The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:
MEMORANDUM OPINION AND ORDER
Thaddeus Jimenez has sued City of Chicago and Jerome Bogucki, a former Chicago police detective, for claims arising from his wrongful conviction of the murder of Eric Morro. Jimenez served approximately sixteen years in prison before his conviction was vacated and he was released. In January 2012, a jury returned a verdict in favor of Jimenez and awarded him $25 million. Defendants have moved for a new trial and for judgment as a matter of law on Jimenez's claims. For the reasons stated below, the Court denies defendants' motions.
The present decision assumes familiarity with the Court's November 10, 2011 decision on defendants' summary judgment motion [docket no. 151].
In February 1993, Victor Romo and another boy, who Romo has always identified as Juan Carlos Torres, shot and killed Eric Morro on the street in Chicago. Morro's friend Larry Tueffel was present at the scene of the crime, and Tina Elder and Phil Torres were nearby.
Detective Bogucki was assigned to investigate the murder. Jimenez claimed that Bogucki used middle-of-the-night interviews and other coercive tactics to coerce Tueffel and Phil Torres to falsely identify Jimenez as Morro's shooter. Jimenez also claimed that Bogucki tainted a lineup identification that Elder made of Jimenez, by arranging for her to see a picture of her friend Morro's corpse next to a picture of Jimenez before she was shown the lineup. Bogucki also allegedly planted with the witnesses the idea that the shooter was wearing a blue and white Duke jacket, because that was the type of jacket that Jimenez owned.
In October 1994, Jimenez, who was fifteen years old at the time, was tried as an adult in the Circuit Court of Cook County for the murder of Morro. Romo testified that Juan Carlos Torres had committed the murder, while Tueffel, Elder, and Phil Torres testified that Jimenez was the shooter. A jury convicted Jimenez, and the trial judge sentenced him to a fifty year prison term. After the conviction was overturned for reasons unrelated to this case, Jimenez was tried again in 1997. The same witnesses testified and gave essentially the same testimony. A jury again convicted Jimenez, and the trial judge sentenced him to a forty-five year prison term.
In 2006, an investigator working for the Northwestern University Center on Wrongful Convictions contacted Tueffel, who was institutionalized in a mental health facility because he had been diagnosed as a paranoid schizophrenic. Tueffel volunteered that Jimenez was innocent. The investigator and attorneys obtained recorded statements to that effect. Using those statements, investigators confronted Elder about her identification of Jimenez. For the first time, she revealed that she had seen a picture of Jimenez just before she identified him in the lineup. Investigators were also able to cast doubt on other parts of the prosecution's case against Jimenez. In 2008, they convinced the Cook County State's Attorney to reopen the case, and state investigators discovered more evidence tying Juan Carlos Torres to the killing.
In May 2009, the State's Attorney and Jimenez's lawyers asked to vacate his conviction, and a judge of the Circuit Court of Cook County did so. The court later granted Jimenez a certificate of innocence. See 735 ILCS 5/2-702. Juan Carlos Torres was arrested for Morro's murder the same day that Jimenez was released. Torres is currently awaiting trial.
Defendants contend that they are entitled to a new trial for several reasons. They claim that the Court erroneously disallowed one of their peremptory challenges under Batson v. Kentucky, 476 U.S. 79 (1986); the Court erred in refusing to instruct the jury on specifically what actions by Bogucki were alleged to violate Jimenez's right to a fair trial; and the Court made several erroneous evidentiary rulings. Defendants also argue that they are entitled to judgment as a matter of law on Jimenez's due process, conspiracy, and malicious prosecution claims.
Defendants contend that the Court incorrectly sustained Jimenez's Batson objection to a peremptory challenge that defense counsel used against an African-American juror. Defendants also contend that the Court erred in not granting defendants another strike to use in place of the disallowed peremptory challenge.
