The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:
MEMORANDUM OPINION AND ORDER
Thaddeus Jimenez has sued the City of Chicago and six Chicago police detectives and officers for claims arising from his wrongful conviction of the murder of Eric Morro.*fn1 Jimenez asserts due process, failure to intervene, and conspiracy claims under 42 U.S.C. § 1983 and state law claims for malicious prosecution, intentional infliction of emotional distress, conspiracy, respondeat superior, and indemnification. The police officer defendants have moved for summary judgment. For the reasons stated below, the Court grants the summary judgment motion in part and denies it in part.
On the evening of February 3, 1993, nineteen-year-old Eric Morro was walking west on Belmont Avenue in Chicago with fourteen-year-old Larry Tueffel. On the street they passed two boys, one of whom was Victor Romo. Romo confronted Morro about money he owed to someone named Leo, and a scuffle resulted. The other boy who was with Victor pulled a gun and shot Morro. The two boys fled. Tueffel initially ran as well but returned to check on Morro. Morro was taken to a hospital but was pronounced dead on arrival.
At the scene, Tueffel and Phil Torres,*fn2 who lived near the scene of the crime, described the incident to police. Tueffel also provided a description of the shooter, stating that he was thirteen or fourteen, five feet and four or five inches tall, and curly black hair; was wearing a purple jacket with yellow lettering, baggy blue jeans; and was carrying a small-caliber silver handgun. This description did not match Jimenez, who did not have curly hair and owned a blue and white Duke University jacket. Phil likewise did not identify Jimenez as the shooter when he spoke to police at the scene. At one point, however, Phil and Tueffel were seated in the back of a squad car together, and Phil asked Tueffel if Jimenez had shot Morro. Tueffel denied that Jimenez had been the shooter.
Detective Jerome Bogucki was assigned to the case and began his
investigation on the night of the shooting at the hospital where Morro
had been taken. He spoke to
Sandra Elder, who stated that she and her daughter Tina*fn3
had witnessed the shooting. Bogucki was not able to interview
Tina at the time.Bogucki also interviewed Tueffel and Phil at a police
station on the night of the shooting. Again, neither identified
Jimenez as the shooter.
The parties dispute the next events. The defendants contend that at 1:00 a.m. on February 4, Phil called Bogucki to change his story. Phil stated that he had seen the shooting from his third-floor apartment window and that Jimenez was the shooter. Defendants say that Bogucki then went to the home of Phil's mother, where Phil said that he knew Jimenez and that he saw the shooter wearing a blue and white Duke jacket. According to defendants, Phil told Bogucki that Tueffel had denied that Jimenez shot Morro but explained that he suspected that Tueffel was trying to protect Jimenez. Bogucki also talked to Phil's younger siblings, Shawn and Donna Cosman, who provided a motive for the shooting by telling the detective of an altercation earlier in the day between Jimenez and Morro.
Jimenez's version of the events is different. He asserts that Phil saw only part of the incident from his window and did not actually see the shooting occur. Jimenez contends that Phil did not call the police to change his story but rather that Bogucki showed up without invitation at 1:00 a.m. to talk with him. Jimenez also asserts that the police took Phil to a police station to interview him and did not simply talk to Phil at his mother's house. According to Jimenez, Phil did not want to be a witness and was high that night, so he would not have willingly contacted the police or gone with them. Jimenez contends that because Phil had not been an eyewitness to the shooting, the only thing he could have told the police was that his siblings knew of a possible motive for Jimenez to attack Morro. Additionally, Jimenez argues, Phil did not mention a Duke jacket but instead described the colors of the jacket; he says the police were the first to say that the jacket had a Duke inscription. Finally, Jimenez asserts that the police pressured Phil to say that Jimenez had been the shooter by telling him "that other people (including his sister) were claiming that the shooter was in fact [Jimenez], and finally, [Phil] agreed to say it was [Jimenez]." Pl. Stat. of Undisputed Facts ¶ 21.
During Larry Tueffel's initial interview with Bogucki on the night of February 3, he did not identify Jimenez as the shooter and instead told the detective that a person named Frankie had shot Morro. Tueffel was then driven home. After Bogucki and Detective Mark Sanders talked to Phil, they went to Tueffel's house, arriving between 3:00 and 4:00 a.m. on February 4. Jimenez contends that they gave Tueffel no choice but to accompany them to the police station and did not allow Tueffel's parents to accompany him even though he was only fourteen years old. It is undisputed that Tueffel was awakened and taken to a police station without his parents.
At the station, Tueffel told the police that he knew the shooter by sight but not by name. Tueffel was friends with Jimenez and sometimes spent time with him. The police told Tueffel that other witnesses had identified Jimenez as the shooter, and they accused him of lying and covering up for Jimenez. They also asked Tueffel if the shooter had been wearing a Duke jacket, contrary to Tueffel's earlier description.
Although Tueffel was scared because the police were yelling and screaming at him, he repeatedly stated that Jimenez had not shot Morro. The police told Tueffel that he would go to jail and continued to interrogate him for two hours, even though he asked to be taken home.After two hours, exhausted and crying, Tueffel broke down and told the police that Jimenez had been the shooter.
In deposition testimony, Jimenez stated that he was able to overhear Tueffel's interview for less than one minute. Def. Ex. 21 at 420--22. He was able to identify Tueffel's voice and could tell that the police were yelling and accusing Tueffel of lying.
