United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ST. EVE United States District Court Judge.
Nicole Harris has moved to bar the testimony of
Defendants' false confession/coercive interrogation
rebuttal expert witness Professor Paul G. Cassell 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). On June 5, 2017, the Court granted in part and
denied in part Defendants' Daubert motion to
exclude Plaintiff's false confession/coercive
interrogation expert Dr. Richard Leo. The Court presumes
familiarity with that ruling. For the following reasons, the
Court, in its discretion, grants in part, denies in part, and
denies in part as moot Plaintiff's motion.
a wrongful conviction case involving several Chicago Police
Department (“CPD”) Officers, namely, Defendants
Robert Bartik, Demosthenes Balodimas, Robert Cordaro, James
Kelly, Michael Landando, Anthony Noradin, and Randall Wo. In
her Complaint, 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 approximately 30 hours of intermittent interrogation
by Chicago Police Officers. After the jury convicted her of
murder, the Circuit Court of Cook County judge sentenced
Plaintiff to 30 years in prison.
exhausting her state court remedies, Plaintiff 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 her 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). 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 Plaintiff,
and on January 25, 2014, the Circuit Court of Cook County
found that Plaintiff was innocent of the charges for which
she was convicted and granted her a Certificate of Innocence
pursuant to 735 ILCS 5/1-702. Plaintiff filed the present
lawsuit on June 12, 2014.
Professor Paul Cassell's Qualifications
1981, Professor Cassell graduated from Stanford University
with a B.A. in Economics and in 1984, he graduated from
Stanford Law School with a J.D. After law school, Professor
Cassell served as a judicial law clerk to Judge Antonin
Scalia of the United States Court of Appeals for the D.C.
Circuit and then to Justice Warren E. Burger of the United
States Supreme Court. Starting in 1986, Professor Cassell
served as an Associate Deputy Attorney General at the United
States Department of Justice, followed by three-and-a-half
years as a federal prosecutor in the United States District
Court for the Eastern District of Virginia. As a federal
prosecutor, Professor Cassell handled criminal prosecutions
involving police questioning of suspects and legal issues
pertaining to the admissibility of confessions.
1992, Professor Cassell began teaching at the University of
Utah, College of Law, in the areas of criminal procedure,
criminal law, crime victims' rights, and related courses.
In 2001, President George W. Bush nominated Professor Cassell
to serve as a federal district court judge for the District
of Utah. As a federal judge, Professor Cassell presided over
criminal cases, including cases involving confession issues.
Chief Justice William Rehnquist also appointed Professor
Cassell to serve as the Chair of the Judicial
Conference's Criminal Law Committee. In 2007, he resigned
from the bench and returned to the University of Utah.
2008, Professor Cassell became the Ronald N. Boyce
Presidential Professor of Criminal Law at the University of
Utah, College of Law. As a law school professor, he has
published numerous scholarly law review articles relating to
the American criminal justice system. Further, Professor
Cassell has participated in academic symposia on innocence
issues, including a September 2015 symposium at Northeastern
University School of Law and a 2011 symposium on innocence
issues held at New York University School of Law. The paper
he presented at the Northeastern University Law School
symposium was published as a chapter in a book, namely, Paul
G. Cassell, Can We Protect the Innocent Without Freeing
the Guilty? Thoughts on Innocence Reforms that Avoid Harmful
Tradeoffs, WRONGFUL CONVICTIONS AND THE DNA REVOLUTION:
REFLECTIONS ON TWENTY-FIVE YEARS OF FREEING THE INNOCENT
(2016). Similarly, the New York University Law Review
published the paper Professor Cassell presented at the New
York University School of Law. See Paul G. Cassell,
Freeing the Guilty Without Protecting the Innocence: Some
Skeptical Observations on Proposed New
“Innocence” Procedures, 56 N.Y.L. Sch. L.
Rev. 1063 (2012).
addition, Professor Cassell has authored other law review
articles concerning a wide variety of legal topics, including
Paul G. Cassell & Thomas E Goodwin, Protecting
Taxpayers & Crime Victims: The Case for Restricting
Utah's Preliminary Hearings to Felony Offenses, 2001
Utah. L. Rev. 4 (2001); Paul G. Cassell & Edna Erez,
Victim Impact Statements & Ancillary Harm: The
American Perspective, 15 Canadian Crim. L. Rev. 149
(2011); Paul G. Cassell, Too Severe? A Defense of the
Federal Sentencing Guidelines, 56 Stan. L. Rev. 1017
(2004); Paul G. Cassell, The Paths Not Taken: A Critique
of the Supreme Court's Decision in Dickerson, 99
Mich. L. Rev. 898 (2001); Paul G. Cassell, Barbarians at
the Gates: A Reply to the Critics of the Victims' Rights
Amendment, 1999 Utah L. Rev. 479 (1999); and Paul G.
Cassell, Miranda's' Negligible Effect on Law
Enforcement: Some Skeptical Observations, 20 Harv. J. L.
& Pub. Pol'y 327 (1997).
Cassell has served as an expert rebuttal witness in several
state and federal courts on the subject of false confessions.
See, e.g., United States v. Robel
Phillipos, No. 1:13-cr-10238-DPW (D. Mass. 2014) (expert
testimony via affidavit in a Boston Marathon bombing-related
case); State v. Morales, No. 31-342 (First Jud.
Dist., WY 2013) (admissibility hearing testimony in relation
to false confession expert Richard Ofshe); People v.
Thomas, No. 08-1074 (Superior Court County of
Rensselaer, NY) (admissibility hearing testimony in relation
to Richard Ofshe); State v. Maughan, No. 051100355
(1st Dist. Court, UT 2009) (provided expert report and
testified in relation to false confession expert Richard
Leo). Although no court has excluded Professor Cassell's
expert opinions, “Professor Cassell has never had the
occasion to testify before a jury on these issues.” (R.
248, Defs.' Resp., at 9; see also R. 230-5,
Cassell Dep., at 90.)
Professor Cassell's Opinions
expert report, Professor Cassell rebuts Plaintiff's false
confession/coercive interrogation expert Dr. Richard A. Leo.
Professor Cassell lists the materials he reviewed before
forming his opinions in this matter, including (1)
Plaintiff's Complaint; (2) a May 14, 2005 initial police
report; (3) two crime scene processing reports dated May 14,
2005; (4) four CPD event queries dated May 14, 2005; (5) CPD
event histories and reports regarding Jaquari's death;
(6) Defendant Officer Wo's general progress reports; (7)
Defendant Officer Kelly's general progress reports; (8)
CPD property inventory reports; (9) Plaintiff's and her
fiancé's criminal history records; (9) a general
progress report from Edwardsville, Illinois police; (10)
Defendant Officer Landando's general progress reports;
(11) Defendant Noradin's general progress reports; (12)
crime scene progress report regarding items sent to the
pathologist; (12) Chicago Children's Advocacy Center
Investigative Intake; (13) general progress reports regarding
Plaintiff's surviving son Diante Dancy; (14) various
polygraph reports; (15) arrest reports; (16) a Circuit Court
of Cook County's adult probation department ...