United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION & ORDER
B. Gottschall, United States District Judge
afternoon of Saturday, August 27, 1988, someone shot Felix
Valentin eleven times as he sat in a car parked on
Chicago's west side. ECF No. 332 ¶¶
Jacques Rivera, the plaintiff here, was convicted of
Valentin's murder in 1990 after a bench trial.
See ECF No. 332 ¶ 90; ECF No. 316 ¶ 1. It
is undisputed that “Rivera has always been completely
innocent, and had nothing to do with the tragic death of
Felix Valentin.” ECF No. 332 ¶ 96.
Seventh Circuit stated when it reviewed Rivera's
conviction in 2002, “Certainly, the evidence against
Rivera was not overwhelming. The state's case hinged
entirely on the testimony of a thirteen-year old witness who
identified Rivera as the shooter.” Rivera v.
Briley, 52 Fed.Appx. 270, 274 (7th Cir. 2002);
accord United States ex rel. Rivera v. DeTella, No.
97 C 2993, 1998 WL 704308, at *1 (N.D. Ill. Sept. 29, 1998).
Nonetheless, “the credible testimony of one eyewitness
is sufficient to support a conviction.”
Rivera, 52 Fed.Appx. at 274 (citing United
States ex rel. Wandick v. Chrans, 869 F.2d 1084, 1089
(7th Cir. 1989)).
support for Rivera's conviction effectively collapsed in
2011 when Orlando Lopez, the twelve-year-old eyewitness (he
was thirteen when he testified at Rivera's trial),
recanted his trial testimony at a hearing held in state court
on June 23, 2011. ECF No. 332 ¶ 95. The state court
found that Lopez's recantation was credible and ordered a
new trial. Id.; Pl. Ex. 18 at 7-8. Prosecutors
dropped the charges against Rivera in October 2011, and he
walked out of prison a free man after spending more than
twenty years in prison for a crime he did not commit. ECF No.
332 ¶ 96. The state court issued Rivera a certificate of
innocence on September 5, 2012. Id. ¶ 97;
see Pl. Ex. 17; 735 Ill. Comp. Stat. 5/2-702.
then filed this suit under 42 U.S.C. § 1983 and Illinois
law against the City of Chicago (“the City”) and
several Chicago police officers, including Reynaldo Guevara
(collectively “officer defendants”), allegedly
involved in the investigation of the Valentin murder. The
City and the officer defendants have filed separate motions
for summary judgment; the City joins the officer
SUMMARY JUDGMENT STANDARD AND LOCAL RULE 56.1
reciting the factual background, the court sets forth the
summary judgment standard-an understanding of which helps to
frame a threshold issue. Defendants object to Rivera's
Local Rule 56.1 submissions in opposition to the pending
motions, contending that the statements should be stricken
from the record.
Summary Judgment Standard
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A genuine dispute as to any material fact
exists if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). “The underlying substantive law governs whether
a factual dispute is material: ‘irrelevant or
unnecessary' factual disputes do not preclude summary
judgment.” Carroll v. Lynch, 698 F.3d 561, 564
(7th Cir. 2012) (quoting Anderson, 477 U.S. at 248).
In resolving summary judgment motions, “facts must be
viewed in the light most favorable to, ” and all
reasonable inferences from that evidence must be drawn in
favor of, “the nonmoving party[-but] only if there is a
‘genuine' dispute as to those facts.”
Scott v. Harris, 550 U.S. 372, 380 (2007);
Blasius v. Angel Auto., Inc., 839 F.3d 639, 644 (7th
Cir. 2016) (citing Cairel v. Alderden, 821 F.3d 823,
830 (7th Cir. 2016)).
party seeking summary judgment has the burden of establishing
that there is no genuine dispute as to any material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); Modrowski v. Pigatto, 712 F.3d 1166, 1168
(7th Cir. 2013) (explaining that Rule 56 “imposes an
initial burden of production on the party moving for summary
judgment to inform the district court why a trial is not
necessary” (citation omitted)). After “a properly
supported motion for summary judgment is made, the adverse
party must” go beyond the pleadings and “set
forth specific facts showing that there is a genuine issue
for trial.” Anderson, 477 U.S. at 250
(quotation omitted); see also Modrowski, 712 F.3d at
1169 (stating party opposing summary judgment “must go
beyond the pleadings (e.g., produce affidavits,
depositions, answers to interrogatories, or admissions on
file), to demonstrate that there is evidence upon which a
jury could properly proceed to find a verdict in her
favor”) (citations and quotations omitted). Summary
judgment is warranted when the nonmoving party cannot
establish an essential element of its case on which it will
bear the burden of proof at trial. Kidwell v.
Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012).
Local Rule 56.1 Statements
Rule 56.1 sets out a procedure for presenting facts that are
germane to a party's request for summary judgment
pursuant to Fed.R.Civ.P. 56. Specifically, Local Rule
56.1(a)(3) requires a party moving for summary judgment to
submit “a statement of material facts as to which the
moving party contends there is no genuine issue and that
entitle the moving party to judgment as a matter of
law.” Cracco v. Vitran Express, Inc., 559 F.3d
625, 632 (7th Cir. 2009) (quoting L.R. 56.1(a)(3)). Each
paragraph of the movant's facts must include
“specific references to the affidavits, parts of the
record, and other supporting materials relied upon to support
the facts set forth in that paragraph.” L.R. 56.1(a).