During the jury selection process, two potential jurors indicated that they had personal experience with the prison system. One, Ms. McKee, who is African-American, stated that she has a great-nephew who served fourteen years in prison for murder and was released in 2011. Def. Ex. 1 at 77--78. She stated that she attended court during his criminal case, indicating that she went to court along with other family members. Id. at 78. Ms. McKee did not think that her great-nephew had been treated unfairly by anyone in the process, including the courts, police, prosecutors, or his own lawyers. Id. She stated that she could put her great-nephew's situation aside and decide Jimenez's case based solely on the evidence before her. Id.
Ms. McKee also disclosed that a nephew of hers had been killed on the street seven years prior to the trial. When asked if anyone had been arrested or charged for the homicide, she answered "[n]ot yet." Id. at 79. She stated that she could also set that experience aside if chosen for the jury. Id.
Another potential juror stated that he himself had actually served a prison term. Mr. Casey, who is white, disclosed that he had spent time in prison for possession of marijuana. Id. at 81--82. He stated that he was convicted in Iowa in the 1970s, was sentenced to a five year prison term, and he served two and one-half years. Id. at 154. He did not think that the police, courts, or prosecutors had treated him unfairly, but he stated that he felt he had been treated unfairly by his defense lawyer. Id. at 154--55. Mr. Casey also stated, however, that he had been guilty and "the only person I was mad at was me[,] for getting caught." Id. at 155; accord id. at 82. Unlike Ms. McKee, Mr. Casey never stated that he could put those experiences aside and not use them when deciding Jimenez's case. (In fact, the Court neglected to ask him this question. Counsel-including defense counsel-did not ask the Court to follow up in this regard.)
Mr. Casey also had been a member of a motorcycle club for twelve years, up until six or seven years prior to trial. When asked if "you or anybody else that you know ever had an encounter with a police officer that leaves you with bad feelings," he answered "of course." Id. at 153. He also claimed that at times he had been stopped by police solely because he was wearing the motorcycle club's patch on his clothes. Id. at 153. Mr. Casey stated that none of the encounters had been with Chicago police.
Id. He indicated that he would not start the trial with any negative feelings about the police officers involved in the case because of previous experiences. Id. at 154.
Defendants did not challenge either Ms. McKee or Mr. Casey for cause. Id. at 183. Defense counsel used a peremptory challenge to attempt to remove Ms. McKee from the jury. They did not use a peremptory challenge with regard to Mr. Casey. Jimenez's attorneys objected to the defense challenge of Ms. McKee, arguing that the challenge violated was racially discriminatory in violation of Batson. They noted that defendants had exercised two of their three peremptory challenges to remove the only two African-Americans from the jury and that if defendants' strikes were allowed, the jury would be entirely white. Tr. 208--10.
The Court asked defense counsel to justify the strikes of the two African-American jurors. Defendants justified their peremptory challenge of the other potential African-American juror, whom they had also challenged for cause, on the ground that she had been arrested twice and had failed to disclose either arrest. Id. at 208--09.
With regard to Ms. McKee, defendants' attorney stated: For number 17, Ms. McKee, she had a nephew who spent 14 years in prison and just got out for murder. That's not the kind of person I would like on my jury for damages because I think she would be very sympathetic to Mr. Jimenez who spent 16 years in prison for murder.
Def. Ex. 1 at 209. The attorney also said "I think she's going to relate to what it's like to have a family member in prison. Mr. Jimenez was in prison for 16 years, and I think with her having a nephew in prison for 14 years . . . ." Id. at 210. When the Court noted that Ms. McKee had stated that her great-nephew was treated fairly, defendants' attorney responded, "My point is the damages issue. She is somebody I think that is going to be very sympathetic to somebody like Mr. Jimenez who is claiming 16 years in prison. You know, we're going to say he wasn't damaged in prison because . . . basically he was properly charged." Id. at 211.
The Court then asked why defendants had not struck Mr. Casey, who (the Court noted) had spent time in prison himself. Defendants' attorney justified the differential treatment by noting that Mr. Casey had been in prison for two and one-half years, whereas Ms. McKee's great-nephew had been in prison for fourteen years. Id. at 211--12. The attorney also stated that Mr. Casey had been imprisoned in the 1970s and that his marijuana charge "was a much smaller charge." Id. The attorney concluded by noting that "Mr. Casey, who was in prison for two years . . . , he's not going to associate himself with Mr. Jimenez, but I think Ms. McKee could." Id. at 212.
