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Harris v. City of Chicago

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

May 11, 2018

CITY OF CHICAGO, et al., Defendants.


          AMY J. ST. EVE United States District Court Judge

         After a three-week jury trial, at which over 20 witnesses testified, including seven experts, a jury returned a verdict in favor of Chicago Police Department (“CPD”) Officer Defendants Anthony Noradin, Demosthenes Balodimas, Robert Bartik, Michael Landando, Randall Wo, John Day, John Kelly, and Robert Cordero and against Plaintiff Nicole Harris on all counts.[1] Before the Court is Harris' motion for a new trial brought pursuant to Federal Rule of Civil Procedure 59(a). For the following reasons, the Court denies Harris' Rule 59(a) motion.


         In her Complaint, Harris alleged 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 part on a false and fabricated confession elicited during hours of intermittent interrogation by Chicago Police Officers, including a videotaped confession played to the jury. After the jury convicted her of murder, the Circuit Court of Cook County judge sentenced Harris to 30 years in prison. On March 13, 2009, the Illinois Appellate Court affirmed Harris' conviction, and thereafter, the Supreme Court of Illinois denied her petition for leave to appeal on September 30, 2009.

         After exhausting her state court post-conviction remedies under the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq., Harris brought a habeas petition pursuant to 28 U.S.C. § 2254(d)(1) in the United States District Court for the Northern District of Illinois. After the district court denied her petition for a writ of habeas corpus, on October 18, 2012, the United States Court of Appeals for the Seventh Circuit reversed the district court's denial with instructions to grant the writ unless the State elected to retry Harris within 120 days after issuance of the mandate. See Harris v. Thompson, 698 F.3d 609, 613 (7th Cir. 2012). The mandate issued on December 3, 2012, and on February 25, 2013, the State released Harris from prison on bond. On June 17, 2013, the Cook County's State's Attorney dismissed all charges against Harris, and on January 25, 2014, the Circuit Court of Cook County granted Harris a Certificate of Innocence pursuant to 735 ILCS 5/2-702. Harris filed the present lawsuit on June 12, 2014.

         Once the Executive Committee reassigned this matter on February 17, 2017, and prior to the jury trial, the Court ruled on over 30 written motions in limine, most of which involved detailed analyses that the Court issued via written orders. The Court also issued written orders concerning numerous expert motions brought pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and conducted an evidentiary hearing in relation to Harris' false confession expert, Dr. Richard Leo. In addition, the Court considered oral evidentiary motions before and during trial.[2] The Court also conducted pre-trial and jury instruction conferences on September 12, 2017 and October 11, 2017, during which the Court carefully considered the parties' proposed jury instructions and made rulings on many of the instructions. The Court held the final jury instruction conferences during the last days of trial after the parties had proffered the majority of the trial testimony and documentary evidence. The jury instruction process was an ongoing, collaborative effort starting at the end of June 2017 and ending in mid-November 2017 when the Court instructed the jury. The Court instructed the jury on the following claims: (1) a Fourteenth Amendment due process fabricated evidence claim; (2) a Fourteenth Amendment due process coerced confession claim; (3) a constitutional failure to intervene claim; (4) a constitutional conspiracy claim; (5) a state law malicious prosecution claim; (6) a state law intentional infliction of emotional distress claim; and (7) a state law conspiracy claim. The jury found for Defendants on each of these claims.


         Under Rule 59(a), a “new trial should be granted ‘only when the record shows that the jury's verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to be overturned or shocks our conscience.” Estate of Burford v. Accounting Practice Sales, Inc., 851 F.3d 641, 646 (7th Cir. 2017) (citation omitted); see also Prime Choice Servs., Inc. v. Schneider Logistics Transloading & Distrib., Inc., 861 F.3d 633, 635 (7th Cir. 2017). “The district court has the discretion to ‘grant a new trial on all or some of the issues - and to any party, ' and a new trial should be granted if a prejudicial error occurred[.]” Hillmann v. City of Chicago, 834 F.3d 787, 793 (7th Cir. 2016) (internal citation omitted). The Seventh Circuit reviews the denial of Rule 59(a) motions for an abuse of discretion. Haze v. Kubicek, 880 F.3d 946, 950 (7th Cir. 2018). In general, a district court abuses its discretion when no reasonable person would agree with its rulings. Dunn v. Menard, Inc., 880 F.3d 899, 905 (7th Cir. 2018).