The “[f]ailure to submit such a statement constitutes
grounds for denial of the motion.” Id. Local
Rule 56.1(b)(3) requires the nonmoving party to submit a
response to each statement of fact provided by the movant,
“including, in the case of any disagreement, specific
references to the affidavits, parts of the record, and other
supporting materials relied upon.” L.R. 56.1(b)(3)(B).
The nonmoving party may also present a separate statement of
additional facts “consisting of short numbered
paragraphs, of any additional facts that require the denial
of summary judgment, including references to the affidavits,
parts of the record, and other supporting materials relied
upon.” L.R. 56.1(b)(3)(C). “All material facts
set forth in the statement required of the moving party will
be deemed to be admitted unless controverted by the statement
of the opposing party.” Id. Similarly,
“[i]f additional material facts are submitted by the
opposing party . . ., the moving party may submit a concise
reply in the form prescribed in that section for a
response.” L.R. 56.1(a). If the movant fails to respond
properly to the opposing party's statement of additional
facts, those facts will be deemed admitted. Id.
parties sought and obtained leave to exceed the respective
80- and 40-statement limits on the number of paragraphs in a
moving party and responding party's Local Rule 56.1
statements. See N.D. Ill. L.R. 56.1(a), (b)(3)(C).
Defendants accuse Rivera of blatantly violating Local Rule
56.1 and the assigned judge's standing order on summary
judgment motions. They urge the court to strike Rivera's
responses to their Local Rule 56.1 statements of material
facts and his Combined Statement of Facts in their entirety
or, failing that, disregard several paragraphs of those
papers. See Defs. Combined Reply 3-6, ECF No. 333.
Defendants identify six purported defects in Rivera's
Local Rule 56.1 submissions. As explained in the following
paragraphs, the court disregards certain material in
Rivera's Local Rule 56.1 submissions but leaves
resolution of legal issues and arguments on materiality to
the discussion on the merits.
Seventh Circuit repeatedly has held that the district court
is within its discretion to enforce strict compliance with
the requirements of Local Rule 56.1.” Hanover Ins.
Co. v. House Call Physicians of Ill., No. 15 C 3684,
2016 WL 1588507, at *2 (N.D. Ill. Apr. 19, 2016) (collecting
cases). This is because “[c]ompliance with local rules
like Rule 56.1 ensures the facts material to the issues in
the case and the evidence supporting such facts are clearly
organized and presented for the court's summary judgment
determination.” Curtis v. Costco Wholesale
Corp., 807 F.3d 215, 219 (7th Cir. 2015). “The
purpose of Rule 56.1 is to have the litigants present to the
district court a clear, concise list of material facts that
are central to the summary judgment determination.”
Id. And parties should be cognizant of the rule that
“district courts are not required to ‘wade
through improper denials and legal argument in search of a
genuinely disputed fact.'” Id. (quoting
Bordelon v. Chicago Sch. Reform Bd., 233 F.3d 524,
529 (7th Cir. 2000)). With these principles in mind, the
court considers defendants' objections to Rivera's
Local Rule 56.1 submissions.
some paragraphs of Rivera's Local Rule 56.1 submissions
include legal argument and arguments about what inferences
should be drawn from facts. Defendants sometimes respond
argumentatively in their Local Rule 56.1 submissions. The
court disregards the portions of the parties' Local Rule
56.1 submissions that make legal arguments and assert legal
conclusions, which are not factual statements at all. See
Patterson v. Ind. Newspapers, Inc., 589 F.3d 357, 359-60
(7th Cir. 2009) (affirming decision to disregard
“argumentative” Local Rule 56.1 statement);
Fetzer v. Wal-Mart Stores, Inc., No. 13 C 9312, 2016
WL 792296, at *8 (N.D. Ill. Mar. 1, 2016) (Gottschall, J.)
(“[L]egal arguments in Rule 56.1 submissions are
improper so the court will disregard legal arguments and
conclusions in the plaintiffs' Rule 56.1
submissions.” (citing Judson Atkinson Candies, Inc.
v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382 n.2
(7th Cir. 2008)); Malec v. Sanford, 191 F.R.D. 581,
584 (N.D. Ill. 2000). The noncompliant paragraphs will not be
stricken, however, as doing so would in some cases throw out
a properly supported assertion along with a legal argument or
conclusion. Instead, the properly supported factual assertion
stays in the Local Rule 56.1 statement; the court disregards
the portion of any factual statement that contains legal
arguments or conclusions. Minn. Life Ins. Co. v.