Twice during the exchange, defense counsel also sought to justify the challenge by hypothesizing that Ms. McKee might believe that her great-nephew was wrongfully convicted. Counsel stated, "I didn't remember her saying he didn't do it. I doubt she knows anything about the circumstances of whether he [d]id it or not. And it wouldn't surprise me if she thought he didn't do it." Id. at 210. A bit later, counsel reemphasized this hypothesis, even more strongly: "Like I said, I'm sure she doesn't know the circumstances of the murder, and I think in her heart she probably believes her-she could believe he was innocent. I think she could sympathize with Mr. Jimenez and view her [sic] as being like her nephew, and that's my concern." Id. at 212 (emphasis added).
This rationale for the strike had no basis in the record. To the contrary, Ms. McKee had expressly affirmed, in response to a direct question, that her nephew had not been treated unfairly in any respect:
THE COURT: . . . Was there any question-and just a yes or no on this. Was there any question or issue about whether he had been treated fairly either by the courts, the police, the prosecutors, lawyers, anybody at all?
[MS. McKEE]: No, there was no question about it.
Id. at 78. Defense counsel do not suggest, nor could they, that anything in Ms. McKee's demeanor suggested that she was hedging or somehow suggested a belief that her great-nephew might have been innocent. The Court observed Ms. McKee carefully during questioning. She responded to the questions about her nephew's case unflinchingly and without any hint that she felt the criminal justice process had gone awry in any way, shape, or form.
The Court overruled plaintiff's objection to defendants' strike of the other African-American juror, finding that it was "a legitimate nonracially based challenge." Id. at 213.
With regard to Ms. McKee, however, the Court concluded that defendants' challenge was racially motivated. The Court suggested that counsel was "grasping at straws" in attempting to explain the strike. Id. The Court noted "the differential treatment of her and [Mr. Casey]." Id. Though noting that one can almost always identify some differences between two allegedly comparable jurors, the Court stated:
[Y]ou've got a person here who spent two and a half years in prison himself. He expressed some concerns about fairness, about the fairness of the proceeding. She didn't. You struck her, you didn't strike him. The only conclusion I can reach is it's racially based, and I so find, and it's deliberate.
Id. The Court disallowed the challenge of Ms. McKee and also ruled that defendants were not entitled to another strike because they had forfeited it. Id. at 214.
2. Propriety of the peremptory challenge
Allowing a party in a civil case to exclude a juror on the basis of the juror's race violates the juror's equal protection rights, and an opposing party can make a Batson objection to a racially discriminatory peremptory challenge. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628--30 (1991). A Batson objection is analyzed in three steps.
First, the [opponent of the strike] must establish a prima facie case that the strike was racially motivated. The burden then shifts to the [maker of the peremptory challenge] to articulate race-neutral reasons for the strike. Finally, the trial judge must assess the credibility of the prosecution's explanation and determine if the [opponent] has established purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with the opponent of the strike.
United States v. Hendrix, 509 F.3d 362, 370 (7th Cir. 2007) (emphasis in original; citations omitted).
Defendants do not contest that Jimenez established a prima facie case, so the Court moves on to the second step in the analysis. Defendants justified their strike of Ms. McKee by stating that she might be sympathetic to Jimenez because her great-nephew had undergone a similar experience and spent a similar amount of time in prison. This was a facially race-neutral explanation. "Unless a discriminatory intent is inherent in the [challenger]'s explanation, the reason offered will be deemed race-neutral." Id.
Accordingly, the Court moves to the third step of the Batson analysis. At this stage, a court must determine whether the opponent of the strike has proved purposeful discrimination.
The critical question in determining whether [the opponent] has proved purposeful discrimination at the last stage is the persuasiveness of the [challenger]'s justification for his strike. The issue is whether the trial court finds the [challenger]'s race-neutral explanations to be credible. When approaching the issue of credibility, the court assesses how reasonable, or how improbable the [challenger's] explanations are; and by whether the proffered rationale has some basis in accepted trial ...