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Harris v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

May 31, 2017

CITY OF CHICAGO, et al., Defendants.



         On June 12, 2014, Plaintiff Nicole Harris filed the present civil rights lawsuit in which she alleges that a Circuit Court of Cook County jury convicted her of murdering her four-year-old son based in large part on a false and fabricated confession elicited during approximately 30 hours of intermittent interrogation by Chicago Police Officers. After discovery and motion practice, the Executive Committee for the Northern District of Illinois reassigned Harris' lawsuit to this Court on February 17, 2017. The Court has set a firm trial date of October 30, 2017.

         On January 6, 2017, Defendant Chicago Police Officers Robert Bartik, John Day, Robert Cordaro, Demosthenes Balodimas, James Kelly, Michael Landando, Anthony Noradin, and Randall Wo (“Defendant Officers”) moved to exclude the expert opinion testimony of Plaintiff's polygraph expert Dr. Charles Honts pursuant to the Federal Rules of Evidence, Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Federal Rule of Civil Procedure 26(a)(2)(B). The Court will discuss Plaintiff's motion in limine regarding Dr. Honts - which does not involve a Daubert analysis - in a separate order. For the following reasons, the Court, in its discretion, grants in part and denies in part Defendants' Daubert motion.


         I. Factual and Procedural Background [1]

         During the relevant time period, Defendants John Day, Robert Cordaro, Demosthenes Balodimas, James Kelly, Michael Landando, Anthony Noradin, and Randall Wo were Chicago Police Department Officers assigned to the Detective Division of the Area 5 Violent Crimes Unit. Defendant Robert Bartik was a Chicago Police Department Officer assigned to the polygraph unit. Defendants Andrea Grogan and Lawrence O'Reilly were Assistant Cook County State's Attorneys (“Defendant ASAs”) during the relevant time period.

         In May 2005, Harris lived with her two young sons, Diante and Jaquari, ages five and four respectively, and the boys' father Sta-Von Dancy. On May 14, 2005, Harris and Dancy were at a laundromat close to their home while their children were in the boys' bedroom, which contained a set of bunk beds. Shortly thereafter, Dancy returned home from the laundromat, at which time he took a nap. When he awakened, Dancy went to check on the children and saw that Jaquari was lying flat on his stomach on the floor, a bubble was coming out of his nose, and his face was purple.

         After calling 911, an ambulance took Jaquari to the hospital, and Harris, Dancy, and Diante followed. Upon arrival, hospital staff informed Harris and Dancy that Jaquari was dead. Less than an hour later, officers from the Chicago Police Department, including Defendants Wo and Day, approached Harris and Dancy asking them if they would go to the police station so that the detectives could ask them some questions. The officers then took Harris, Diante, and Dancy to Area 5 Police Headquarters.

         In her Complaint, Plaintiff alleges that after Defendants Balodimas and Landando went to her apartment to gather evidence and returned to the police station, the officers claimed that she spontaneously confessed to killing Jaquari with a phone cord - a confession that she allegedly recanted. Thereafter, while interrogating her, Harris alleges that Defendants Noradin, Landando, and Balodimas accused her of lying, aggressively interrogated her, and told her that she was under arrest for murdering her son. According to Harris, she asked for an attorney on numerous occasions, but Defendants refused to comply.

         At approximately 11:00 p.m. on May 14, 2005, Defendant Kelly contacted the Special Investigation Unit of the Children's Advocacy Center to arrange for a “Victim Sensitive Interview” of Diante, after which Alexander Levi questioned Diante. Defendant Wo observed Diante's interview. At the interview, Diante stated that he saw Jaquari wrap an elastic band from the sheet on the top bunk bed around his neck, but that he could not help Jaquari. Diante also stated that his parents were not present when Jaquari wrapped the elastic band around his neck.

