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Rivera v. Guevara

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

May 11, 2018

REYNALDO GUEVARA et al., Defendants.


          Joan B. Gottschall, United States District Judge

         On the 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 ¶¶ 2-3.[1] 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.

         As the 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)).

         The 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.

         Rivera 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 defendants' motion.


         Before 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.

         A. Summary Judgment Standard

         Summary 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)).

         The 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).

         B. Local Rule 56.1 Statements

         Local 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.

         The 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.

         “[T]he 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.

         First, 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).

         Defendants 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 assess.”).

         Recognizing 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.

         Third, defendants contend that certain paragraphs of Plaintiff's Combined Statement of Additional Facts do not cite specific evidentiary material in the record.[2] 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.

         The 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 id.

         Fifth, 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. (citation omitted)).

         Finally, 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. at 584)).

         Having 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.


         A. Summary of Complaint

         Rivera's 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.

         Counts 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).

         B. Parties

         In 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.

         Guevara 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.

         Defendants 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.

         C. The Valentin Investigation and Trial

         Rivera's 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.

         Israel 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.

         1. Lopez's Trial Testimony

         Lopez 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.

         Lopez 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.

         Lopez's 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).

         Lopez 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).

         Also on 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.

         2. Letrich's Testimony and Leonard's Report Submitted August 29, 1988

         Letrich 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.

         Letrich 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.

         The 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, Jose[3] (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.

         3. Rivera's Testimony and Alibi

         Rivera 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.

         On 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.[4] See Id. at 74:12-18.

         4. Guevara's Rebuttal Testimony

         Guevara 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.

         Wadas 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).

         5. Surrebuttal Witnesses: Rivas and Osorio

         The 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.

         6. Closing Arguments

         Wadas 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.

         D. Lopez's Recantation

         In 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.

         1. The 2010 Interview

         The 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.

         According 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.

         The 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.

         2. The Lopez Affidavit (2010)

         After 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.

         Explaining 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.

         Lopez's 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.

         The 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 follows:

[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 omitted).

         3. Lopez's 2011 Testimony at Rivera's Post-Conviction Hearing

         Lopez 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.

         Lopez 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[5] 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.

         Lopez 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.

         4. Lopez's 2013 Deposition

         On May 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.

         Drawing 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 ¶ 53.

         E. Documentary Evidence

         1. Recordkeeping in the CPD

         Some 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.

         Between 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 file”).

         Special 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.

         Rivera points to evidence tending to show that these written policies were not always followed. See Pl. SAF ¶¶ 112-14.

         2. Wadas File

         In 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 No. 313-19.

         The 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 RFC 808.

         Early 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 ...

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