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Harris v. City of Chicago

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

July 6, 2017

NICOLE HARRIS, Plaintiff,
v.
CITY OF CHICAGO, et al, Defendants.

          MEMORANDUM OPINION AND ORDER

          AMY J. ST EVE UNITED STATES DISTRICT COURT JUDGE

         Defendants Robert Bartik, Demosthenes Balodimas, Robert Cordaro, James Kelly, Michael Landando, Anthony Noradin, and Randall Wo (collectively, “Defendants”) have moved to bar certain testimony of Plaintiff Nicole Harris's proposed expert, Dr. Robert Galatzer-Levy, pursuant to the Federal Rules of Evidence and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). For the following reasons, the Court, in its discretion, grants in part and denies in part Defendants' motion.

         BACKGROUND

         I. Factual Background

         This is a wrongful conviction case against eight Chicago Police Officers. Plaintiff alleges that, on October 26, 2005, a jury in the Circuit Court of Cook County convicted her of murdering her four-year-old son, Jaquari Dancy, based in large part on a false and fabricated confession elicited during 27 hours of intermittent interrogation by Chicago Police Officers. Plaintiff alleges that Defendants fabricated a police report, subjected Plaintiff to sustained and aggressive questioning, held her overnight in a cell, and ultimately elicited the false and fabricated confession, which the Defendants captured on videotape, that Plaintiff killed her son. See Harris v. Thompson, 698 F.3d 609, 612 (7th Cir. 2012). The day after Jaquari's death, Alexandra Levy, an investigator with the Chicago Children's Advocacy Center (“CAC”), interviewed Jaquari's brother Diante. Id. at 616. The CAC is a non-profit organization that facilitates interviews of children needed by law enforcement agencies by providing the agencies with age appropriate interview facilities and interviewers who specialize in child forensic interviews. The CAC did not videotape or audiotape any of its interviews at that time, including Diante's. Instead, CPD Detective Randall Woo took notes as he observed the interview through a one-way mirror.

         Six months after the trial, Dr. Galatzer-Levy performed a “thorough competency assessment” of Diante. Id. at 618. As part of this assessment, Dr. Galatzer-Levy conducted two interviews of Diante on April 11 and April 15, 2006. (R. 227-6, Galatzer-Levy Expert Report, at p. 2.) In October 2012, the Seventh Circuit overturned Plaintiff's conviction based in part on Dr. Galatzer-Levy's opinions. Harris, 698 F.3d at 650. Dr. Galatzer-Levy “had concluded that Diante was ‘neither incapable of expressing himself concerning the events surrounding his brother's death, nor incapable of understanding the duty of a witness to tell the truth.'” Id. at 621. On June 17, 2013, the Cook County State's Attorney dismissed all charges against Plaintiff. Plaintiff was thereafter granted a Certificate of Innocence, pursuant to 735 Ill. Comp. Stat. 5/2-702.

         II. Dr. Galatzer-Levy's Background

         Dr. Galatzer-Levy is a psychiatrist who holds an appointment as a Clinical Professor of Psychiatry and Behavioral Neurosciences at the University of Chicago and as a faculty member at the Chicago Institute for Psychoanalysis. (R. 227-6, at p. 1.) He graduated from the Washington University School of Medicine in 1971. (Id., at 15.) Dr. Galatzer-Levy was a Resident in Psychiatry and a fellow in Child Psychiatry at the University of Chicago. (Id.) He graduated from the Chicago Institute for Psychoanalysis in 1982. (Id.) In 1983, he received a certification in adult, child, and adolescent psychoanalysis from the American Psychoanalytic Association. (Id.) Dr. Galatzer-Levy primarily treats patients and has co-authored five books and over one-hundred professional book chapters and articles. (Id., at 1, 15-22.) Additionally, Dr. Galatzer-Levy has been qualified as an expert witness by courts in Cook, Lake, DuPage, and McHenry Counties and in the Northern District of Illinois. (Id., at 2.)

         III. Dr. Galatzer-Levy's Opinions

         Plaintiff hired Dr. Galatzer-Levy to “provide information about the mental status and competency to testify of Diante Dancy and to recount and convey his observations at and around the time of his brother's death.” (Id., 1.) Dr. Galatzer-Levy conducted two interviews of Diante on April 11 and April 15, 2006. (Id, 2.) Dr. Galatzer-Levy also reviewed “case law and statutes regarding Illinois' current witness competency requirements; police reports of an interview of Diante conducted on May 15, 2005; DCFS reports in the matter and transcripts of portions of Ms. Harris's trial including a transcript of the court's hearing and ruling regarding Diante's competency, as well as transcripts of portions of the testimony of Nicole Harris, Sta-Von Dancy, Wanda Harris and Audrey Harris” and “pertinent psychological and psychiatric research literature concerning children's competency to testify and the techniques appropriate to the psychiatric and forensic interviewing of children.” (Id.)

         Dr. Galatzer-Levy's report begins with a review of his interactions with Diante and techniques for conducting forensic interviews with children. (Id., at 2-6.) He notes that his first evaluation was designed to determine whether Diante could express himself concerning how his brother died and whether he was capable of understanding the duty to tell the truth as a witness. (Id., at 2.) Dr. Galatzer-Levy videotaped the interviews, consistent with best practices in the field. (Id., at 3.) He notes that his interviews focused on specific capacities related to Diante's competency to testify as a witness and were not intended to assess other capacities or features of Diante's personality. (Id., at 4.) Dr. Galatzer-Levy also determined that no one had coached or otherwise influenced Diante. (Id.) The report also discusses Diante's ability to express himself concerning the events surrounding his brother's death, Diante's capability to understand the duty to tell the truth as a witness, and Diante's competency to testify in court. (Id., 6-13.) Dr. Galatzer-Levy offers the following opinions in this case:

(1) Diante Dancy was, “in the days following his brother's death, at the time of his mother's trial, and at the time of his interviews with me, capable of expressing himself concerning the events surrounding his brother's death, and capable of understanding the duty to tell the truth about what he witnessed.”
(2) His own opinions “appear consistent with the findings of the Child Advocacy Center forensic interviewer who interviewed Diante the day after his brother's death, as memorialized in the police reports in this case.”
(3) The CAC interviewers “failed to follow procedures for forensic interviewing of children that were widely recognized as appropriate at the time of those interviews” because the only record ...

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