         In the meantime, Defendant Noradin and/or Kelly asked Harris to take a lie detector test and Harris agreed. Because lie detector testing was not available at that time, Harris remained in the interrogation room without being able to sleep and did not have anything to eat or drink for hours. Defendant Bartik then administered the polygraph test. According to Harris, Defendant Bartik told her that the results of her polygraph test revealed that she was lying. On the other hand, Defendant Bartik testified that the polygraph examination yielded an inconclusive result.

         After the polygraph examination, Defendants Noradin, Balodimas, and Cordaro continued to interrogate Plaintiff at Area 5. In her Complaint, Harris claims that Defendant Cordaro repeatedly told Harris a fabricated story and then told Harris to give this fabricated story to the Assistant State's Attorney. Harris also alleges that Defendant O'Reilly met with her in the presence of Defendants Noradin and Balomidas, at which time Harris recited this story. Area 5's Defendant Grogan also met with Harris and she repeated the confession. On May 15, 2005, shortly after 1:00 a.m., Harris gave a videotaped statement in which she confessed to killing her son Jaquari.

         Dr. John Scott Denton, a Cook County Medical Examiner, conducted Jaquari's autopsy. Defendants Noradin and Kelly observed the autopsy. Dr. Denton concluded that the elastic band from the bed sheet was the cause of Jaquari's death. Although Dr. Denton originally concluded that Jaquari's death was accidental, after a Chicago Police Detective told Dr. Denton that Harris confessed to the murder, Dr. Denton revised his medical opinion concluding that Jaquari's death was a homicide.

         The police charged Harris with murder and she later moved to suppress the alleged coerced confession. According to Harris, Defendants Bartik and Noradin falsely testified at her suppression hearing stating that she had spontaneously and voluntarily admitted to the murder of her son and that no one had physically or psychologically coerced her into giving a false or fabricated statement. The Circuit Court of Cook County judge denied Harris' motion to suppress. At her jury trial, Defendants Bartik, Cordaro, Landando, Noradin, Grogan, and O'Reilly testified for the State. The trial judge precluded Harris' son Diante from testifying. On October 26, 2005, the jury convicted Harris of murder and the Circuit Court judge later sentenced her to thirty years in prison.

         After exhausting her state court remedies, Harris brought a habeas petition pursuant to 28 U.S.C. § 2254(d)(1) in the United States District Court for the Northern District of Illinois. After the district court denied Harris' petition for a writ of habeas corpus, the United States Court of Appeals for the Seventh Circuit reversed the district court's denial with instructions to grant the writ on October 18, 2012. See Harris v. Thompson, 698 F.3d 609, 613 (7th Cir. 2012). In particular, the Seventh Circuit concluded that the state court's disqualification of Diante as a witness violated Harris' Sixth Amendment right to present a complete defense and that counsel at Diante's competency hearing provided ineffective assistance of counsel - also in violation of the Sixth Amendment. On February 25, 2013, the State released Harris from prison on bond. On June 17, 2013, the Cook County's State's Attorney dismissed all charges against Harris, and on January 25, 2014, the Circuit Court of Cook County found that Harris was innocent of the charges for which she was convicted and granted her a Certificate of Innocence pursuant to 735 ILCS 5/1-702.

         II. Dr. Honts' Qualifications

         After earning bachelors and masters of science degrees in Psychology from Virginia Polytechnic Institute, Dr. Honts received his Ph.D. in Experimental Psychology from the University of Utah in 1986. Thereafter, he joined the Boise State University Psychology faculty in 1995 and is presently a Professor of Psychological Science and Department Chair. Since 1982, Dr. Honts has offered instruction and continuing education in a number of venues in the polygraph, law enforcement, psychological, and legal professions, including lectures and instruction with the United States Department of Defense Polygraph Institute (now known as the National Center for Credibility Assessment), the United States Secret Service, the Federal Bureau of Investigation (“FBI”), and the Canadian Police College. Furthermore, Dr. Honts has consistently maintained a practice as a polygraph examiner starting in 1976 when he trained at the Backster School of Lie Detection in San Diego, California.