Kagan, 847 F.Supp.2d 1088, 1093 (N.D. Ill. 2012)
(denying motion to strike portions of Local Rule 56.1
statements containing legal conclusions but disregarding
conclusions); Phillips v. Quality Terminal Servs.,
LLC, 855 F.Supp.2d 764, 771-72 (N.D. Ill. 2012) (same).
next object that some paragraphs of Rivera's combined
Statement of Additional Facts make compound factual
assertions. For instance, defendants claim Paragraphs 1 and
40 of the Combined Statement of Additional Facts, e.g., ECF
No. 317, consist of seven and eight “facts”
respectively, each of which should apparently be in a
separate paragraph. Paragraphs 1 and 40 are each two
sentences long. The court does not count facts or sentences
mechanically, however, though the number often increases
complexity. “A statement of material facts that
presents one fact at a time per paragraph would not be an
efficient manner in which to present a statement of material
facts and would not be consistent with Local Rule
56.1.” Nettles-Bey v. Burke, No. 11 C 8022,
2015 WL 4638068, at *5 (N.D. Ill. Aug. 4, 2015) (Gottschall,
J.) (quoting Fishering v. City of Chicago, No. 07 C
6650, 2009 WL 395462, at *2 (N.D. Ill. Feb. 18, 2009))
(alteration omitted). At some point, paragraphs become
objectively too long, but deciding when requires an exercise
of discretion with sensitivity to the needs and complexity of
the case. See Benuzzi v. Bd. of Educ. of City of
Chicago, 647 F.3d 652, 655-56 (7th Cir. 2011)
(“[W]hat is ‘short' to one judge may be long
to another, and a single judge's definition might
reasonably vary from case to case.”). Generally, when
the presentation becomes more confusing than efficient, as
when the facts in a single paragraph are jumbled or
disjointed, appear to be non sequiturs, or their connection
must be explained by an improper argument, Local Rule 56.1
requires the paragraph to be split. See Nettles-Bey,
2015 WL 4638068, at *5 (concluding that plaintiff properly
combined sentences because “the sentences [were] all
clearly interrelated so that it would make no sense to split
them into separate paragraphs”); Cardoso v. Cellco
P'ship, No. 13 C 2696, 2014 WL 6705282, at *3 (N.D.
Ill. Nov. 26, 2014) (“Local Rule 56.1 directs counsel
to present facts in ‘short numbered paragraphs' to
prevent lengthy stream-of-consciousness submissions that are
difficult for opposing counsel and the court to
the practical issues involved, defendants say that they have
sought only to strike the “most egregious”
portions of Plaintiff's Combined Statement of Additional
Facts “that are too lengthy and disjoined to allow a
proper response.” Defs. Combined Reply 5, ECF No. 333
(citing specific paragraphs). Yet defendants responded to
each of the allegedly egregious paragraphs, albeit while
reserving the instant objection. See, e.g., Resp. to
SAF ¶¶ 1, 3, 19, 68, ECF No. 332. Moreover, the
sentences themselves, though there are sometimes as many as
eleven of them, bear a logical relationship to one another so
that keeping them together as a unit makes sense. Given the
needs of this case, keeping the basic, mostly undisputed
facts of the shooting and drive to the hospital together in
paragraph 3 seems sensible, for instance. Paragraph 120's
recitation of a purported expert witnesses' career
history may be unnecessary and unhelpful because it
regurgitates the record rather than streamlines the
presentation of material issues. But even so, the sentences
reciting the history have a logical connection. The court can
see no benefit in requiring further disaggregation. See
Nettles-Bey, 2015 WL 4638068, at *5.
defendants contend that certain paragraphs of Plaintiff's
Combined Statement of Additional Facts do not cite specific
evidentiary material in the record. Local Rule 56.1 makes it the
“the litigants' duty to clearly identify material
facts in dispute and provide the admissible evidence that
tends to prove or disprove the proffered fact.”
Curtis, supra, 807 F.3d at 219 (affirming
district court's decision to disregard portions of Local
Rule 56.1 statement because litigant did not cite supporting
evidentiary material); see also Patterson,
supra, 589 F.3d at 359- 60 (affirming decision to
disregard material for failure to cite portions of the record
creating factual dispute because the Seventh Circuit has
“repeatedly held that the district court is within its
discretion to strictly enforce compliance with its local
rules regarding summary-judgment motions” (quoting
FTC v. Bay Area Bus. Council, Inc., 423 F.3d 627,
633 (7th Cir. 2005)). An examination of the paragraphs to
which defendants object reveals that Rivera generally cites
evidentiary materials by page and line where appropriate.
E.g., ECF No. 317 ¶¶ 1, 9. Defendants
assert instead that the cited evidence does not support the
proposition for which it is cited, e.g., Resp. to
SAF ¶¶ 1, 9, or mischaracterizes the evidence,
e.g., id. ¶¶ 16, 24, 26, 27.
Because these objections turn out to be issue-specific,
fact-intensive, and sometimes immaterial, the court addresses
them infra to the extent they bear on material issues.
fourth issue defendants raise is plaintiff's use of cross
references. E.g., Pl. SAF ¶¶ 11, 16, 19,
21, 50, 128. Local Rule 56.1 requires citations to the record
evidence rather than cross reference to a reference to a
citation; using a cross reference saves counsel time but
offloads on the court the burden of identifying what is
factually disputed and whether the dispute is material.
Schlessinger v. Chicago Hous. Auth., 130 F.Supp.3d
1226, 1228 (N.D. Ill. 2015) (Gottschall, J.) (finding
response that cited statement of additional facts rather than
record violated Local Rule 56.1). The court therefore
disregards the portions of Plaintiff's Combined Statement
of Additional Facts that cite other paragraphs of it. See
defendants claim that several of plaintiff's additional
facts are immaterial. A Local Rule “56.1(a) statement
should be limited to material facts, that is, facts pertinent
to the outcome of the issues identified in the summary
judgment motion.” Malec, supra, 191 F.R.D. at
583 (emphasis omitted). Rivera argues vociferously that his
facts are material in the summary judgment sense, and the
answer to that question, in the appropriate context, lies
very much at the heart of the parties' dispute here.
