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McCullough v. Hanley

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

August 12, 2019

Jack D. McCullough, Plaintiff,
v.
Illinois State Police Agent Brion Hanley, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Iain D. Johnston, United States Magistrate Judge.

         INTRODUCTION

         This order addresses the scope of a waiver of the attorney-client privilege under Federal Rule of Evidence 502(a). This order finds that a clumsy invocation and waiver of the attorney-client privilege does not require subject matter waiver of privileged communications when the privilege holder has not and will not use the disclosed communications in litigation.

         Litigation is a battle of narratives: Whose story should be believed?[1] This is particularly true in trials, and even more so in jury trials. Narratives are based on facts, and facts are developed in discovery. Usually, competing facts exist that are woven into the competing narratives. But, sometimes, parties cannot fully develop facts for their narratives because those facts are privileged from discovery.

         In this case, some of the underlying facts are undisputed. And they are horribly sad. The undisputed facts are a parent's worst nightmare come true. On December 3, 1957, Maria Ridulph was abducted in Sycamore, Illinois. She was only seven years old at the time. Her murdered body was found months later in Galena, Illinois.

         Half a century passed without anyone being charged. Then, in 2008, Jack McCullough's sister (Jeanne) came forward, stating that-fourteen years earlier- in 1994, her mother, while on her deathbed, stated that McCullough killed Maria Ridulph. (Go ahead and take a moment to reflect on that fact.) In June of 2011, McCullough was indicted for the murder. Two months after McCullough was arrested for murder, he was indicted for raping his sister, Jeanne. But on April 11, 2012, he was acquitted of the rape charge.[2] The acquittal occurred before the murder trial. On September 14, 2012, McCullough was convicted for the murder of Maria Ridulph. He was sentenced to life imprisonment.

         In 2016, after an election, the new DeKalb County State's Attorney moved to dismiss the charges against McCullough, and the murder conviction was vacated. In April of 2017, McCullough was granted a certificate of innocence. See 735 ILCS 5/7-702. As happens in seemingly every case involving an overturned conviction, a civil rights suit followed, claiming a vast conspiracy to deprive the once criminal defendant-now turned civil rights plaintiff of his or her constitutional rights.

         In this civil rights suit, McCullough portrays himself as a veteran and grandfather, who was wrongfully convicted and brutally attacked during his wrongful incarceration. In contrast, Defendants[3] portray McCullough as a murdering pedophile, who sexually assaulted his own sisters, among other sinister acts. Through the discovery process, the parties are now seeking to obtain facts to support their respective and diametrically opposed narratives.

         In this process, Defendants seek to require McCullough's attorneys to answer questions relating to his alleged sexual misconduct. Specifically, Defendants' motion to compel (“Motion”) seeks an order that one of McCullough's public defenders answer the following questions “as well as any reasonable and necessary follow-up questions”.

• Did McCullough ever tell her that he had sexual contact with any of his sisters[4]?
• Did McCullough ever tell her that he engaged in any sort of “sex play” with any of his sisters?
• Did McCullough ever tell her that his sisters would have reason to lie to the police because of previous sexual conduct between him and his sisters?
• Did McCullough ever tell her that he had sexual contact with his sister Jeanne that was consensual?
• Did McCullough ever tell her that he had any sexual contact with any of his sisters that was unrelated to the accusations of rape made by his sister Jeanne?
• Did McCullough ever admit that he sexually assaulted a victim identified by the initials M.W.?

         One of Defendants' theories is that McCullough did, in fact, murder Maria Ridulph. In defense of McCullough's claims, they will essentially re-try McCullough for the murder. The “He-Did-It-Defense” is common in wrongful conviction cases. Consequently, Defendants are seeking as much information regarding McCullough's sexual misconduct as possible, including information known to his attorneys, to bolster the sexual motivation theory behind the abduction and murder of Maria Ridulph.

