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Donny Mcgee v. the City of Chicago; Erna Quinn

October 9, 2012

DONNY MCGEE, PLAINTIFF-APPELLEE,
v.
THE CITY OF CHICAGO; ERNA QUINN, SPECIAL REPRESENTATIVE FOR THE ESTATE OF EDWARD FARLEY; ROBERT LENIHAN; AND ROBERT BARTIK, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County, County Department, Law Division No. 08 L 3503 The Honorable Susan Ruscitti-Grussel, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Harris

PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Murphy*fn1 and Connors concurred in the judgment and opinion.

OPINION

¶ 1 Here we are called upon to determine whether defendants are entitled to a new trial where the circuit court failed to remove or even voir dire a juror who had performed Internet research on an issue in the case.*fn2 We decide the answer is yes.

¶ 2 Plaintiff, Donny McGee, brought claims of malicious prosecution and intentional infliction of emotional distress against defendants the City of Chicago; Erna Quinn, as special representative for the estate of Chicago police detective Edward Farley; Chicago police detective Robert Lenihan; and Chicago police officer Robert Bartik.*fn3 After a trial, a jury found for plaintiff on his malicious prosecution claim and for defendants on the intentional infliction of emotional distress claim.

¶ 3JURISDICTION

¶ 4 On June 8, 2010, the jury returned its verdict, and the circuit court entered judgment on that verdict. On March 9, 2011, the circuit court denied defendants' motion for a new trial or remittitur. On April 6, 2011, defendants timely filed their notice of appeal. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).

¶ 5 BACKGROUND

¶ 6 In his complaint, plaintiff alleged that defendants prosecuted him for the murder of his elderly next door neighbor based on a fabricated confession. Plaintiff was acquitted but due to the fabricated confession, he spent three years wrongfully incarcerated awaiting trial. Plaintiff's civil complaint contained claims of malicious prosecution and intentional infliction of emotional distress against defendants. After a trial, a jury returned a verdict in favor of plaintiff on his malicious prosecution claim and in favor of defendants on the intentional infliction of emotional distress claim. The jury awarded compensatory damages in the amount of $975,000 against defendants, and punitive damages of $110,000 against each individual defendant.

¶ 7 Below, we will only recite the facts necessary for the disposition of this appeal. Namely, we will recite the facts surrounding plaintiff's testimony of having memory lapses, and the circuit court's rulings upon learning that a juror had made an Internet search on memory lapses and, during the trial, brought outside information into the jury room.

¶ 8 Memory Lapses

¶ 9 Defendants' counsel first introduced the issue of memory lapses during his opening argument. Defendants' counsel, while discussing what Detective Lenihan would testify to at trial, stated:

"So [Detective Lenihan] says, Donny [the plaintiff], your prints match Item Evidence No. 7. He says it matches No. 7. What do you got to say about that? And Donny gives kind of a vague answer. He's like, I didn't do this. I couldn't have done this. But, you know, I got hit in the head in Mexico and I blackout sometimes.

Well, [plaintiff] will admit he did get hit in the head in Mexico. He got hit in the head in Mexico. So he says - - he kind of denies it, but then he says, Oh, I got hit in the head in Mexico and I have blackouts. So they said, will you take a polygraph? And he agrees."

¶ 10 Plaintiff's sister, Mireya Oleszkiewicz, was asked about her brother's memory lapses during cross-examination. When asked whether her brother ever discussed with her that he had blackouts or memory losses, she answered, "no."

¶ 11 Plaintiff, during cross-examination, admitted that he was hit in the head with a bottle while in Mexico, but he denied telling that to the detectives. He also denied telling the detectives "anything about memory lapses," but admitted that "[i]n certain situations" he did tell other people about having memory lapses. The following exchange then occurred between plaintiff and defendants' counsel:

"Q. Isn't it true you had experienced memory lapses?

A. That is not true.

Q. You deny never having memory lapses?

A. I don't think - - memory lapses like - - I mean, some people have memory lapses but - -

Q. Well, you did say you had told other people you had memory lapses, right?

A. Yes.

Q. But you're saying it actually isn't true?

A. All I can remember is one time my sister-in-law said I came out of my bedroom with my fiance at that time in the buff, and I don't remember that happening. Is that a memory lapse? I don't know.

Q. Don't you remember at your criminal trial there was testimony at some point before the trial began in motions about you having blackouts and memory lapses?

A. I don't really remember that.

Q. Well, let me see if I can refresh your recollection. Don't you remember as a result of some testimony that was presented to the criminal court about memory lapses and blackouts weren't you sent for a mental health exam to see if you were fit to stand trial?

A. I remember being sent to sit -- to go see if I was fit for trial, but I didn't know it had to do with alleged memory lapses. I thought they do that for every inmate to see if you're fit for trial.

Q. You just thought you were having a mental health exam because that was a routine procedure?

A. Yes.

Q. You don't recall there being anything about your mental health exam before your criminal trial that had anything to do with memory lapses?

A. No. I really don't remember that.

Q. Is that something that would be better answered by Sam Adams, Senior or Junior?

A. More than likely.

Q. So the memory lapses part you deny telling the detectives?

A. Yes, I deny.

Q. You agree you have said it to ...


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