Rather than attempt to winnow the voluminous statements to
only material paragraphs in the abstract, the court again
deems addressing materiality questions as they pertain to
particular issues to be the better course because it may
obviate the need to analyze each disputed paragraph. Cf.
Tarau v. Coltea, No. 15-CV-03545, 2017 WL 3521410, at *1
(N.D. Ill. Aug. 16, 2017) (“Because neither party
contends these facts are material, the court need not resolve
[a] dispute” about whether the facts should stricken.
defendants point out that Rivera's response brief cites
to an expert report not mentioned in his Combined Statement
of Additional Facts. See Pl. Combined Resp. 34-36,
ECF No. 321 (citing Report of Jennifer Dysart, Pl. Ex. 21).
The court has searched Rivera's Combined Statement of
Additional Facts but finds no reference to the expert by name
or the cited exhibit. See ECF No. 317. Defendants
therefore never had a procedurally proper opportunity, under
L.R. 56.1, to test the report as a summary judgment exhibit,
so the court disregards it, Pl. Ex. 21, at this stage.
See Greene v. CCDN, LLC, 853 F.Supp.2d 739, 744
(N.D. Ill. 2011) (“[T]he Court disregards any
additional statements of fact contained in a party's
response brief but not in its L.R. 56.1(b)(3)(B) statement of
additional facts.” (citing Malec, 191 F.R.D.
addressed the procedural issues pertinent to the parties'
Local Rule 56.1 statements, the court is ready to delve into
the facts and exhibits in earnest.
FACTUAL AND PROCEDURAL BACKGROUND
Summary of Complaint
complaint has eight counts. In Count I, he alleges that
defendants violated the due process clause by withholding and
suppressing exculpatory evidence. Compl. ¶¶ 51, 53,
ECF No. 1. He alleges in Count II that the officer defendants
conspired to violate his constitutional rights. In Count III,
Rivera brings failure to intervene claims; that is, he claims
one or more of the officer defendants stood by while other
officers violated his constitutional rights. Compl. ¶
64. Finally, in Count IV, Rivera seeks to hold the City
liable under Monell for his damages on the theory
that a City policy was the moving force behind the officer
defendants' alleged violations. Compl. ¶ 68.
V-VIII arise under Illinois law. In the order pleaded, they
are: a malicious prosecution claim (Count V), a civil
conspiracy claim (Count VI), a claim for intentional
infliction of emotional distress (Count VII), and a
respondeat superior claim (Count VIII).
addition to the City, Rivera names twelve former Chicago
police officers (all have retired) (actually the estate of
two) as defendants (“officer defendants”).
See Compl. ¶¶ 9-13, ECF No. 1; Resp. to
Officers SMF ¶ 2. John Leonard and Gillian McLaughlin
were the Chicago Police Department (“CPD”)
detectives initially assigned to the Valentin shooting. Resp.
to Officers SMF ¶ 2 (noting substitution of
Leonard's personal representative). McLaughlin is the
only female defendant. Id. ¶ 32.
was a Gang Crimes Specialist (sometimes “GCS”) as
were defendants Daniel Noon, John Guzman, Joseph Sparks, Paul
Zacharias, Steve Gawrys, and Joseph Fallon. Resp. to Officers
SMF ¶ 2. They were assigned to the Gang Crimes Unit (not
to be confused with Violent Crimes), sometimes referred to as
“Gang Crimes North.” Id.
Rocco Rinaldi (sued through his estate) and Russell Weingart
were sergeants in Gang Crimes North; defendant Edward Mingey
was a sergeant assigned to Gang Crimes North. Resp. to
Officers SMF ¶ 2. Each approved one or more reports in
the Valentin investigative file. Id. at ¶¶
2, 65, 66, 72. For simplicity, the court refers to the
officer defendants by their last names and elides the
distinction between the estate of the two defendants who have
died and the former CPD officer.
The Valentin Investigation and Trial
bench trial began on April 5, 1990, and was continued to
April 16, 1988, on which date rebuttal and surrebuttal
witnesses testified and the court found Rivera guilty.
See Resp. to SAF ¶ 90; Trial Tr. at 77:10-14,
80:4-9, Pl. Ex. 3, ECF No. 313-3. The state trial court
imposed an 80-year sentence (the maximum allowed) on July 9,
1990. Trial Tr. at 114:21-115:1. Kenneth J. Wadas
(“Wadas”) represented Rivera through the trial
and sentencing. The following individuals testified: the
victim's father, Israel Valentin; Lopez; Guevara;
Detective Craig Letrich (“Letrich”); Leonard by
stipulation; the medical examiner, also by stipulation;
Rivera's pastor, Fernando Rivas; and a friend of
Rivera's named Guillermo Osorio. Resp. to SAF ¶ 90.
Valentin identified the victim. Trial Tr. at 6:16-7:24. The
medical examiner testified that Valentin died of a total of
11 gunshot-related wounds. See Id. at 53:13-18.