         Defendants claim that by letting McCollough's criminal defense attorneys answer certain deposition questions resulting in exculpatory testimony, he has waived the attorney-client privilege as to the questions identified above. Essentially, Defendants argue that McCullough is selectively waiving the attorney-client privilege to obtain an unfair advantage: he is using the privilege as both a sword and a shield. In contrast, McCullough asserts that he has waived the attorney-client privilege as to the subject matter of “the murder case” (his term; not the Court's).[5] But, according to McCullough, he has not waived the attorney-client privilege as to the subject matter of “the rape case” (again, his term; not the Court's). Moreover, McCullough claims that he has not waived the privilege as to “the rape case” by allowing his attorneys to answer deposition questions regarding the murder and by allowing certain testimony regarding “the rape case” and his relationship with his sisters.

         For the reasons stated below, the Motion is granted, in part, and denied, in part, without prejudice.

         FACTS

         Four depositions are relevant to the Motion. Three public defenders (Robert Carlson, Regina Harris, and Thomas McCulloch-pronounced the same but thankfully spelled differently than the plaintiff) and one investigator for the public defender's office (Crystal Harrolle) were deposed. These deponents were represented by their own counsel, who were distinct from McCullough's counsel. Unsurprisingly, the deponents' counsel took the position that the privilege belonged to McCullough and that if the attorney-client privilege was invoked by McCullough's counsel during the deposition, then the witnesses would not answer the question. But as shown below, occasionally, the deponents triggered the objection.

         Carlson Deposition: No. Privilege Invoked

         Robert Carlson was deposed on February 4, 2019. During his deposition, without objection, Carlson was asked and answered questions about discussions he had with McCullough about testifying in his own defense at the murder trial. So, there was no objection to questions seeking attorney-client privileged communications relating to “the murder case.”

         Harrolle Deposition: Attorney-Client Privilege Invoked for Both “The Murder Case” and “The Rape Case”

         Crystal Harrolle was deposed the next day on February 5, 2019. During her deposition, Defendants' counsel asked if Harrolle had “conversations with [McCullough] about the abduction of Maria Ridulph.” McCullough's counsel did not object, but Harrolle independently asked if a privilege was going to be invoked. McCullough's attorney then asked for a recess “to see if there [were] any privilege issues.” Following a ten-minute recess, the parties went back on the record. See Taylor v. City of Chicago, No. 14 CV 737, 2015 U.S. Dist. LEXIS 126352, at *7(N.D. Ill. Sept. 22, 2015). McCullough's attorney then asserted the attorney-client privilege. So, at this point, in contrast to the Carlson deposition, McCullough's attorneys were asserting the attorney-client privilege as “any communications that [McCullough] had with Ms. Harrolle.” As a result, Harrolle was instructed not to answer the question. Defense counsel then reasonably attempted to determine the scope of the privilege; specifically, whether the privilege was being asserted beyond the time of the representation. After another recess, McCullough's attorney stated that the attorney-client privilege was being invoked across the board: “Mr. McCullough is asserting a privilege over any communications with Ms. Harrolle that were about the representation in the murder case or the rape case.” So, again, in contrast to the Carlson deposition, the attorney-client privilege was being asserted as to “the murder case.” McCullough's counsel refused to place a temporal scope as to when the privilege may have ended, if at all. Defense counsel was rightfully stumped by the response. After repeated efforts to clarify, McCullough's counsel asserted that if the questions pertained to the representation “about the murder, ” then privilege was being asserted because she did not want Defendants “to later be arguing waiver.” Not to be stonewalled, defense counsel drilled down again, and the following colloquy occurred:

Q: So my question is: Are you asserting a privilege as to those communications, regardless of when they happened, even if they happened yesterday.
A: We are asserting a privilege over conversations about the abduction of Maria Ridulph that were had in the context of, you know, representation, you know, and that can happen afterwards. After a criminal trial, you can still go back and have communications that were- that are, you know, that they are testifying about them at a deposition would reveal attorney-client information.

