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Harris v. City of Chicago

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

June 5, 2017

CITY OF CHICAGO, et al., Defendants.


          AMY J. ST. EVE, District Court Judge.

         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.

         Before the Court is Defendant Officers' motion to exclude the expert testimony of Plaintiff Nicole Harris' false confession/coercive interrogation expert Dr. Richard A. Leo pursuant to the Federal Rules of Evidence and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Similarly, Plaintiff has moved to admit Dr. Leo's expert testimony also pursuant to the Federal Rules of Evidence and Daubert. On May 23, 2017, the Court held a Daubert hearing at which time Dr. Leo testified. For the following reasons, the Court, in its discretion, grants in part and denies in part Defendants' Daubert motion, and grants in part and denies in part Plaintiff's Daubert motion. The Court will consider the parties' arguments regarding Defendants' false confession expert Professor Paul Cassell in a separate order.


         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 later denied and 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.

         After administering a polygraph test to Harris, police transported Harris back to Area 5 and Defendants Noradin, Balodimas, and Cordaro continued to interrogate her. 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 ASA Lawrence 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 and that no one had physically or psychologically coerced her into giving a false and 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 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 (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. Leo's Qualifications

         Dr. Richard Leo is a Professor of Law and Psychology at the University of San Francisco, and was formerly an Associate Professor of Psychology and an Associate Professor of Criminology at the University of California, Irvine. In addition, Dr. Leo is a Fellow in the Institute for Legal Research at the University of California, Berkeley, Boalt Hall School of Law. Dr. Leo received his bachelors degree from the University of California, Berkeley, his master's degree from the University of Chicago, his juris doctorate from Boalt Hall School of Law, and his Ph.D. from the University of California, Berkeley. His areas of research, training, and specialization include social psychology, criminology, sociology, and law. Dr. Leo's areas of academic specialization including Criminal Law, Criminal Justice, Psychology and Law, Law and Social Science, and Police Organization and Behavior. For more than two decades, Dr. Leo has conducted empirical research on police interrogation practices, the psychology of interrogation and confessions, psychological coercion, police-induced false confessions, and erroneous convictions. In doing so, Dr. Leo spent nine months in the field with the Oakland, California Police Department, which included observing 122 felony interrogations in 1992. In 1993, he observed 60 videotaped interrogations in the Vallejo and Hayward Police Departments.

         Dr. Leo has analyzed thousands of cases involving interrogations and confessions and has researched, written, and published numerous peer-reviewed articles on these subjects in scientific and legal journals - often collaborating with Richard Ofshe, an internationally recognized expert on false confessions. These publications include: Richard A. Leo, Why Interrogation Contamination Occurs, The Ohio State Journal of Criminal Law (2013); Richard A. Leo & Deborah Davis, Interrogation Related Regulatory Decline: Ego-Depletion, Failures of Self-Regulation & the Decision to Confess, Psychology, Public Policy & Law (2012); and Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice & Irrational Action, 74 Denv. U. L. Rev. 979, 1117 (1997). Dr. Leo has written several books, including Police Interrogation & American Justice (Harvard University Press 2008) and Confessions of Guilt: From Torture to Miranda & Beyond (Oxford University Press 2012). Federal and state courts have cited and relied upon Dr. Leo's published works. See, e.g., Corley v. United States, 556 U.S. 303, 321, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (“‘[C]ustodial police interrogation, by its very nature, isolates and pressures the individual, ' and there is mounting empirical evidence that these pressures can induce a frighteningly high percentage of people to confess to crimes they never committed, see, e.g., Drizin & Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L.Rev. 891, 906-907 (2004).”) (internal citation omitted); United States v. Preston, 751 F.3d 1008, 1027 (9th Cir. 2014) (“Under interrogation, [arrestees] are not likely to understand that the police detective who appears to be friendly is really their adversary or to comprehend the long-term consequences of making an incriminating statement. Jon B. Gould & Richard A. Leo, One Hundred Years Later: Wrongful Convictions After a Century of Research, 100 J.Crim. L. & Criminology 825, 847 n.119 (2010).”); Harris v. Thompson, 698 F.3d 609, 632 n.12 (7th Cir. 2012) (“See generally Richard A. Leo, False Confessions: Causes, Consequences, & Implications, 37 J. Am. Acad. Psychiatry & L. 332, 337 (2009) (“Interrogators help create the false confession by pressuring the suspect to accept a particular account and by suggesting facts of the crime to him, thereby contaminating the suspect's postadmission narrative.”)).