Lopez's Trial Testimony
testified that at around 3:40 p.m., he left his home at 3320
W. Cortland Street to go to a store to buy candy. Trial Tr.
at 18:5-19:11. He said he saw Valentin sitting in a red car
parked in an alley on Cortland. See Id. at
19:20-20:12. He saw someone standing about five feet away
from the car and firing at Valentin (whom he knew as a friend
of his sister's). See Id. at 21:15-23. He
testified that the man wore “all black” and that
“his hair” was dyed “brown or gold, ”
a color he associated with the Latin Kings gang. See
Id. at 21:24-23:10. The shooter had his back turned to
Lopez. See Id. at 21:10-12. Lopez ran to the store,
asked the store's owner to call the police, but the
store's owner did not want to do so, so Lopez returned to
the alley and hid in an indentation. See Id. at
23:11-20. The shooter looked around and then ran to a brown
Chevy parked nearby. See Id. at 26:7-14. Lopez told
the court that he could see the shooter's face as he ran,
and although he did not know the shooter's name, he
recognized him as someone he had seen playing basketball
“two or three times” in nearby Humboldt Park.
Id. at 25:21-26:6, 26:15-27:18. The brown car drove
away toward Spaulding. Id. at 28:6-12.
further testified that he told his sisters he knew who had
committed the crime. See Id. at 28:15-21. At some
time later (his trial testimony is not entirely clear on
this), he testified that he also told this story to police
officers and reviewed two photo books of Latin Kings for
“[a]n hour.” Id. at 29:5-30:4. He did
not pick out anyone from the first book but, according to his
trial testimony, he recognized Rivera's photograph and he
told “the police that was him.” Id. at
30:14-31:5. He answered “like, three questions”
more from the police, and “they left.”
Id. at 31:6-9.
testimony then jumps an uncertain number of days ahead to the
lineup that occurred on September 15, 1988, at Area Five
Violent Crimes. See Id. at 31:10-13. Lopez testified
that he viewed a lineup on that day and that he picked Rivera
out of the lineup. Id. at 31:16-32:7 (referring to
People's Ex. 4). When presented with a photograph of the
lineup he saw that day, Lopez put an X over Rivera's head
indicating that he was the person identified at the lineup.
Id. at 32:9-19; see also Lineup Photos, Pl.
Ex. 52 at 1 (including “X” mark).
clarified on cross examination that he was interviewed
“a few times” by police about the shooting.
Id. at 46:2-4. It is unclear from the record when
the alleged gang book identification occurred. See
Id. at 42:18-24 (testifying that it may have happened as
late as Sept. 12, 1988, “a few days” before the
Sept. 15, 1988, lineup).
cross examination Wadas brought out the fact that Lopez's
narrative was inconsistent with statements recorded in a
police report (discussed under the next heading of
“Leonard's Report”). See Id. at
46:5-48:8. Lopez did not recall telling the police that the
shooting started after, rather than before, he left the
store. See Id. at 48:1-4.
Letrich's Testimony and Leonard's Report
Submitted August 29, 1988
testified that he and his partner visited Valentin at Cook
County Hospital on August 30, 1988. Trial Tr. 56:2-5.
According to his testimony, he and his partner left the
hospital, retrieved an album of photographs of members of the
Imperial Gangsters street gang, showed that book to Valentin,
and he arrested Jose A. Rodriguez (“Rodriguez”)
the next day. See id. 56:13-58:2. Letrich
did not say how Valentin reacted to the photo book or that
Valentin picked anyone. See Id. at 57:5-13.
further testified that Rodriguez was released either on
August 31 or September 1, 1988. Id. at 58:23-59:1.
Wadas questioned Letrich about whether he or any other Area
Five police officers interviewed Valentin on August 29, 1988,
but Letrich did not recall. Id. at 60:10- 13.
Earlier in the trial, Wadas asked Lopez about Rodriguez.
Lopez did not recall telling the police that Rodriguez did
not shoot Valentin. See Id. at 49:3-5.
parties stipulated that Leonard interviewed Lopez on an
unspecified date and wrote a report about the interview.
See Id. at 64:17-65:22 (spelling Leonard's name
phonetically as “Lehner”). The report bears a
submission date of August 29, 1988. Pl. Ex. 4 at Wron 29-30,
ECF No. 313-4. At Lopez's trial, a portion of the report
was read into the record. A quote from the report follows.
Only the portion before the asterisks was read into the
record at trial.
The undersigned detectives, in continuation of the
investigation of the above captioned incident; interviewed an
eye-witness who stated in essence but not verbatim that on
date and time of this incident; LOPEZ was coming from the
store at corner of Kimball and Cortland. LOPEZ observed a
copper colored GM-type car coming out of the alley, traveling
northbound at approximately 3319 W. Cortland. The vehicle
turned east-bound on Cortland and stopped at approximately
3311 W. Cortland. LOPEZ indicated that said vehicle contained
2 M/WH's one of whom exited from the passenger's side
of the vehicle and began to walk toward 3320 W. Cortland
where the victim was seated behind the wheel of his vehicle.
Suddenly the M/WH began to run toward vehicle and LOPEZ
noticed a gun in M/WH's hand. LOPEZ believed he heard
three (3) shots but indicated that they were not very loud.
LOPEZ indicated that LOPEZ saw the victim lean forward and to
the right in the vehicle which victim had been seated.
LOPEZ informed R/D's that LOPEZ could identify the
shooter because LOPEZ recognized the shooter as a M/WH who
played baseball at Humboldt Park and LOPEZ had observed him
there on a few occasions.