         After some additional unhelpful back and forth, defense counsel asked Harrolle whether she had conversations with McCullough about the abduction of Maria Ridulph; an objection was made; and the witness was instructed not to answer.

         Defense counsel then continued to ask a series of questions regarding conversations Harrolle had with McCullough about the abduction and murder of Maria Ridulph. All questions were met with objections and instructions not to answer.

         During Harrolle's deposition, McCullough's counsel repeatedly asserted privilege objections relating to the abduction and murder of Maria Ridulph. No. distinction existed between “the murder case” and “the rape case.”[6]

         McCulloch Deposition: Privilege Invoked Only to “The Rape Case”

         Thomas McCulloch was deposed in the morning of February 27, 2019. During his deposition, the same defense counsel attempted to delineate the scope of what, if any, privilege would be invoked: “So my question to you is whether or not your client is going to waive attorney-client privilege regarding communications between him and his attorney, which would, obviously, be consistent with what you put in your 26(a) disclosures.” McCullough's Rule 26(a) disclosures specifically identified McCulloch as “an individual likely to have discoverable information” and identified one of the subjects of information as “Plaintiff's consistent declarations of innocence.” Counsel for McCulloch confirmed that McCullough was “waiving the attorney-client privilege.” In response, McCullough's counsel stated, “We are waiving the privilege with respect to this witness as to any communications about the murder trial, that's correct.” This is the first indication in the record as to any distinction of waiver between “the murder case” and “the rape case.” Following that colloquy, defense counsel asked many questions about conversations between McCulloch and McCullough. These questions all related to “the murder case.” All the questions were answered without any objection.

         Harris Deposition: Privilege Invoked Only to “The Rape Case”

         After McCulloch's deposition concluded, Regina Harris was deposed in the afternoon of February 27, 2019. During her deposition, while Harris was answering a question, McCullough's attorney interrupted to address a privilege issue. McCullough's counsel stated, “I am going to stop right there to clarify a privilege issue, which is we are going to assert the privilege over any communications with Ms. Harris that pertain to representation of Jack McCullough in the rape case, but not any communications about the Maria Ridulph case.” Defense counsel eventually asked Harris about communications she had with McCullough regarding the abduction and murder of Maria Ridulph. Counsel for Harris stopped the questioning to ensure that McCullough was waiving the attorney-client privilege. McCullough's counsel affirmatively stated that “Mr. McCullough will waive privilege over communications about the Ridulph criminal case.” Harris then testified about conversations she had with McCullough about Maria Ridulph's abduction and murder, including McCullough's alibi defense. Defense counsel then questioned Harris about whether McCullough knew Maria Ridulph and what he said about her. Specifically, counsel asked whether McCullough told Harris what Maria Ridulph physically looked like and whether McCullough thought she was “lovely.”[7] Harris testified that McCullough said, “She was a sweet little kid.” Defense counsel also asked Harris about conversations between McCullough and her about his girlfriend, evidence relating to the alibi defense, and how McCullough learned about the abduction of Maria Ridulph. Harris answered these questions without McCullough's counsel invoking any privilege objection.

         Defense counsel then started a line of questioning regarding conversations Harris had with McCullough about his sisters. McCullough's counsel then injected the privilege issue by stating, “Can we separate that for just a second, just to remind you that we are going to assert the privilege over any communications between Jack McCullough and this witness about the rape case.” Defense counsel then asked about conversations between Harris and McCullough about his sisters. McCullough's counsel then asked for a recess to discuss possible privilege issues. When the deposition resumed, Defendants' counsel continued to ask questions about conversations between Harris and McCullough about his sisters. Defense counsel then asked the following question, which prompted the following answer without objection.

Q: Do you recall Jack [McCullough] telling you whether or not he had a good relationship or bad relationship with his sisters?
A: He thought he had good relationships with them and was kind of astounded by the ...

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