         The Seventh Circuit considers “a district court's jury instructions with deference, analyzing them as a whole to determine if they accurately state the law and do not confuse the jury.” Doornbos v. City of Chicago, 868 F.3d 572, 580 (7th Cir. 2017); see also Sanchez v. City of Chicago, 880 F.3d 349, 355 (7th Cir. 2018) (“We review de novo whether a challenged jury instruction fairly and accurately summarized the law, but the trial court's decision to give a particular instruction is reviewed for an abuse of discretion.”) (citation omitted). “If an instruction is legally deficient, a new trial is required only if the flawed instruction could have confused or misled the jury causing prejudice to the complaining party.” Doornbos, 868 F.3d at 589; see also Armstrong v. BNSF Ry. Co., 880 F.3d 377, 381 (7th Cir. 2018).

         Courts consider evidence unfairly prejudicial if it induces jurors to decide a case on an improper basis, such as an emotional one. Thorncreek Apartments III, LLC v. Mick, 886 F.3d 626, 634 (7th Cir. 2018). To obtain a new trial, where a party “is complaining that the district court committed an evidentiary error, he must establish not only that the court's decision was unreasonable but that the error in admitting or excluding the evidence in question affected his substantial rights.” United States v. Whiteagle, 759 F.3d 734, 756 (7th Cir. 2014). Put differently, “to warrant a new trial, an evidentiary error must affect the losing party's substantial rights - that is, there must be a significant chance that the flawed ruling affected the outcome of the trial.” Thorncreek Apartments III, 886 F.3d at 634.


         In her Rule 59(a) motion for a new trial, Harris makes the following arguments: (1) a confluence of errors resulted in negating her Certificate of Innocence and rendered her trial unfair; (2) the Court erred in its rulings in relation to her son Diante Dancy's competency hearing and deposition testimony; (3) the Court erred in its Federal Rule of Evidence 404(b) ruling in relation to Defendant Bartik; and (4) the Court erred in restricting the testimony of three of Harris' expert witnesses. The Court addresses each argument in turn.

         I. Certificate of Innocence and Related Rulings

         In her motion for a new trial, Harris first argues that the Court's rulings concerning her Certificate of Innocence (“COI”), along with other related rulings, rendered her trial unfair. To give context, in January 2014, the Chief Criminal Judge of the Cook County Circuit Court granted Harris a COI pursuant to 735 ILCS 5/2-702. Specifically, in September 2008, the Illinois legislature enacted 735 ILCS 5/2-702, which “permits a person who served time in prison on a conviction that is later set aside to seek a ‘certificate of innocence' from the court that had convicted him.” Rodriguez v. Cook Cnty., Ill., 664 F.3d 627, 629 (7th Cir. 2011). To obtain a Certificate of Innocence under Section 2-702, the petitioner must prove by a preponderance of evidence that:

(1) [she] was convicted of one or more felonies by the State of Illinois and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence;
(2)(A) the judgment of conviction was reversed or vacated, and the indictment or information dismissed or, if a new trial was ordered, either [she] was found not guilty at the new trial or [she] was not retried and the indictment or information dismissed; …;
(3) [she] is innocent of the offenses charged in the indictment or information or his or her acts or omissions charged in the indictment or information did not constitute a felony or misdemeanor against the State; and
(4) [she] did not by his or her own conduct voluntarily cause or bring about his or her conviction.