LOPEZ did not know shooters [sic] name but was aware that
shooter was affiliated with the Latin Kings. LOPEZ then
viewed books and made an identification of one RIOS,
(16-D Latin King Page 40-D) as the M/WH who exited the copper
car and shot the victim. At this time there is no
identification of the driver.
Id. at Wron 29-30.
Rivera's Testimony and Alibi
then took the stand. He testified that he was not a member of
the Latin Kings in August 1988. Id. at 66:18-21. He
stated that he lived with his common law wife and their
five-month-old child when Valentin was shot. Id. at
66:22-24. He testified that his hair was not dyed at the time
and that he last played basketball at Humboldt Park six or
seven years prior to the shooting (making Lopez six years old
at the oldest). See Id. at 68:6-23. He stated that
he spent Saturday, August 27, 1988, at home with his family.
Id. at 70:12-16.
cross examination, Rivera stated that he had been a member of
the Latin Kings street gang six years prior to 1988 when he
was in high school. Id. at 74:3-11. He recalled that
he had been arrested at least once in or around
1982. See Id. at 74:12-18.
Guevara's Rebuttal Testimony
testified in rebuttal on April 16, 1988. He stated that he
knew Rivera “for quite a while prior to the
arrest.” Id. at 81:2-7. Guevara testified that
when he arrested Rivera, Rivera's hair was unusual in
that “[i]n the back it was gold, like a little pigtail
died [sic] in gold.” Id. at 82:8-16. Guevara
also testified that he “play[ed] ball in Humboldt
Park” and worked primarily in the area in the summer of
1988. Id. at 82:21-83:1. He stated that he saw
Rivera in the park “numerous times” that summer.
Id. at 83:6-9.
cross examined Guevara. In response to questioning about
baseball (basketball was not mentioned), Guevara said that he
had never seen Rivera playing baseball. Id. at
83:23- 84:2. Wadas also had Guevara confirm that a photo
depicted an accurate side view of a lineup in which Rivera
participated and that Rivera looked the same as he did in the
lineup when he was arrested. Id. at 84:12-16;
see also Pl. Ex. 52 at CPD-105 (indeterminate
black-and-white sidelong photographs).
Surrebuttal Witnesses: Rivas and Osorio
trial concluded with two surrebuttal witnesses called by
Rivera. The first, Rivas, described Rivera's hair style
in August 1988 as “brown, kind of curly” and
testified that he did not recall him ever dyeing his hair.
See Trial Tr. at 87:3-22 (admitting Def. Ex. 1).
Rivas also testified that Rivera separated from the Latin
Kings in 1986. Id. at 88:16-20. Osorio testified
that he knew Rivera well in 1988, that his wife cut
Rivera's hair, and that Rivera never dyed his hair that
year. See Id. at 90:15-19, 91:2-12.
began his closing arguments with the point that the State did
not call any police officers to describe the investigation.
Id. at 93:10-19. He focused on the differences
between Leonard's August 29 report and Lopez's trial
testimony. See Id. at 93:20-95:3. He also pointed
out that if anything, Letrich's testimony implied that
Valentin identified the shooter as a member of the Imperial
Gangsters. See Id. at 95:16-96:20. Wadas argued that
a photo of Rivera introduced into evidence “shows long
hair down his neck, and there's no dyed hair, which would
be obvious in that photo.” Id. at 97:13-21.
The state disagreed with this characterization of the
photograph. See Id. at 99:5-13.
2010, Northwestern University's Center for Wrongful
Convictions agreed to represent Rivera. Resp. to SAF ¶
94. Two investigators interviewed Lopez at his Ohio home on
February 28, 2010. Resp. to Officers SMF ¶ 54, ECF No.
316. That interview led to the production of an interview
report, Lopez's affidavit, his eventual testimony in
state court in 2011, and his deposition in this action.
The 2010 Interview
notes of one of the interviewers, Cynthia Estes
(“Estes”), Officer Defs. Tab 54, ECF No. 305-55,
and her report, Officer Defs. Tab 55, ECF No. 305-56,
prepared three or four days later, record Lopez's initial
recantation. Lopez said he knew that Rivera was not the
shooter in 1988 and in 1990, but because Lopez was then a
“peewee” in another gang, he did not care about
what happened to Rivera, whom he believed to be a member of
the Latin Kings. Officer Defs. Tab 55 at 8. The report also
states that Lopez “did try to tell [the police] it was
not the real guy” in 1988, “but they kept saying
to him, ‘don't be afraid, we will protect you, we
will keep you safe.'” Id.
to notes Estes made during the interview and her report,
see Resp. to Officers SMF ¶ 56, Lopez stated
that the police took him to his home after the shooting and
had him review Latin King photo books, Estes Report 9. The
report further states that Lopez “just kind of got sick
of looking at them so he picked out someone who looked
similar to the real shooter.” Estes Report 9; Officer
Defs. Tab 54, Estes Notes at MJC 12.11.13 00012. Lopez saw
the real shooter about a week later. See Id. When
confronted with his trial testimony, Lopez acknowledged that
his testimony that he had recognized Rivera from Humboldt
Park was false. Estes Report 13-14.
report records Lopez' statement that he thought “he
may have picked [Rivera] from a line-up a few days later,
” i.e., after the initial identification on August 27,
1988. Id. at 11. The report further states:
He thinks a few days after that they showed him more photos,
and that is when he told them Rivera was not the guy, but the
lady wouldn't listen. We asked which lady. He said she
was not in a uniform, maybe she was a lawyer. She was older
with blond hair and some white hair. Mr. Lopez pointed to my
hair and said, “kind of like yours.” Mr. Lopez
said he thinks it was the third time he was brought back that
he tried to tell them they had the wrong guy but by then no
one wanted to hear it. He said they just kept saying to him
he didn't need to be afraid. He said it seemed as if they
really did not want to hear him.