Bogucki and Sanders arrested Jimenez around 4:00 a.m. that morning.
Later on the morning of February 4, Jimenez was placed in a lineup to be viewed by Larry Tueffel, Phil Torres, Sandra Elder, and Tina Elder.The Elders and Phil drove together to the police station to view the lineup. They also smoked outside of the station before going in to see the lineup. Pl. Ex. 6 at 22--23.During the ride and while smoking, they discussed Morro's death.
After entering the police station, the witnesses were kept separate. Phil and Tueffel identified Jimenez in the lineup. Jimenez contends that the police manipulated the lineup by asking them to pick him out rather than asking them to pick out the shooter. Sandra Elder picked out Jimenez and another one of the lineup participants and said that both looked like the shooter.
Before Tina Elder viewed the lineup, a police officer seated her at a desk. On the desk, she saw two Polaroid pictures sitting next to each other, one of Morro's body and one of Jimenez. No police officer discussed the photos with Tina. Jimenez contends, however, that a police officer told Tina that Jimenez was the primary suspect. When Tina was taken to view the lineup, she identified Jimenez as the shooter. She was not interviewed by police until after she had seen the photo and had picked Jimenez in the lineup.
Sandra Elder testified at a deposition that she saw the picture of Jimenez as she was walking out of the lineup room and thought that everyone else had seen it as well. Def. Ex. 12 at 35--36. Sandra also said, however, that Tina did not tell her that she had seen the picture before viewing the lineup. Tina did not tell anyone she had seen the picture until 2007.
E. Victor Romo and Juan Carlos Torres
On February 10, Victor Romo turned himself in and confessed to Bogucki and Detective Raymond Schalk that he had been at the scene of the shooting. This was six days after the authorities had already arrested and charged Jimenez for the murder.Romo stated that Jimenez was not the shooter and that he did not even know Jimenez. Instead, he claimed that the shooter was Juan Carlos Torres and that Juan Carlos was wearing a gold jacket at the time.
Victor's father, Ezequiel Romo, told the detectives that Victor had first confessed to him. Ezequiel said that he then spoke to Juan Carlos and that Juan Carlos had admitted shooting Morro after Morro had punched him in the face.The Romos provided detectives with Juan Carlos's address and a map of how to get to his home. Bogucki and Schalk located Juan Carlos and interviewed him.
Later, Victor Romo's defense attorney presented Bogucki, Schalk, and Assistant State's Attorney Gina Savini with a tape recording that he said included a confession by Juan Carlos, in Spanish, to Ezequiel Morro. Savini took possession of the tape, but the detectives made a copy. They did not list the tape as evidence in Jimenez's case. Nor did they listen to the tape, have it translated, or request that a Spanish-speaking officer listen to it. Bogucki and Schalk did interview Juan Carlos again on March 8. He denied that he had confessed to Ezequiel Morro.
Jimenez claims that on the recording, Juan Carlos stated, "when he hit me and I wanted to shoot him," "when I fired the shot, I ran," and "they pinned the other blame on the, the other gang boy." Pl. Stat. of Undisputed Facts ¶ 59.Defendants contend that an expert they have retained has determined that the recording is fraudulent.
Victor Romo was tried as a juvenile for his part in the shooting. He testified at his trial that Juan Carlos was the shooter. Larry Tueffel also testified at Romo's trial. He stated that Jimenez was the shooter and that he had told the police this after they confronted him with the fact that there was another witness and that he was not telling the truth. The court found Romo delinquent-the equivalent of a finding of guilt.
F. Thaddeus Jimenez's trials
Jimenez was indicted on June 24, 1993 for Morro's murder. At his trial, Larry Tueffel, Phil Torres, and Tina Elder identified Jimenez as the shooter. Tueffel and Phil also testified about their conversation in the squad car at the scene of the crime. Jimenez's lawyer cross-examined Tueffel about the different stories he had told the police. Both Bogucki and Tueffel testified about the early morning interview, but neither revealed (either before or at the trial) that the police had threatened and yelled at Tueffel for two hours before he implicated Jimenez. Instead, in his testimony at the trial, Tueffel explained that he had initially not identified Jimenez as the shooter because they were members of the same gang and he was afraid of implicating a fellow gang member. Victor Romo testified that the person who shot Morro was Juan Carlos Torres, not Jimenez.
Jimenez was convicted on October 4, 1994 and was sentenced to a fifty-year prison term. The Illinois Appellate Court overturned his conviction because the trial court had not asked prospective jurors whether Jimenez's gang affiliation would affect their opinions of the case.
At Jimenez's second trial, Tueffel, Phil Torres, and Tina Elder again identified Jimenez as the shooter. Tueffel and Phil again testified about their conversation in the squad car. Bogucki and Tueffel again testified about the early morning interview without testifying to the length of the interview, the yelling, or the threats. Tueffel explained again that he feared pointing the finger at a fellow gang member. Victor Romo again testified that Juan Carlos, not Jimenez, was the shooter. At both trials, Jimenez attempted to introduce the taped confession of Juan Carlos to Ezequiel Romo, but the court refused to admit it or Ezequiel's related testimony. Jimenez was convicted again on November 11, 1997 and was sentenced to forty-five years' imprisonment.
G. Thaddeus Jimenez's exoneration
Jimenez maintained his innocence after his second conviction and obtained assistance from the Northwestern Law School's ...