.) The property control locker inventory list shows "#6 white bag" and "#8 1 rape kit" as evidence located in Bin U-3. (Pl.'s Ex. 22, 12/1/87 Evidence Description and Sign Out/In Sheet.)

Detective Grady knew that Officer Pugsley had collected the post-rape underpants that Rebecca had worn after the rape but before she showered and that Rebecca had not worn the hospital underpants until after she had showered and washed herself. (Pl.'s Ex. 26, Grady Dep. 63-65; see Pl.'s Ex. 11, Grady Dep. 5/11/09, at 255.) However, Grady submitted the hospital underpants, not the post-rape underpants, to the DuPage County Sheriff's Crime Lab. (Def.'s LR 56.1(a)(3) Stmt. ¶ 88.) Grady submitted an Evidence Submission and Analysis Request form that stated that he sought semen analysis on "1-BAG - PANTIES." The form indicates that the panties were submitted in a sealed and marked white bag. (Def.'s Ex. Q, DuPage County Sheriff's Records, at 13.)

On December 3, 1987, three days after Rebecca was raped, Detective Grady showed her a photo array in the presence of her friend, Karen. (Pl.'s LR 56.1(b)(3)(B) Stmt. ¶ 15.) The photo array showed five mug shots of men taken from the archive and Lyons' employee photo in which he is smiling and wearing a tie. (See Def.'s Ex. E, Photo Array.) Karen stated that it took five minutes for Rebecca to select Lyons' photo from the array. (Pl.'s LR 56.1(b)(3)(B) Stmt. ¶ 17.) In contrast, Detective Grady testified that Rebecca's identification of Lyons was "unhesitating." (Id. ¶ 18.) Every line-up and live identification made by Rebecca of Lyons was made after she had identified Lyons from the photo array. (Id. ¶ 20.)

In a report dated December 9, 1987, DuPage Sheriff Crime Lab analyst Christine Sahs stated that she found no traces of semen on the hospital underpants that had been submitted. (Def.'s LR 56.1(a)(3) Stmt. ¶ 89.) Although Sahs' notes indicated that the tested underpants were blue, Sahs' notes were never turned over to the police, the prosecution or defense counsel. (Id.; see Def.'s Ex. Q, DuPage County Sheriff's Records, at 17.) Sahs did not retain the hospital underpants for any further testing. (Def.'s Ex. K, DuPage County State's Attorney's Documents, at P180-81 (indicating that the tested underpants (labeled by Sahs as Exhibit K-16) were returned).)

As soon as Lyons became a suspect, he agreed to submit to certain physical tests, including hair combings and pluckings, a blood test and a saliva test because he "continuously maintain[ed] that he did not have any part in the assault." (Pl.'s LR 56.1(b)(3)(B) Stmt. ¶ 36; Pl.'s Ex. 3, Trial Tr. 288.) Lyons' blood test results showed that he was a type B antigen secretor. (Pl.'s LR 56.1(b)(3)(B) Stmt. ¶ 37.) While Thomas Freeman, Lyons' defense attorney, knew that both the post-rape underpants and the hospital underpants had been collected as evidence, he agreed with the prosecutors that they would only test the rape kit and the underpants that Rebecca told the police she put on immediately following the rape because these items were the most likely to bear evidence of a rape. (Id. ¶ 69; Pl.'s Ex. 46, Freeman Dep. 42, June 18, 2010.)

On June 27, 1988, the date set for trial, Detective Grady checked out "all" evidence from the property control locker for court purposes. (Pl.'s LR 56.1(b)(3)(B) Stmt. ¶ 55; Pl.'s Ex. 28, Herron Dep. 52, Jan. 26, 2010.)*fn1 It is reasonable to infer that "all" evidence included the hospital underpants because Sahs stated that the crime lab did not retain the hospital underpants for further testing and the property control locker inventory list indicates that the "#6 white bag" containing the hospital underpants was returned to the property control locker on January 5, 1988. (Def.'s Ex. K, DuPage County State's Attorney's Documents, at P180-81; Pl.'s Ex. 22, 12/1/87 Evidence Description and Sign Out/In Sheet.) The last known whereabouts of the hospital underpants is that they were in Grady's possession on June 27, 1988. (Pl.'s LR 56.1(b)(3)(B) Stmt. ¶ 64.) On June 27, 1988, Assistant State's Attorney Kathryn Creswell signed for all of the evidence checked out by Grady, except for the hospital underpants. (Id. ¶ 57.) Assistant State's Attorney ("ASA") Joseph Birkett did not recall whether the hospital underpants were ever delivered to the prosecution. (Id. ¶ 59.) Neither the evidence from the trial nor the hospital underpants were ever returned to the property control locker after trial. (Id. ¶ 63.)