Id. Finally, the following passage appears in
Estes' report: “Mr. Lopez said he wants us to know
that the cops did not coerce him into picking anybody out.
They just didn't want to hear when he tried to make it
right.” Estes Report 12.
The Lopez Affidavit (2010)
six rounds of draft affidavits and two more in person
meetings, see Resp. to Officers SMF ¶ 58, Lopez
signed an affidavit prepared by Rivera's counsel on June
12, 2010, (“the Lopez affidavit”), Pl. Ex 20, ECF
No. 313-24. In it, Lopez averred that his testimony was false
and that he “knew it at the time.” Lopez Aff.
¶ 5. He described the shooter as having long hair
“with a streak of light color running through
it.” Id. ¶ 9.
his identification on the night of the Valentin shooting,
Lopez averred that he made the assumption that the shooters
were members of the Latin Kings because the car in which they
left turned right on Spalding into that gang's territory.
Id. ¶ 10. He picked out a photo he later
learned was Rivera's “[t]hat same evening, ”
meaning August 27, 1988. Id. ¶ 11.
affidavit then described a “first line-up of possible
suspects.” Lopez Aff. ¶ 12. The first lineup,
states his affidavit, occurred “[w]ithin a few days of
the shooting, ” and he “recall[ed] that [his]
mother and sister . . . accompanied [him] to the police
station but were not present in the room during the lineup
procedure.” Id. The first lineup was not
mentioned at trial or in prior proceedings.
second lineup, which a jury could reasonably decide was the
September 12, 1988, lineup, occurred “[a]bout two weeks
after the shooting.” Lopez Aff. ¶ 14. Lopez's
affidavit describes what occurred at the second lineup as
[T]he police asked me to come to the police station in order
to view a second lineup. It was at this point that I told a
non-uniformed police officer that Jacques Rivera was not the
shooter, and that the real shooter was an Imperial Gangster
and a neighborhood guy. I told the same thing to a woman who
could have been a lawyer. No one wanted to hear what I had to
say. The police officer and possible lawyer kept saying
“don't be afraid, we will protect you, we will keep
you safe.” What the police officer and possible lawyer
did not understand is that I was not afraid - I wanted to
take back my identification of Jacques Rivera because I had
made a mistake and Jacques Rivera was not the shooter.
At some point I made the decision that it was just easier to
stick with my original identification of Jacques Rivera as
the shooter. I then proceeded to identify Jacques Rivera in
the second lineup knowing that he was not the killer.
Id. ¶¶ 14-15 (paragraph numbering
Lopez's 2011 Testimony at Rivera's
was the lead witness at Rivera's 2011 post-conviction
hearing held June 23, 2011. Post-Conviction Hr'g Tr.
38-96, Pl. Ex. 5, ECF No. 313-5. At one point, Lopez stated
that the police pointed Rivera out to him. Id. at
93:13-18. This drew a question from the court. See
Id. at 93:19-20. Lopez clarified that when he pointed
out Rivera's photograph, police officers asked him,
“have you seen him anywhere else, at a park, playing
you know, baseball, stuff like that, and [Lopez] said
yes.” Id. at 93:23-94:3.
testified about the first lineup, stating that it occurred
“[a]t some point.” Id. at 53:14-16. He
testified a detective conducted the lineup, and gave a
description generally matching Guevara's
appearance at the time. Compare Id. at
55:11-15, with Pl. Ex. 37 (photograph of Guevara).
According to Lopez's testimony, he identified Rivera at
the first lineup. Post-Conviction Hr'g Tr. at 55:22-56:2.
also testified that he saw the shooter on the street before
the second lineup. See Id. at 56:19-57:4. Lopez also
described his efforts to recant at the second lineup.
Id. at 58:24-62:6. He stated that the light-haired
woman told him not to be afraid when he confessed as though
she was “trying to . . . console” him.
Id. at 60:11-15; see also Id. at
83:18-88:14 (attempting to clarify on cross examination the
sequence of events at the second lineup). On cross
examination Lopez testified that Guevara was present at the
second lineup and further described the woman with whom he
spoke as not dressed like a police officer and carrying a
folder that might have been a Redweld. See Id. at
83:2-17. He testified that neither “the police”
nor “anyone else in authority at the station that night
. . . force[d] [him] to identify Jacques Rivera as the
shooter . . . during that second lineup.” Id.
62:12-17; see also Id. at 67:4-12, 89:9-19
(testifying that neither the police nor the prosecutor
pressured him to testify falsely at trial). Lopez learned for
the first time during his cross examination that Rivera was
released after the first lineup. See Id. at 79:1-6.