735 ILCS 5/2-702(g); People v. Fields, 959 N.E.2d 1162, 1165 (1st Dist. 2011). In Fields, the Illinois Appellate Court stated “that the plain language of section 2-702 shows the legislature's intent to distinguish between a finding of not guilty at retrial and actual innocence of the charged offenses.” Fields, 959 N.E.2d at 1166; see also Rudy v. People, 984 N.E.2d 540, 543 (1st Dist. 2013). The Fields decision further instructed “that in determining whether defendant showed by a preponderance of evidence that he is innocent of the murders, the court was required to consider the materials attached to defendant's petition in support of his innocence claim … in relation to the evidence presented against him at both trials.” Fields, 959 N.E.2d at 1166.

         Harris' COI is a boilerplate form citing the language in Section 2-702(g) on which the Chief Criminal Judge checked the following boxes:

After September 22, 2008, the Defendant/Petitioner's indictment or information was dismissed or s/he was acquitted, and Petitioner was filed within 2 years of the dismissal of the indictment or information or acquittal;
The Defendant/Petitioner is innocent of the offenses charged in the indictment or information, or his/her acts or omissions charged in the indictment or information did not constitute a felony or misdemeanor against the State[.]

(Pl.'s Trial Ex. #1.) The remainder of Section 2-702(g)'s language is stated on Harris' COI form.

         In January 2017, Defendant Officers filed a motion in limine seeking to bar any reference to Harris' COI. In Harris' legal brief in response to the motion to bar, she argued that “the jury's primary focus should be on whether the Police Defendants fabricated incriminating evidence, Ms. Harris's confession, coerced her into reciting this false statement, and whether the Police Defendants conspired against her to maliciously prosecute and wrongfully inflicted emotion distress upon her.” (R. 263, Resp. Brief, at 7.) The Court agreed in large part and denied Defendant Officers' motion to bar reference to Harris' COI in a written order on March 29, 2017. In that ruling, the Court stated:

Plaintiff's certificate is relevant and admissible to demonstrate that Plaintiff's underlying criminal proceedings were terminated in her favor in relation to her malicious prosecution claim, see Swick v. Liautaud, 169 Ill.2d 504, 512 (Ill. 1996), as well as to her damages if Defendants argue that Plaintiff committed the crime. See Kluppelberg, 84 F.Supp.3d [741, ] 746 [(N.D. Ill. 2015)](citing Parish v. City of Elkhart, Ind., 702 F.3d 997, 1003 (7th Cir. 2012). Also, Plaintiff's Certificate of Innocence “may bear on the due process claim insofar as it is needed to keep the jury's focus on the materiality issue as opposed to [plaintiffs] actual guilt or innocence.” Kluppelberg, 84 F.Supp.3d at 747.
Furthermore, the Court rejects Defendants' argument that the risk of unfair prejudice would substantially outweigh the highly probative Certificate of Innocence, especially because the Certificate of Innocence does not make any findings regarding the CPD Officer Defendants[.] See Kluppelberg, 84 F.Supp.3d at 747; see also Common v. City of Chicago, 661 F.3d 940, 947 (7th Cir. 2011) (“Evidence is ‘unfairly prejudicial in the context of Rule 403 if it will induce the jury to decide the case on an improper basis, commonly an emotional one, rather than on the evidence presented.'”) (citation omitted).

(R. 313, 3/29/17 Order, at 3-4.)

         Despite this favorable ruling, Harris now argues that the Court's other rulings and “improper” COI jury instruction, along with Defendants' arguments, negated the weight of the COI in such a way that it caused her substantial prejudice. In particular, Harris maintains that the Court erred by:

. Providing an instruction about the COI with the effect of telling the jury that the COI had no bearing on the case, that the state court that issued the COI considered none of the same issues in granting the COI, that the jury should ignore the COI by focusing on evidence adduced in this case alone, and failing to instruct that the jury could properly consider the COI;
. Allowing the Defendants to question Ms. Harris about the basis for the Seventh Circuit opinion, i.e., that Ms. Harris' then 5-year old son, Diante, should have been allowed to testify and that she had ineffective assistance of counsel, but not allowing Plaintiff to question her about other aspects of the opinion, such as that the Seventh Circuit strongly questioned the voluntary nature of her confession;
. Requiring Plaintiff to stipulate to or face a jury instruction regarding the two bases for the Seventh Circuit's habeas opinion; and
. Allowing Defendants to examine Ms. Harris about a response to a Request to Admit stating that no court had ever found her confession was coerced and allowing that response to be admitted into evidence.