         Dr. Honts has published and/or presented more than 300 scientific papers on deception detection and was co-editor of the recently published book Credibility Assessment, Scientific Research & Applications, First Edition, Oxford, UK, Academic Press. Some of Dr. Honts' published articles include: Handler, M., Honts, C. R., & Goodson, W., A Literature Review of Polygraph Countermeasures & the Comparison Question Technique, The Police Polygraphist Digest, January, 22-32 (2016); Honts, C. R., & Reavy, R., The Comparison Question Polygraph Test: A Contrast of Methods & Scoring, Physiology & Behavior, 143, 15-26 (2015); Handler, M., Honts, C. R., & Nelson, R., Information Gain of the Directed Lie Screening Test, Polygraph, 42, 192-202 (2013); and Honts, C. R., & Schweinle, W., Information Gain of Psychophysiological Detection of Deception in Forensic & Screening Settings, Applied Psychophysiology & Biofeedback, 34, 161-172 (2009). In forming his opinions in this matter, Dr. Honts relied upon his many publications, especially Raskin, D. C., & Honts, C. R., The Comparison Question Test, in M. Kleiner (Ed.), Handbook of Polygraph Testing, London: Academic 1-49 (2002).

         Also, Dr. Honts was the recipient of the 2014 Harry Detwiler Award for contributions to the polygraph profession in Latin America and the 2009 John E. Reid Memorial Award for distinguished achievements in polygraph research, teaching, or writing. Dr. Honts is a Charter Member and Fellow of the Association for Psychological Science. His current research focuses on two areas: (1) improving the standardization and criterion validity of the comparison question test for psychophysiological deception detection, and (2) interrogation, confession and false confession phenomena in real world contexts. Moreover, Dr. Honts has served and testified as an expert witness regarding polygraph examinations in federal and state courts throughout the country. See, e.g., Halsey v. Pfeiffer, 750 F.3d 273, 281 (3d Cir. 2014); Smock v. Nolan, 361 F.3d 367 (7th Cir. 2004); Livers v. Schenck, No. 08 CV 107, 2013 WL 5676881 (D. Neb. Oct. 18, 2013); Deskovic v. City of Peekskill, 894 F.Supp.2d 443 (S.D.N.Y. 2012); State v. Cope, 405 S.C. 317, 748 S.E.2d 194 (S.C. 2013); People v. Kogut, 10 Misc.3d 245, 805 N.Y.S.2d 789 (N.Y. Sup. Ct. 2005); Rivera v. Lake County, Illinois, 12 C 8665 (N.D. Ill.); Bell v. City of Chicago, 02 L 9957 (Circuit Court of Cook County).

         III. Dr. Honts' Expert Opinions

         Dr. Honts provides a list of the materials that he relied upon in forming his expert opinions specific to this lawsuit. These materials include: (1) Defendant Bartik's testimony at Plaintiff's suppression hearing; (2) Defendant Bartik's testimony at Plaintiff's criminal trial; (3) Plaintiff's testimony at her criminal trial; (4) two May 17, 2005 CPD supplemental reports authored by Defendant Bartik; (5) Defendant Bartik's May 15, 2005 polygraph examiner's worksheets for Dancy and Plaintiff; (6) the CPD polygraph case review dated May 15, 2005; (7) Plaintiff's and Dancy's polygraph consent forms; (8) Defendant Bartik's complaint register histories; (9) CPD's Bureau of Technical Services, Forensic Services Division, Standard Operation Procedure for Polygraph Unit Operations; (10) CPD Bureau of Detectives, Forensic Services Division, Standard Operation Procedure for Polygraph Unit Operations; (11) CPD General Order 93-3, Special Situations; (12) Case Supplementary Reports, Field Investigation Cleared Closed (Arrest and Prosecution) Report submitted on June 21, 2005 by Defendants Noradin, Kelly, Day and Wo; (13) Case Supplementary Reports, Field Investigation Progress-Violent (Scene) Report submitted on June 2, 2005 by Defendants Wo and Day; (14) reports submitted on May 14 and 15, 2005 regarding interviews of Diante and Plaintiff; (15) Plaintiff's May 15, 2005 arrest report; (16) Defendant Noradin's testimony at Plaintiff's suppression hearing; (17) Defendant Officers' testimony at Plaintiff's criminal trial; (18) Defendant Bartik's deposition and trial transcripts in other City of Chicago lawsuits; (19) polygraph documents in other City of Chicago cases; (20) Plaintiff's polygraph graph; (21) the videotape of Plaintiff's confession; (22) Defendant Bartik's deposition testimony in this lawsuit; (23) Defendant Bartik's training record, rating cards, and evaluations; (24) certain Illinois statutes; (25) Plaintiff's deposition transcript in this lawsuit; (26) the Seventh Circuit's decision in Harris v. Thompson, 698 F.3d 609 (7th Cir. 2012); and (27) certain CPD general orders and addenda to these general orders.