         Dr. Leo has given numerous lectures and presentations to judges, defense attorneys, prosecutors, and other criminal justice professionals and has taught interrogation training courses and/or given lectures to police departments in the United States, China, and the Republic of Cyprus. He has received numerous awards, including the Lifetime Achievement Award (2014) from the Society for the Study of Social Problems, Crime and Juvenile Delinquency Division; the Paul Tappan Lifetime Achievement Award (2014), from the Western Society of Criminology; and a Fellowship from the Center for the Advanced Study in the Behavioral Sciences (2014-15) at Stanford University, among others. To date, Dr. Leo has consulted with criminal and civil attorneys on approximately 1, 800 cases involving disputed interrogations and/or confessions, and has been an expert witness over 300 times in state, federal, and military courts, including cases in the Northern District of Illinois. See, e.g., Caine v. Burge, No. 11 C 8996, 2013 WL 1966381 (N.D. Ill. May 10, 2013); Livers v. Schenck, No. 08 CV 0107, 2013 WL 5676881 (D. Neb. Oct. 18, 2013); United States v. Deuman, 892 F.Supp.2d 881 (W.D. Mich. 2012).

         III. Dr. Leo's Expert Opinions

         Dr. Leo provides a list of the materials upon which he relied in forming his expert opinions. These materials include: Chicago Police reports, event history records, crime scene reports, property inventories, general progress reports, polygraph materials, Harris' videotaped confession, Dancy's and Harris' criminal records, Dancy's statement, supplementary reports of Jaquari's death and polygraph tests, Harris' criminal trial transcript, the Illinois Appellate Court decision in People v. Harris, the Seventh Circuit's opinion in Harris v. Thompson, filings in the present lawsuit, Defendant Officers' deposition transcripts, Harris' deposition transcript, and Alexander Levi's deposition transcript.

         In his expert report, Dr. Leo explains the study of police interrogations and false confessions and proffers the following opinions in relation to this lawsuit:

(1) It has been well-documented in the empirical social science research literature that hundreds of innocent suspects have confessed during police interrogation to crimes (often very serious crimes such as murder and rape) that it was later objectively proven they did not commit;
(2) Nicole Harris's account of her multiple interrogations during her more than 30 hours at Area 5 on May 14-16, 2005 is consistent with the social science empirical research literature on the types of interrogation techniques and investigative practices that are associated with, increase the risk of, and are known to cause innocent individuals to falsely confess;
(3) The accounts of the various Chicago police investigators who interrogated Nicole Harris for between 28 and 30 hours on May 14-16, 2005, are not consistent with the empirical findings of the social science research literature on the factors associated with and known to increase the risk of and/or cause false and unreliable confessions;
(4) In her account of what occurred during her police custody and/or interrogations on May 14-16, 20[0]5, Nicole Harris describes the use of interrogation techniques and practices that were guilt-presumptive, accusatory and theory-driven. Nicole Harris describes interrogation procedures whose goal was not to find the truth but to break down her denials of guilt and elicit from her a confession to killing her son Jaquari Dancy;
(5) Before interrogating her, the investigators misclassified Nicole Harris as guilty when, in fact, they had no evidence whatsoever to indicate that Jaquari Dancy's death was anything other than accidental nor that Nicole Harris had any role in bringing it about;
(6) The initial spontaneous “confession” attributed to Nicole Harris, which she denies, is inconsistent with empirical social science research on police interrogation and confessions, as well as with logic and the physical evidence in this case;
(7) The multiple interrogations described by Nicole Harris were both physically and psychologically coercive: Nicole Harris's account of what occurred during her multiple interrogations contains interrogation techniques that are known to cause a suspect to perceive that he or she has no choice but to comply with their demands and/or requests and that are known to increase the risk of eliciting involuntary statements, admissions and/or confessions;
(8) Nicole Harris's account of what occurred during her multiple interrogations contains numerous interrogation techniques, methods, and strategies that have been shown by social science research to increase the risks of eliciting false and unreliable statements, admissions and/or confessions (i.e., situational risk factors) when misapplied to the innocent. These included false evidence ploys, minimization, implied and explicit threats, and implied and explicit promises;
(9) Nicole Harris was also at a heightened risk during her interrogations of making and/or agreeing to a false and unreliable confession because of her personality traits (i.e., personal risk factors), specifically her submissiveness and high suggestibility, as well as specific personality traits she had at that time (her overwhelming grief over the loss of her son);
(10) The interrogations described by Nicole Harris involved documented instances of police interrogation contamination (i.e., leaking and disclosing non-public case facts) and scripting that contravene universally accepted police interrogation training standards and best practices, and which increased the risk that Nicole Harris' confession statement would, misleadingly, appear to be detailed and self-corroborating; and
(11) The confession statement of Nicole Harris contains factual and logical errors, inconsistencies, and other indicia of unreliability that are the hallmarks of ...

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