Lopez's 2013 Deposition
29, 2013, Lopez sat for a deposition during discovery in this
case. Pl. Ex. 6A, ECF No. 313-6. Lopez testified that he had
not seen the shooter before August 27, 1988, and that he
participated in two lineups during the Valentin
investigation. See Lopez Dep. 18:3-19, 58:21-59:3,
cited in Resp. to SAF ¶ 27. He again testified that he
picked Rivera at the first lineup. Lopez Dep. 82:9-16.
inferences favorable to Rivera, Lopez recalled interacting
with Guevara but no other officers after the night of the
shooting. See Lopez Dep. 75:19-77:24, cited in Resp.
to SAF ¶ 41. He recounted a materially similar version
of seeing the real shooter about a week later. See
Lopez Dep. 87:24-90:16. He also testified again that that he
told Guevara and a woman with white, yellow, or blond hair
carrying a “binder full of papers” that he had
identified the wrong person, but they assured him that
‘everything was going to be fine.” Lopez Dep.
95:1-97:18 (“They assumed that I was afraid and that I
wanted to change my story, because I was afraid, but that was
not the case.”); see also Resp. to Pl. SAF
Recordkeeping in the CPD
background on recordkeeping helps to understand the evidence
on what documents were produced before Rivera's trial. By
1988 each case referred to the CPD's detective area
received a sequentially assigned Records Division
(“RD”) number. Resp. to City SMF ¶ 20.
Separately maintained in the records division, where
applicable, each page of an RD for crimes like murder for
which there is no statute of limitations was stamped
“permanent retention file, ” but the documents
were not always stamped immediately. See Resp. to
City SMF ¶ 21; Hickey Dep. 189:12-190:9, City Tab 25,
ECF No. 307-2. At a minimum, the permanent retention file
maintained by the Chicago Police Department's Records
Division (also called the “RD file”), included
the initial case incident report opening the case and formal
supplementary reports (sometimes “SR's”).
Resp. to City SMF ¶ 21. But the City has evidence that
the RD file was not intended to include every document
created during an investigation. City SMF ¶ 22. It is
undisputed that after 1982, “RD Files, or permanent
retention files, did not contain general progress reports,
notes or any other investigative material from an
investigation other than the supplementary reports.”
Resp. to City SMF ¶ 22 (undisputed fact but disputing
that practices were uniform). Other “miscellaneous
police reports” including General Progress Reports
(“GPRs”) were generally kept, if at all, in the
headquarters of the CPD area to which the case is assigned.
Hickey Dep. 192:2-22 Pl. Ex. 39A.
1982 and 1986, the CPD issued four directives and orders
aimed at regularizing the practice of creating RD files, on
the one hand, and separate, noncentralized investigative
files on the other. See Resp. to City SMF
¶¶ 22-30. Effective February 3, 1983, Special Order
83-1, which applied to “Detective Division field units,
” for the first time mandated the use of GPRs “by
all detectives assigned to violent crime field
investigations. This document is designed to standardize the
recording of handwritten notes and memoranda . . . . normally
generated by investigating detectives during the course of a
violent crime field investigation.” Pl. Ex. 60 at 1, 3,
ECF No. 313-73, rescinded by Special Order 83-2, City Tab 30
(eff. May 2, 1983). The order and it successors required all
documents to be placed in the file and logged on a separate
inventory sheet. Id. at 3; accord CPD
Detective Div. Special Order 86-3, Pl. Ex. 54, ECF No. 313-67
(May 19, 1986, eff. May 29, 1986). The orders further
required the inventory sheet to be forwarded to the Records
Division for inclusion in the permanent retention file and
required all documents, even those not included in the RD
file, to be maintained in what the order defined as the
“investigative file, ” a folder kept by the
investigating unit. Special Order 86-3 at RFC 019365; see
also Id. at RFC 019363 (defining “investigative
Order 83-2 added a requirement that two copies of the
inventory sheet be forwarded either to the CPD's Office
of Legal Affairs or the State's Attorney, as appropriate,
“[w]henever a subpoena or discovery motion is received
in any case.” City Tab 30 at 4, ECF No. 307-3. Special
Order 86-3, which superseded Special Order 83-2, contained no
comparable language. See Brasfield Report 29, Pl. Ex
12, ECF No. 313-15. Investigative files for
“Cleared/Closed Homicide Cases, ” as the Valentin
shooting then was, had to be forwarded to the “Records
Division for postconviction retention” after final
court disposition. Id. at RFC 019365; see also
Id. (establishing periodic, unannounced inspections of
files to ensure compliance); Resp. to City SMF ¶ 30.
points to evidence tending to show that these written
policies were not always followed. See Pl. SAF
2002, Wadas produced a copy of his file for the Rivera case
to the Bluhm Legal Clinic at Northwestern University, but
this copy was lost. Resp. to City SMF ¶ 40. An index of
the papers in the 2002 version of Wadas file survived,
however. Pl. Ex. 16 at RFC 808. Wadas produced his litigation
file during discovery in this case in 2013. Pl. Ex. 16, ECF
2013 version of Wadas' file contained 341 pages. Adding
the page counts on the index of the 2002 version of the Wadas
file yields a total of 328 pages. See Pl. Ex. 16 at
in this litigation defendants produced the RD file for the
Valentin investigation. Resp. to City SMF ¶ 41. Rivera
attached the RD file, which he labels the street file,
produced by the City to his summary judgment response and
marked it as Exhibit 4. The ...