         In his expert report, Dr. Honts explained that when he reviews polygraph examinations conducted by other examiners, it is his standard practice to evaluate the physiological data before reviewing other materials. Next, he stated that he tested Harris' polygraph examination by using a comparison question test with four relevant questions and two comparison questions. The questions were ordered in the format commonly referred to in the polygraph profession as the Mixed General Question Test (“MGQT”) or the Reid Comparison Test - the same test that Defendant Bartik performed. Dr. Honts then evaluated the physiological recordings using the numerical scoring system developed and scientifically valiDated: the University of Utah (the Utah Scoring System). After completing the analysis of the physiological data, Dr. Honts reviewed other materials from Harris' polygraph examination.

         Based on his review and examination under the Utah Scoring System, Dr. Honts proffered certain opinions as represented in his expert report. Defendants challenge the following opinions:

• The Harris Examination conducted in 2005 used archaic and discredited testing and scoring techniques that were no longer accepted as valid best practices in the polygraph profession. Those archaic and discredited techniques resulted in a false confession[.]
• The false confession .... might well have been avoided had valid polygraph practices been followed. The most egregious failures to use valid polygraph practice were:
• Ms. Harris, the potential polygraph subject, was an unsuitable subject for testing on May 15, 2005, because her son had died and the state had taken her surviving child less than 24 hours before the polygraph examination. Moreover, she had not had sufficient sleep the night before. The examiner, Mr. Bartik, unprofessionally and recklessly abdicated his duty to delay the examination to the alleged willingness of Ms. Harris to proceed.
• The testing technique used in the 2005 Harris Examination was, at that time, notorious for its use in scientific studies that had produced the highest rates of false positive outcomes ever seen in the polygraph research literature. In 2005, any competently trained examiner should have known that the Reid MGQT was of very poor accuracy and was highly prone to a high rate of false positive errors (that is, failing the actually innocent) and inconclusive outcomes with the actually innocent.
• An inferior and archaic scoring technique, global analysis, was used to evaluate the Harris Examination. Since the 1970s it had been well known in the professional and scientific literatures and communities that global analysis was significantly less accurate than numerical scoring analysis and that the difference between the two was large. In particular, it was known that global analysis was prone to very high rates of false positive error. In my opinion, the use of global analysis in 2005 showed either a willful disregard or deliberate ignorance for the 30 years of scientific research and advances in professional practice that had gone before. Using global analysis in 2005 was a reckless professional practice.
• Despite the weakness with the testing technique used, and Ms. Harris' unsuitable condition on May 15, 2005, my scoring of the Harris Examination with the Utah Scoring System produced an outcome of Truthful with regard to the four relevant questions of the examination. It is my opinion that Mr. Harris was being truthful when she answered the relevant questions in the Harris Examination. Moreover, it is my opinion that in 2005 any properly trained examiner ...

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