(R. 457, Pl.'s Opening Brief, at 3.) The Court turns to each argument, as well as whether a “confluence of errors” rendered Harris' trial unfair.

         A. COI Jury Instruction

         In the last days of trial after the parties had presented the majority of their trial testimony and documentary evidence, the Court conducted final jury instruction conferences. Throughout the pre-trial process, the parties had submitted proposed jury instructions and made arguments in relation to the COI instruction. At the November 13, 2017 final jury instruction conference, the Court discussed the COI instruction with the parties, especially in light of conforming the instruction to the trial evidence. In doing so, the Court clarified:

I do think it is important to tell the jury - given all of the testimony that we have heard and, quite frankly, given the title of the Certificate of Innocence that she has received, I do think it is important to tell the jury, given the focus that you have had on this during the trial, that the fact that she got this does not mean that the plaintiff has proven her case, essentially. It does not mean that - the Certificate of Innocence does not establish that the defendants here violated her constitutional rights or her state rights or that her confession was fabricated. Those are issues for the jury.

(11/13/17, JI Conf. Tr., at 10-11.) After considering the parties' arguments about the COI jury instruction, the Court carefully crafted the COI jury instruction as follows:

You have heard evidence that Plaintiff Harris was awarded a Certificate of Innocence in the State court. The State court's decision to issue a Certificate of Innocence is not binding on you in this case.
The State court decided different issues than those before you when issuing the Certificate of Innocence. The State court was not asked nor did it decide the issue of whether Plaintiff's constitutional rights were violated or whether the Defendants engaged in any misconduct under state or federal law. The State court was not asked nor did it decide the issue of whether Plaintiff's confession was false, fabricated or coerced. These are issues for you alone to decide. You have listened to and heard all the evidence in this case and are to decide this case based on the evidence you heard in this case and this case alone.

(R. 443, Final JI, at 31.)

         In her new trial motion, Harris does not argue that this jury instruction, alone, is legally deficient. Ernst v. City of Chicago, 837 F.3d 788, 794 (7th Cir. 2016) (“District courts have substantial discretion in how to precisely word jury instructions, provided that the final result, read as a whole, is a complete and correct statement of the law.”). Indeed, the Court based the COI jury instruction on Illinois statutes and case law, along with the Seventh Circuit Civil Pattern Jury Instructions. More specifically, the second sentence of the jury instruction is consistent with Illinois statutory law, namely, “[t]he decision to grant or deny a certificate of innocence shall be binding only with respect to claims filed in the Court of Claims and shall not have a res judicata effect on any other proceedings.” 735 ILCS 5/2-702(j). The first three sentences of the second paragraph are also accurate legal statements under Illinois law because the Circuit Court judge who granted Harris' petition for a Certificate of Innocence was required to consider Harris' petition in relation to the evidence presented at her 2005 criminal trial for first-degree murder. See Fields, 959 N.E.2d at 1166. Thus, although the prosecution and defense counsel offered evidence about Harris' confession at her 2005 criminal trial, including certain Defendant Officers' conduct in relation to her interrogation, the parties did not present evidence on the issues of accidental strangulation or false confessions and the judge instructed the jury as to the first-degree murder charge, not that Defendant Officers fabricated evidence or coerced Harris' confession. See People v. Harris, 904 N.E.2d 1077, 1092-95, 1098 (1st Dist. 2009). Moreover, at the January 23, 2014 hearing for Harris' Certificate of Innocence - at which the State took no position - Circuit Court Judge Paul Biebel stated that he had read the petition for a Certificate of Innocence and that he was familiar with the claims and general history of the case before granting the petition. (R. 219-3, 1/23/14 Hr'g Tr., at 3.) Finally, the Court based the last two sentences of the COI jury instruction on Seventh Circuit Civil Pattern Instruction 1.01, Functions of the Court and the Jury. These sentences are also consistent with other jury instructions explaining that the jury must consider all the evidence in this case. (R. 443, Final JI ## 3, 7, 10.)