At trial, the post-rape underpants, but not the hospital underpants that were analyzed at the laboratory, were entered into evidence. (Id. ¶¶ 60, 74; see Def.'s Ex. K, DuPage County State's Attorney's Documents, at 350.) The prosecution and defense stipulated at trial that the post-rape underpants were those that had been tested and designated K-16 in Sahs' report. (Pl.'s LR 56.1(b)(3)(B) Stmt. ¶ 70.) The post-rape underpants were admitted into evidence at trial as Exhibit 3, and the prosecution had Rebecca identify them as the ones that she had (1) worn after the rape, (2) felt were wet at the time, and (3) removed before showering and placed on the bath mat. (Id. ¶ 71.) Defense counsel Freeman's closing statement showed that he believed that the post-rape underpants were examined at the lab: "I think from your experiences in life, one might expect to find something in the crotch of the panties. Nothing was there. She said the first thingshe did was got back dressed. . . . She didn't launder them. She took them in, took it off and took her shower." (Pl.'s Ex. 50, Trial Tr. 40.) Then-ASA Kathryn Creswell states that she believed that Rebecca's post-rape underpants recovered from her apartment were examined at the lab. (Pl.'s Ex. 24, Creswell Dep. 77, May 22, 2009.) Birkett understood that the underpants that were tested were collected at the scene of the rape and that the underpants showed no evidence of semen. (Pl.'s Ex. 45, Birkett Dep. 14, June 10, 2009.) In his closing rebuttal argument, then-ASA Birkett stated that "the panties [Rebecca] had on after this guy forced his penis in her" were tested and found "weak for blood." (Pl.'s LR 56.1(b)(3)(B) Stmt. ¶ 75.)*fn2

Grady was present at Lyon's trial for closing arguments, and thus heard both parties argue, incorrectly, that the post-rape underpants were tested and found not to contain semen. (Id. ¶ 78.) Although Grady admits he knew that information was false, at no point during closing arguments or afterwards did Grady tell the prosecutors or defense counsel that the post-rape underpants were never tested and that hospital underpants were the only underpants tested and found negative for semen and weak for blood. (Id.)

In 2006, after living with a wrongful rape conviction for almost two decades, Lyons became aware of an Illinois statute that permitted post-conviction testing of evidence. (Id. ¶ 97.) He hired a lawyer, who succeeded in winning the State's Attorney's support of a plan to perform DNA testing of two exhibits from his criminal trial, the bra and the underpants worn by Rebecca immediately after the rape. (Id.) The DuPage County Crime Laboratory performed DNA testing on a semen deposit found on the bra and the test results excluded Lyons. (Id.) Based on the DNA test results, the State's Attorney supported Lyons' motion to vacate his conviction. (Id. ¶ 98.) The State's Attorney also supported Lyons' petition for clemency based on innocence, which the Governor granted. (Id.)

During the instant litigation, on May 22, 2010, serologist expert Brian Wraxall tested the semen on the post-rape underpants for the presence of ABO secreted antigens, the same test that could and would have been performed in 1987, and found the presence of A antigen, but not B antigen. (Id. ¶ 86.) The presence of A antigen on the post-rape underpants eliminates Lyons as the rapist, and would have eliminated him in 1987 or 1988. (Id. ¶ 87.) Even now, visual examination of the post-rape underpants under UV light, the same method employed in 1987, still reveals the presence of six fluorescent areas that show the presence of semen on the post-rape ...

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