         Although the COI instruction accurately states the law, for the sake of completeness, the Court turns to Harris' argument that it misled the jury and was confusing. See Doornbos, 868 F.3d at 580 (“If an instruction is legally deficient, a new trial is required only if the flawed instruction could have confused or misled the jury causing prejudice.”). In particular, Harris contends that the COI instruction was flawed because “[i]t failed to properly balance the COI's admissibility and the jury's obligation to consider it as proper evidence with Defendants' desire to abrogate its meaning.” (Opening Brief, at 10-11). Simply put, Harris is arguing that the jury instruction did not mention that the COI could be considered as evidence. That the instruction did not tell the jury that Harris' COI was evidence to be considered is a non-starter because not only was the COI admitted into evidence in front of the jury, there was no indication from the Court nor the parties that it was not evidence to be considered. Rather, defense counsel spent a considerable amount of time and energy attacking this evidence. Moreover, Harris' counsel discussed the COI in both opening statements and closing arguments. At closing, for example, Harris' counsel stated:

Now, when I first spoke to you during opening statements, I told you that three steps had to occur for Nicole Harris to begin - to begin - to awake from the nightmare that these defendants have created in her life. Step No. 1 was the appellate court telling the trial court to release her or retry her; and, Step No. 2, the Cook County State's Attorney's Office, who had prosecuted her, dismisses all charges against her and her conviction is vacated. Step No. 3 occurs when the chief judge of all the criminal courts of Cook County issues Nicole a Certificate of Innocence.
I'm going to say the whole word: Certificate of Innocence. Because the defendants only want to say a certificate. They don't like the full word. It's a Certificate of Innocence. And she was granted it without objection from the Cook County State's Attorney's Office and without opposition. And they had every right to oppose it, and they did not.

(11/16/17 p.m. Trial Tr., at 136-37.)

         As the parties acknowledge, district courts are not required to give an “idealized set of perfect jury instructions.” Hicks v. Forest Pres. Dist. of Cook Cnty., Ill., 677 F.3d 781, 791 (7th Cir. 2012) (citation omitted). Before and during trial, the Court and the parties worked closely together to fashion the jury instructions, including the COI instruction. The COI instruction fairly and accurately summarized the law. “[E]xamining the instructions as a whole, in a common sense manner, ” Saathoff v. Davis, 826 F.3d 925, 932 (7th Cir. 2016), Harris has not shown that the Court abused its discretion in instructing the jury as such. Karahodzic v. JBS Carriers, Inc., 881 F.3d 1009, 1016 (7th Cir. 2018) (“The trial court's decision to give a particular instruction is reviewed for an abuse of discretion.”).

         B. Habeas Decision

         Next, Harris contends that the Court's erroneous rulings in relation to the Seventh Circuit's decision resulting in the grant of Harris' petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1), further muddied the waters in relation to her COI. See Harris v. Thompson,698 F.3d 609, 613 (7th Cir. 2012). In general, federal habeas corpus proceedings are civil matters that are brought separately from the underlying criminal case after the petitioner has exhausted his or her state court remedies. United States v. Wilkozek, 822 F.3d 364, 368 (7th Cir. 2016) (citing United States v. Morgan, 346 U.S. 502, 506 n.4 (1954)); 28 U.S.C. § 2254(b)(1). It is well-established that in “conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). With these standards in mind, the Seventh Circuit addressed Harris' constitutional arguments that the trial court's exclusion of her then 5-year-old son Diante Dancy's testimony from her criminal trial violated her Sixth ...

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